The Closet Racism of MSNBC

In today's edition of Impromptus, Jay Nordlinger has some absolute gems that bear repeating.  Here is one of them:

A commentator for MSNBC, that fountain of hate, said this about Herman Cain and white Republicans: “I think they like him because they think he’s a black man who knows his place.”

And what would Cain’s place be? Federal Reserve banker, CEO, presidential candidate?

It's an absurdity that liberals today are able to play the every-Republican-is-a-closest-racist card and get away with it.  Has anyone actually read any history before?  The Democrat party was solidly in the South from around the 1830s to around the 1960s, and the Republican party was created in the 1850s in partial response to the growing slave power of the South.  In 1915, Woodrow Wilson held the first movie screening in the White House.  The movie?  It was D.W. Griffith's The Birth of A Nation.  I could go on, but it's something too low to waste any more time on.  It's just odd that the Republican Party seems to attract the inherent racism label from Democrats when history says something else entirely.

More on Romney's Flips and Flops

This past weekend, I posted George Will's latest column in which he took Mitt Romney to task for his muddled and contradictory views on a number of different topics.  No doubt this is a problem for Romney as it looks like he is one of the front runners for the Republican nomination in 2012.

I have noticed that Democrats have now gotten on board the conservative attacks on Romney.  On Meet the Depressed, David Plouffe, Obama's senior political advisor, said that Romney has "no core" and on "issue after issue he has moved all over the place."  Jennifer Granholm, former Democrat Governor of Michigan, had similar sentiments later in the panel section.  The Democrats aren't even attacking the positions Romney is taking; they are attacking his seeming lack of conviction just as are conservatives. They obviously want to use this to drive a wedge between Romney supporters and conservatives who are very wary of the specter of a Romney presidency. And should Romney win the nomination, this will no doubt be a major problem in the coming months.

If Romney can give justification for his political positions, I think everyone will better be able to understand his thought process and how he thinks through issues.  In the debates, Romney has slid by without really having to talk on the level of principle.  For instance, how exactly is Romneycare in principle different than Obamacare?  He has never had to answer that seemingly straightforward question.  Or perhaps this question:  Gov. Romney, why are you now pro-life when, as little as ten years ago, you were pro-choice?  What changed?  Now, I understand that people can change their minds, even about the most important issues.  No one person--especially a politician--is going to be 100% consistent throughout their life.  What is important are the reasons for the switch.  The plausibility and thoughtfulness of the answers Romney may give to those questions would show how principled he really is.       

Solitary, Poor, Nasty, Brutish, and Short

In yesterday's edition of the G-File (you can subscribe here if you don't already get it), Jonah Goldberg hit on an important theme that, for the most part, has gone virtually unnoticed.  Obama has lately been harping on the point that Republicans want the government to tell Americans that they are on there own.  Here is Obama during his acceptance speech at the 2008 Democratic convention:

In Washington, they call this the Ownership Society, but what it really means is - you're on your own. Out of work? Tough luck. No health care? The market will fix it. Born into poverty? Pull yourself up by your own bootstraps - even if you don't have boots. You're on your own. 

Goldberg has a number of good and funny insights but perhaps the most interesting is the idea that Obama's logic here implies Hobbes' conception of the state of nature.   Goldberg elaborates:

...philosophically, Obama's vision is 100 percent catawampus (that's right, catawampus) from the traditional American understanding of government. He sees civil society as a vacuum where, absent the federal government, we are autarkic, anarchistic individuals left to fend for ourselves, drinking puddle water and using cat fat for Chapstick...If the federal government won't do it -- whatever it is -- then we are all on our own. But that is not how the vast majority of Americans live. Nor do we define our understanding of communal, cooperative life purely through the prism of the federal government. If the federal government won't organize a bake sale at my kid's school, we are indeed "on our own," but we are not alone. 

In Hobbes' view, the state of nature is nothing more than a state of war where all are against all.  The central animating principle in human nature is the fear of violent death.  Government is instituted by social contract but the obligation upon which that contact stands is one completely void of any moral purpose since the obligation is propped up by passions and force rather than reflection and choice.  This means that before that contract, there are no obligations, no standards that bind anyone's actions.  Right and wrong, just and unjust, are meaningless and have no objective standards other than the positive law, or what is laid down by the sovereign. 

The Founders rejected this political philosophy.  James Wilson, a signer of both the Declaration of Independence and the Constitution, stated that "Hobbes's 'narrow and hideous' theories are 'totally repugnant to all human sentiment, and all human experience" in his Lectures on Law.  In 1775, Alexander Hamilton, in The Farmer Refuted, unequivocally rejected Hobbes (and Obama):

There is so strong a similitude between your political principles and those maintained by Mr. Hobb[e]s, that, in judging from them, a person might very easily mistake you for a disciple of his. His opinion was, exactly, coincident with yours, relative to man in a state of nature. He held, as you do, that he was, then, perfectly free from all restraint of law and government. Moral obligation, according to him, is derived from the introduction of civil society; and there is no virtue, but what is purely artificial, the mere contrivance of politicians, for the maintenance of social intercourse. But the reason he run into this absurd and impious doctrine, was, that he disbelieved the existence of an intelligent superintending principle, who is the governor, and will be the final judge of the universe.

Hamilton's prescription to this understanding was to "study of the law of nature" and the works of "Grotius, Puffendorf, Locke, Montesquieu, and Burlemaqui."  I would offer that same prescription to President Obama.  Even more than just sheer study, I would invite Obama to drop by his local church or boy scout service project to see what people are really like without direct government help and assistance at every turn.  Surely there is room for charity and everyone realizes that people do fall onto hard times, but as Ronald Reagan said, "The nine most terrifying words in English language are, 'I'm from the government and I am here to help."

Romney the Pretzel

In his much-hyped column, George Will disassembles Mitt Romney, the candidate.  Here is Will on Romney's principled stance on ethanol:

In May, in corn-growing Iowa, Romney said, “I support” — present tense — “the subsidy of ethanol.” And: “I believe ethanol is an important part of our energy solution for this country.” But in October he told Iowans he is “a business guy,” so as president he would review this bipartisan — the last Republican president was an ethanol enthusiast — folly. Romney said that he once favored (past tense) subsidies to get the ethanol industry “on its feet.” (In the 19th century, Republican “business guys” justified high tariffs for protecting “infant industries”). But Romney added, “I’ve indicated I didn’t think the subsidy had to go on forever.” Ethanol subsidies expire in December, but “I might have looked at more of a decline over time” because of “the importance of ethanol as a domestic fuel.” Besides, “ethanol is part of national security.” However, “I don’t want to say” I will propose new subsidies. Still, ethanol has “become an important source of amplifying our energy capacity.” Anyway, ethanol should “continue to have prospects of growing its share of” transportation fuels. Got it? 

And here is the devestating last paragraph:

Republicans may have found their Michael Dukakis, a technocratic Massachusetts governor who takes his bearings from “data” (although there is precious little to support Romney’s idea that in-state college tuition for children of illegal immigrants is a powerful magnet for such immigrants) and who believes elections should be about (in Dukakis’s words) “competence,” not “ideology.” But what would President Romney competently do when not pondering ethanol subsidies that he forthrightly says should stop sometime before “forever”? Has conservatism come so far, surmounting so many obstacles, to settle, at a moment of economic crisis, for this? 

Ouch.  But very true.  Will has hit on an interesting phenomena that has been with the Republican party and their language now for some time.  Is the problem with Obama is that he can't run government sufficiently enough like a business or is the problem that Obama has all but thrown the Constitution under the wheels of a moving bus?  Romney's argument always seems to imply the former but the candidate we need has to argue the latter. 

No Jobs For You

This is great:

Animals Have Rights Too!!

This story is unbelievable but it strangely enough falls in line with the general direction of jurisprudence in the modern day:

A federal court is being asked to grant constitutional rights to five killer whales who perform at marine parks - an unprecedented and perhaps quixotic legal action that is nonetheless likely to stoke an ongoing, intense debate at America's law schools over expansion of animal rights.

People for the Ethical Treatment of Animals is accusing the SeaWorld parks of keeping five star-performer whales in conditions that violate the 13th Amendment ban on slavery. SeaWorld depicted the suit as baseless.

Laurence Tribe, professor of law at Harvard, gave his support of PETA's case stating that "[p]eople may well look back at this lawsuit and see in it a perceptive glimpse into a future of greater compassion for species other than our own."

So I guess the next logical step is to enact laws mandating that only animals that consent to be sold can be lawfully held by their masters  And concomitant to this is that animals will now have legal standing which means that they now will also have to abide by the laws, e.g., no urinating in public parks, and no more breaking into trashcans on garbage day.

Of course Tribe and other fellow supporters of animal rights in the law professoriat would never think of including fetuses as deserving of protection under the Constitution...

Romney's Pass

During a visit to Ohio yesterday, Mitt Romney declined to take a stand on Issue 2--a citizen-generated ballot initiative that, if voted down, would repeal Senate Bill 5, a law passed by both the House and Senate and signed by Governor Kasich.  SB 5 revises collective bargaining laws concerning all public employees, puts teachers on a merit-based pay system, and requires all public employees to pay 10 percent of their pension and 15 percent of their healthcare--something that already applies to the private sector and Ohio legislators.

Peter Hamby from CNN tweeted that during Romney's visit to phone banks full of volunteers calling Ohioans to support Issue 2, Romney refused to take a stand.  A Romney spokesperson later stated that “Gov. Romney believes that the citizens of states should be able to make decisions about important matters of policy that affect their states on their own.”  But back in June, Romney wrote a Facebook post that said the following:  “I stand with John R. Kasich and Ohio’s leaders as they take on this important fight to get control of government spending. Please visit www.BetterOhio.org for more information."  And today, Romney, seeming to sense the mistake he had made, issued a strong endorsement of Issue 2.

Romney seems to support Issue 2 but why would he, in an Issue 2 supporter-filled phone bank, decline comment?  So just because he supposedly feels strongly for states' rights, that means he now cannot make a reasoned judgement on anything completely within the border of a state?  How was he able to talk about and come to a judgement on that same issue back in June, decline to support that issue yesterday, and now today, decide that he can openly support it again?  This all makes no sense and does not bode well for a man who, to put it mildly, has not exactly held firm to conservative principles.

Herman Cain's Strange Ad

This campaign ad, which I guess was only intended for Cain's volunteers, leaked online.  It is a cross between Aaron Eckhart's character in Thank You For Smoking and the typical awkward guy found in any high school across America.  And what else would you expect to hear from your own campaign manager? Enjoy.

The Natural Law Manifesto

If you are unsure about natural law and how it applies, or should apply, to our politics today, this new essay by Hadley Arkes is indispensable. 

In a separate shorter essay, Arkes comments on the opening of a new center for natural law--a joint project between Arkes and the Claremont Institute geared towards new law school graduates who want to clerk for a Supreme Court Justice.  As Arkes maintains, "the natural law finds its ground in 'the laws of reason,' not in appeals to faith or 'belief' or woolly sentiment."  This understanding was firmly grasped by the American Founders who rooted our country and our politics upon these truths, applicable to all men and all times:

At the time of the American Founding, Alexander Hamilton thought it critical to reject the argument of Thomas Hobbes that all morality is conventional; that until laws are made, there can be no clear sense of right and wrong. What Hobbes rejected, said Hamilton, was the existence of that “superintending principle,” that God who is the source of “an eternal and immutable law, which is. . .obligatory upon all mankind, prior to any human institution whatever.” Even when governments break down, there is no “right” to rape or murder or commit any other wrongs, as though there was no right and wrong without the law.

This understanding is what judges, lawyers, and Americans of every stripe need to again become familiar with.

Charles Kesler on the Republican Debates

Charles Kesler, a senior fellow at the Claremont Institute, has some thoughts on the Republican debates in the fall edition of the Claremont Review.  Here is Kesler:

For an office designed at least partly with George Washington in mind, debating skills were never a high priority. The president is commander-in-chief of the armed forces; has the power to make treaties and appoint ambassadors, Supreme Court justices, and cabinet officers (with the Senate's advice and consent); and wields the veto pen and issues pardons and reprieves at his discretion. But none of these or his few other constitutionally prescribed powers and duties requires him to debate anyone. The tradition of presidential debating is not only relatively new (Kennedy-Nixon in 1960 was the first), it tests an art or aptitude that is irrelevant to the job.

A devestating critique of how the current debate structure hinders rather than helps us elect the right person for the job:

With one minute for answers, 30 seconds for rebuttals, a line of candidate—Rockettes each waiting to show some leg, preening questioners trying to outshine the candidates, additional queries pouring in from Facebook, Twitter, Google, and other parts of la-la land, and video clips of past "performances" at the ready—if anything resembling a debate takes place in this GOP circle of hell it's a miracle. When Lincoln and Douglas went at it in the 1858 Senate race, they spoke for three hours-an hour-and-a-half each, on the issues as they defined them, without benefit of media clergy. The reporters stood or sat quietly in the audience and took notes. The thousands who had assembled to witness the debate (there were seven of them, up and down Illinois) had to strain to hear, for there were no microphones and loudspeakers, but the speeches were worth hearing.

The current focus on debates emanates most notably from the political political philosophy of the Progressives who reduced politics chiefly to speeches and rhetoric.  Politics was no longer concerned with the consent of the governed because politicians, now dubbed "leaders," were now concerned with "getting things done."  Leaders would be elected who had "vision" and saw beyond the curve of the horizon line.  The only permanence of any kind was the principle of constant change and growth towards a perfection of the citizens through the state.

Both political parties have taken much of progressive theory wholesale, without questioning the reasons why we do the things we do in our politics today. 

Is the Declaration of Independence Illegal?

This is an interesting story that I had not run across until now.  A debate was held in Philadelphia last Tuesday and centered on the legality of the Declaration of Independence.  This debate pitted a team of American lawyers on one side (not a good start) and a group of British barristers on the other.  Here was the case the Americans presented: 

The Declaration is unquestionably "legal". Under basic principles of "Natural Law", government can only be by the consent of the people and there comes a point when allegiance is no longer required in face of tyranny.

The legality of the Declaration and its validity is proven by subsequent independence movements which have been enforced by world opinion as right and just, based on the fundamental principles of equality and self-determination now reflected in the UN Charter.

And here was the British case:

The Declaration of Independence was not only illegal, but actually treasonable. There is no legal principle then or now to allow a group of citizens to establish their own laws because they want to. What if Texas decided today it wanted to secede from the Union?

Lincoln made the case against secession and he was right. The Declaration of Independence itself, in the absence of any recognised legal basis, had to appeal to "natural law", an undefined concept, and to "self-evident truths", that is to say truths for which no evidence could be provided.

The grievances listed in the Declaration were too trivial to justify secession. The main one - no taxation without representation - was no more than a wish on the part of the colonists, to avoid paying for the expense of protecting them against the French during seven years of arduous war and conflict.

Unbeknownst to the American lawyers, the Declaration of Independence was of course illegal--that is, under British law.  That's why Americans appealed to their rights as human beings instead of their rights as Englishmen.  While it is true that Americans years before the Revolution did at one time appeal to their rights as Englishmen, this argument gave way to an appeal to the "Laws of Nature and of Nature's God."  Thomas Jefferson's Summary View of the Rights of British Americans, published in 1774, makes this distinction rather clear.  Though Jefferson at the time was still trying to make an argument of prudence that was based on an appeal to the traditional rights of Englishmen, he nevertheless grounded that tradition upon standards outside of the positive law.

The British barristers had it absolutely right that the signers of the Declaration were committing treason; but again, they were committing treason in the eyes of the Crown.  Why else would the Founders mutually pledge their lives, fortunes, and sacred honor in signing that document?

The barristers, slyly using Lincoln to attack the "secession" of the colonies in 1776, instead repeated the same arguments used by John C. Calhoun who conflated the right of revolution and a supposed constitutional right to secession.  Lincoln always maintained the distinction which Calhoun blurred and saw secession as nothing more than sugar-coated rebellion.  Lincoln knew that Southerners in 1861 could not openly make an argument appealing to the higher law like the Founders had done in the Declaration because that law also would have supplied the slaves all the more reason to revolt against their masters.  Furthermore, Alexander Stephens, Vice President of the Confederacy, and Senator Pettit of Illinois, among other Confederate sympathizers, made arguments attacking the principle that all men are created equal, a principle of the higher law. 

Although the American lawyers appealed to natural law in arguing their case (an oddity considering the status of natural law in law schools today), they didn't seem to understand the distinction between natural law and positive law.

John Yoo on Justice Thomas

John Yoo, a former clerk for Justice Thomas, weighs in on Thomas's 20th anniversary as an Associate Justice on the Supreme Court.  Here is Yoo in the Wall Street Journal:

Clarence Thomas set the table for the tea party by making originalism fashionable again. Many appointees to the court enjoy its role as arbiter of society's most divisive questions—race, abortion, religion, gay rights and national security—and show little desire to control their own power. Antonin Scalia, at best, thinks interpreting the Constitution based on its original meaning is "the lesser evil," as he wrote in a 1989 law journal article, because it prevents judges from pursuing their own personal policies. Justice Thomas, however, thinks that the meaning of the Constitution held at its ratification binds the United States as a political community, and that decades of precedent must be scraped off the original Constitution like barnacles on a ship's hull.

During Thomas's first years on the court, liberals loved to paint him as a blind follower of Justice Scalia, implying that he was too dumb to think for himself.  Interestingly, there was never any serious argument from conservatives that Justice William Brennan wrote all of Justice Thurgood Marshall's opinions, even though the two were very close in jurisprudence. 

On Justice Thomas's dedication to upholding the principle of equality:

In Adarand v. Pena (1995), striking down racial quotas in government contracting, Justice Thomas traced the nation's commitment to racial equality through the Constitution directly to the Declaration of Independence's promise that all men are created equal, just as did Abraham Lincoln. Affirmative action is "racial paternalism," he wrote, whose "unintended consequences can be as poisonous and pernicious as any other form of discrimination."

It was definitely a blessing in disguise that Thomas was not nominated as Chief Justice, because he is still able to put upholding the Constitution and not coalition forming as his central axiom.

Is Herman Cain Pro-Life?

Over at Commentary, Pete Wehner, former speechwriter for President George W. Bush, takes Hermain Cain to task for his interesting answer on abortion during an interview with Piers Morgan this past week (does anyone watch that show, anyone?).  Here is Wehner:

According to Cain, he believes life begins at conception. When it comes to abortions there should be no rape or incest exceptions. But–and it’s a mighty big but–“it comes down to it’s not the government’s role or anybody else’s role to make that decision.” Cain then went on to say this: “So what I’m saying is it ultimately gets down to a choice that that family or that mother has to make. Not me as president, not some politician, not a bureaucrat. It gets down to that family. And whatever they decide, they decide. I shouldn’t have to tell them what decision to make for such a sensitive issue.”

Cain later declared that he is 100% pro-life.  But if Cain's declaration merely affirms his understanding displayed in the interview above, then he is certainly in no way pro-life.  HotAir documents Cain's almost indecipherable stance on abortion through the years.

As Hadley Arkes has pointed out time and time again, saying that abortion is all about a "choice" totally rips the moral principles completely out of the equation.  For this is the same argument present during the antebellum period by those who argued that the question of slavery be left up to the people of the territories.  Stephen Douglas, who, to find a compromise, authored the Kansas-Nebraska Act in 1854 which would leave the "choice" of whether a territory would have slavery or not up to the people in the territories.  But, as Lincoln said, no one has a right to do a wrong; no one has a right through the democratic process to choose something completely at odds with the principles of democracy itself.  By saying that it is valid to have a vote on slavery, slavery is then no longer a wrong but is within a group of unobjectionable things that the citizens can debate on.  In Cain's implicit logic, if this is what he really believes, there is little difference in principle on citizens debating between what day they would like their garbage to be picked up and whether or not they would like have slaves helping them with their daily chores.  To believe in "choice" is to say nothing about what ends that choice is directed towards.

UPDATE:

At the blog for the Washington Examiner, Philip Klein notes Cain's latest attempt to clarify his abortion stance during an interview with FoxNews:

Cain attempted to argue that when he said in a CNN interview earlier this week that the decision was ultimately up to the family, what he really meant was that it was up the family as to whether they wanted to break the law.

“I do not think abortion should be legal in this country,” Cain said on Fox today. “Abortion should not be legal. That is clear. But if a family made the decision to break the law, that’s that family’s decision.”

Very strange.  You wonder on something this important why he doesn't have a firmer grasp of these things.

In Case Anyone Forgot, Joe Biden is Still Our VP

Well let me tell you, it’s not temporary when that 911 call comes in and a woman’s being raped if a cop shows up in time to prevent the rape.  It’s not temporary to that woman.

It’s not temporary to the guy whose store is being held up and a gun is being pointed to his head.  If a cop shows up and he’s not killed, that’s not temporary to that store owner.

Give me a break, "temporary"!  I wish these guys that thought it’s temporary, I wish they had some notion what it’s like to be on the other side of a gun. Or a 200 pound man standing over you telling you to submit. Folks, it matters. It matters!” - Joe Biden, Philadelphia, October 18, 2011

In Flint, Michigan, they cut their force in half; murder rates have doubled in the last year…Police departments, as I said, in some cases literally cut in half, like Camden, New Jersey, and Flint, Michigan. In many cities, the result has been -- and it's not unique -- murder rates are up, robberies are up, rapes are up…I said rape was up, three times in Flint. There are the numbers. Go look at the numbers.” - Joe Biden, October 19, 2011, on Capitol Hill

The above statements came from our vice president on the opponents of the president's job bill (which the VP must have forgotten includes Democrats as well).  Even Glenn Kessler, the Fact Checker at the Washington Post, called Biden out on his story on Flint, MI and rated his argument four Pinochios.  Here is Kessler:

More important than the raw figures is the rate per 100,000 individuals. Murder did go up—though the rate did not double from 2009 to 2010, as Biden claimed. But rape has gone down. Biden actually asserted it had tripled.

And more:

This brings us to the central point of Biden’s argument--that fewer police officers means more crime. More police officers might certainly mean more arrests and convictions, particularly for less noteworthy crimes, but researchers have strived to make a link between murders and officers on the street.

University of Chicago economist Steven D. Levitt, who examined ten possible factors for why crime fell in the 1990s, made a noteworthy effort in 2004 to assess the importance of additional cops. He included the increase in police as one factor that could explain the decline in crime. But he also said that other key factors included a rising prison population, the receding crack epidemic and even the legalization of abortion (which resulted in fewer unwanted births).

In other words, even if you could make a link, it is likely one of many factors that affects the crime rate, not the single one, as Biden suggests. The FBI itself lists more than a dozen variables in what causes crime to increase in a community.

Also, this is the man who was chairman of the Senate Judiciary Committee during the nomination hearings of both Robert Bork and Clarence Thomas.  Scary.

Jimmy Obama

The similarities between Jimmy Carter's malaise speech and the typical Obama speech are striking:

To Do My Duty, To God and My Country

Last year was the one hundredth anniversary of the founding the Boy Scouts.  This year, the centennial anniversary edition of the Scout Handbook, which was originally titled The Official Handbook for Boys, was published.  In the Fall Edition of the Claremont Review of Books, Kathleen Arnn compares the original handbook to the current handbook--the 12th edition which was published in 2009--and finds that "decades of aggressive political correctness have had their effect, and the Scouts have lost some of the confident American boyishness that loves heroes and makes for heroes." 

Here is Arnn on the virtues of the original handbook:

The handbook doesn't shrink from invoking shame to motivate Scouts. For example, under Courage: "It is horrible to be a coward. It is weak to yield to fear and heroic to face danger without flinching." There are examples, like the dying Indian who "faced death with a grim smile upon his lips and sang his own death song" and the cowardly knight who fled the battle of Agincourt, much to the disappointment of his lady at home. The original handbook teaches through heroes, providing Scouts with a host of manly examples to emulate. Above all, it cultivates spiritedness, teaching Scouts to defend their honor, their friends, and their country like the great men of the past who "were accustomed to take chances with death" for the sake of the things they loved.

The original handbook assumes that one must know something about the United States to be a citizen of it. The chapter on Patriotism and Citizenship is long and impressive. Several pages detail the first singing of the Star-Spangled Banner, the meaning of the stars and stripes, and rules for flying, folding, and retiring the flag. Much of the chapter is a lesson in American history, covering the Revolution, the War of 1812, the Mexican War, the Civil War, the Spanish-American War, and the gradual conquest of the frontier.

 On the changes in the 12th edition of the handbook:

Its discussions of character and of citizenship are very different, too. Character formation is still a top priority for the BSA, but the latest handbook has largely replaced the traditional language of virtue with the progressive language of leadership, and this is not an improvement. The chapter on Chivalry has been completely removed, and the chapter on Leadership, which is presumably meant to replace it, has little to say about moral virtue beyond the Scout Oath and Law. Instead, it presents the EDGE method of teaching (explain, demonstrate, guide, and enable), describes the difference between short term and long term goals, and lists tips for using the internet to become a leader in your community. These may be tools of leadership; but tools are useless or worse in the hands of the wrong people and, compared to the original, the new handbook does little to explain how not to be the wrong kind.

Boy Scouts are still taught to follow their consciences: do the right thing, even though it may be difficult, which is sensible advice as far as it goes. But it does not go far enough. The old handbook treated the subject as if the conscience needed to be formed before it could be followed. Scouts needed to be habituated to the virtues through study and practice, dutifully doing the right thing until it became second nature. This was a stern discipline. Many would not succeed at it; those who did could be proud.

This is too bad as I was a Scout myself.  At that time, I had no idea of the implications I was absorbing from this deadening of virtue and loss of manliness described by Arnn.  Although it seems that the BSA has somewhat succumbed to political correctness of the current day, it still teaches, albeit more indirectly now, about virtue and the idea of absolute truth grounded in a Creator--much welcome lessons that are in contradistinction to most of what education has to offer today.  But as Arnn ominously notes in the last paragraph, "In this and in many other ways today's Boy Scouts are as good as ever, and better than their handbook. But their handbook suggests what their leadership believes, and foreshadows what they may become."

Harry Belafonte is Sleeping on the Job

Below is a Youtube video of Harry Belafonte sleeping when he was supposed to be doing an interview.  This is the same guy who, when awake, regularly questions Herman Cain's intelligence and argues on the inherent racism of the Republican Party.

Occupy the Tea Party

Here is President Obama today on the similarities between the Tea Party and Occupy Wall Street:

President Barack Obama on Tuesday said the Occupy Wall Street movement is “not that different” from some of the tea party protests, his strongest statement yet on the demonstrations spreading across the country.

“I understand the frustrations being expressed in those protests,” Obama said in an interview with ABC News in Jamestown, N.C., the first stop on the second day of his bus tour to sell his $447 billion American Jobs Act.

“In some ways, they’re not that different from some of the protests that we saw coming from the tea party,” Obama told ABC’s Jake Tapper. “Both on the left and the right, I think people feel separated from their government. They feel that their institutions aren’t looking out for them.”

I'm not going to focus on Obama's claim that the Tea Party and Occupy Wall Street are, in some way, not all that different ( I tend to the see the Tea Party as being closer to the sentiments of the American Revolution and Occupy Wall Street as closer to the French Revolution). 

What is interesting is the implication of what the president said.  I thought that to the Left, the Tea Party represents racism, bigotry, sexism, corporatism, astro-turfism, Islamophobia, old white people, the Koch brothers, etc.  Even if the two groups are at all similar, which they might be in some strained way, why would the president declare in public this comparison when considering this implication?

School's Out

During the usual Obama news dump that occurred last Friday, this story, with important implications on the future of Obamcare, went mostly unnoticed: 

WASHINGTON — The Obama administration's signature health overhaul law, under relentless assault by Republicans, has suffered its first major casualty — a long-term care insurance plan.

The program, expected to launch in 2012, had been dogged from the beginning by doubts over its financial solvency.

Proponents, including many groups that fought to pass the health care law, have vowed a vigorous effort to rescue the program, insisting that Congress gave the administration broad authority to make changes. Long-term care includes not only nursing homes, but such services as home health aides for disabled people.

And more:

Known as CLASS, the Community Living Assistance Services and Supports program was a long-standing priority of the late Sen. Edward M. Kennedy, D-Mass.

Although sponsored by the government, it was supposed to function as a self-sustaining voluntary insurance plan, open to working adults regardless of age or health. Workers would pay an affordable monthly premium during their careers and could collect a modest daily cash benefit of at least $50 if they became disabled later in life. The money could go for services at home or to help with nursing home bills.

But a central design flaw dogged CLASS. Unless large numbers of healthy people willingly sign up during their working years, soaring premiums driven by the needs of disabled beneficiaries would destabilize it, eventually requiring a taxpayer bailout.

After months insisting that could be fixed, Health and Human Services Secretary Kathleen Sebelius finally acknowledged Friday she doesn't see how.

"Despite our best analytical efforts, I do not see a viable path forward for CLASS implementation at this time," Sebelius said in a letter to congressional leaders.

It's amazing that this act, known as CLASS, was, from the beginning, never financially solvent.

Here is Andrew Sullivan from NRO with more on the budgetary shenanigans behind the CLASS Act:

What kind of depraved accounting scheme lets Congress enact into law a program that literally cannot sustain itself from the get-go? A program that the CBO, in accordance with an absurdly flexible set of budgetary rules, scored as deficit-reducing! Not only that, but the 10-year’s worth of CLASS Act premiums accounted for nearly half ($70 billion out of $143 billion) of the overall “savings” in Obamacare. In fact, the law might well have never passed without them, as they were included to give the (false) appearance of fiscal sanity.

The CLASS Act was supposed to bring in a savings of $53.6 billion over five years.  Now, with the phony numbers out of the way, an additional $53.6 billion will be needed in order to cover the cost of Obamacare for the first six years.

Withe the looming Supreme Court decision on the constitutionality of the individual mandate due next summer, Obamacare looks to be desperately trying to stay afloat with no avail.

By Any Means Necessary

At Ricochet, Tim Groseclose takes note of what Jesse Jackson Jr. recently said during an interview with the Daily Caller: 

“We’ve got to go further. I support what [Obama] does. Clearly, Republicans are not going to be for it [Obama's "jobs" bill] but if the administration can handle administratively what can be done, we should pursue it. And if there are extra-constitutional opportunities that allow the president administratively to put the people to work, he should pursue every single one of them.

Jesse Jackson Jr. is not the only "mainstream" liberal to call for such actions. 

It's interesting that now during the Obama Administration, talk of enacting extra-constitutional measures is roundly applauded by liberals.  Of course during the Bush Administration, the worst charge leveled by liberals against Bush was his supposed trampling of constitutional rights of both citizens and enemy combatants alike.  It can't be said enough that this progressive impulse--the dislike of the structure and principles of the Constitution--is always lurking just below the surface.  At least earlier progressives were more open about it.

Only Liberal Cliches Considered

Earlier this week on NPR's "All Things Considered," Nina Totenberg rehashed some of the same talking points and cliches that have been around ever since Justice Clarence Thomas was confirmed for a seat on the Supreme Court in 1991.  One of Totenberg's more egregious claims involve Justice Thomas's dissent in Hudson v. McMillian.  She parrots the argument of Linda Greenhouse who, a day after the ruling, wrote a front page article in the New York Times titled "The Youngest, Cruelest Justice" that was highly critical of Thomas's dissent.  Here is Totenberg:

TOTENBERG: Thomas, the second African-American appointed to the court, has proved to be the ideological opposite of the man he replaced, Thurgood Marshall, the first African-American. A stark example of their differences is in cases involving prisoners beaten or denied essential medical care.

Marshall wrote key decisions declaring such treatment a violation of the Constitution's ban on cruel and unusual punishment. At his confirmation hearing, Thomas seemed to agree, noting that every day as an appeals court judge, he looked out the window at the federal courthouse to see busload after busload of criminal defendants being brought to court.

Justice CLARENCE THOMAS: And I say to myself almost every day, but for the grace of God, there go I. So I can walk in their shoes and I could bring something different to the court.

TOTENBERG: Two months later, Thomas, now a Supreme Court justice, dissented from a Supreme Court opinion upholding an $800 damage award to a prisoner who was beaten so severely by prison guards that his teeth and dental plate were broken. Thomas, joined only by Scalia, said that quote, "a use of force which causes only insignificant harm to a prisoner is not cruel and unusual punishment."

At NRO Bench Memos, Ed Whelan notes that the injuries sustained by the prisoner were not in the purview of the case because even the lower court had concluded that the injuries were minor.  This fact, which evidently escaped the notice of both Greenhouse and Totenberg, is noted in the opening sentences of Thomas's dissent:

We granted certiorari in this case “limited to the following question,” which we formulated for the parties:

“Did the Fifth Circuit apply the correct legal test when determining that petitioner’s claim that his Eighth Amendment rights under the Cruel and Unusual Punishment Clause were not violated as a result of a single incident of force by respondents which did not cause a significant injury?”

Guided by what it considers “the evolving standards of decency that mark the progress of a maturing society,” the Court today answers that question in the negative. I would answer it in the affirmative, and would therefore affirm the judgment of the Fifth Circuit. I respectfully dissent.

Once again:  The injuries sustained by the prisoner were never under review by the Supreme Court.

For a good essay on Justice Thomas, try this one by Ralph Rossum, Salvatori Professor of American Constitutionalism at Claremont McKenna College.

Liberalism vs. Liberty

At the blog for the American Enterprise Institute, Steven Hayward notes that for well over a century, liberalism at different times has been at odds with and lovers of democracy.  This pivots upon how closely the public will is oriented toward the ends of liberalism itself.  Hayward explains that even when progressives have championed democracy and greater expression of the public will, it is at the cost of liberty of everyone.

At the core of “Progressivism,” as it was called then and is again today, was the view that more and more of the business of individuals and society was best supervised by expert administrators sealed off from the transient pressures of popular politics. So at the same time that Progressives championed “more democracy” in the form of populist initiatives, referendum, and recalls, they also developed a theory deeply anti-democratic in its implications.

So even with the introduction of more democratic elements to supposedly hear more clearly the voice of the people, progressive politics is actually at odds with individual liberty and the principle of consent of the governed.  It's important to remember that for progressives, the scope of politics is both lowered and reduced.  Politics is no longer about open deliberation and statesmanship; instead it is mainly focused on the rule of experts ensconced in a far-away capital.  The administrative state would soon take over things once thought to be in the realm of politics, and as Hayward points out, thus began the rise of the bureaucracy and the slow drift away from the republican form of government created by the Founders:

As the famous phrase from Saint-Simon had it, “the government of men is to be replaced by the administration of things.” But this undermines the very basis of democratic self-rule. No one better typifies the incoherence of Progressivism on this point than Woodrow Wilson, an enthusiastic theorist of the modern administrative state who couldn’t clearly express why we would still need to have elections in the future. In Wilson’s mind, elections would become an expression of some kind of watery, Rousseauian general will, but certainly not change specific policies or the nature of administrative government.

  

Joe the Foolish

Today in Flint, Michigan, Vice President Joe Biden, touting President Obama's jobs bill, said the following:

In 2008, when Flint had 265 sworn officers on their police force, there were 35 murders and 91 rapes in this city," Biden said. "In 2010, when Flint had only 144 police officers, the murder rate climbed to 65 and rapes--just to pick two categories--climbed to 229. In 2011, you now only have 125 shields. God only knows what the numbers will be this year for Flint if we don't rectify it."

Oh, ok...now Republicans, the only party serious about reigning in the debt and spending of the federal government, are going to indirectly cause more rapes, death, and overall mayhem.  Thanks for the words of wisdom, Joe!

Lincoln's Religious Test

Since Rev. Robert Jeffress, the man who introduced Rick Perry this past weekend at the Values Voter Summit, called Mormonism a "cult," liberals and conservatives both have denounced him as a bigot and a radical.  Some conservatives have cited Article VI of the Constitution which states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  But, as Matthew Franck points out on Bench Memos at National Review Online, this obscures the problem more than it helps:

Well, I’m all for clarity, so let me be clear here about the problem I see in these recitations of the “no religious test” clause: By its terms, it doesn’t apply to the decisions of voters at all.  Like every other passive-voiced prohibition in the original Constitution and the Bill of Rights (e.g., “No Bill of Attainder or ex post facto Law shall be passed,” or “No person shall . . . be deprived of life, liberty, or property without due process of law”), the “no religious test” clause is a constraint on the legal authority of the national government.  It means that Congress may not enact any statute that disables someone from holding office on religious grounds.  The letter of the clause has simply nothing to say to voters, who remain free to make their own judgments on whatever grounds they please, religious or otherwise.

The ban on religious tests certainly bars the national government from proscribing religious tests on those running for office, and the spirit of the ban would certainly indicate that in the public square, we should see each other as equal citizens.  But it does not follow that all religious speech and deliberation be banned as well.

It is odd that certain conservatives who answered Rev. Jeffress' words with pointing to the ban of religious tests have inadvertently agreed with the rulings of the Supreme Court in matters dealing with the Religion Clause of the Constitution.  Those rulings have gradually been working towards scraping the public square clean of religious symbols and any acknowledgment of religion whatsoever (except the new religion that has taken the place of traditional religions:  diversity).  As James Madison argued in Federalist 10, there are two ways to combat faction:  take away liberty or control the effects of faction itself.  The argument of the certain conservatives described above takes away the liberty at the sake of trying to solve the problem.  As Madison said, "It could never be more truly said than of the first remedy that it is worse than the disease. Liberty is to faction, what air is to fire, an aliment without which it instantly expires."

Franck ends by noting that far from banning any speech touching on religion, we should embrace and have open inquiry and discussion about these very important matters:

But precisely in connection with these common threads in the social fabric of conservative religious folks, we would be better off talking about the right use, and the misuse, of our religious freedom, rather than taking misleading shortcuts through the “no religious test” clause.  All of us in the coalition really do want to apply one kind of “religious test” or another, after all.  Even Abe Lincoln had his own version of such a test.  When he was running for Congress in 1846, his opponent, a local Illinois pastor, put it about that Lincoln was a Deist and no good Christian should vote for him.  Lincoln replied in a handbill he published in the district: “That I am not a member of any Christian Church, is true; but I have never denied the truth of the Scriptures; and I have never spoken with intentional disrespect of religion in general, or of any denomination of Christians in particular.” 

Lincoln shows us that there still exists a standard by which we should test or judge all things, and that this standard is really nothing more than the use of our reason with which we all endowed.  Denying reason and the standards by which to judge things right or wrong, good or bad, does much damage to both religious and civil liberty.

Thomas at 20

This October marks the twentieth anniversary of Justice Clarence Thomas's service on the Supreme Court.  Justice Thomas is no doubt the most principled jurist on the Court, because he consistently follows not only the text of the Constitution but it's principles as well.  Ken Masugi, who taught Thomas about the natural law and natural rights principles of the American Founding while Thomas was Chairman of the Equal Employment Opportunity Commission, recently wrote a very good essay on Thomas.  One of the highlights:

Thomas calls for legislators to be more aware of the limits on their actions, especially those that undermine individual liberties, including the liberty of campaign contributors to give anonymously and of property owners to be free of bureaucratic inconvenience. Perhaps the greatest act of liberation Thomas has performed is that of pulling off the blinders of conservatives and lawyers when it comes to accepting the conventional, without questioning it in light of the founding principles. When he performs this exercise, he liberates them from the dubious premises of previous generations of interpretation. In this, Thomas is, as few men ever truly are, a free man who affirms free government, that is, self-government. It is Thomas, more than any other justice since the great Chief Justice John Marshall, who has enabled citizens to see what a Constitution involves.

Also, in case you may be interested, here is an undergraduate thesis on Justice Thomas that explores his understanding of the relationship between the Constitution and the Declaration of Independence and how that understanding serves as the antidote to the legal positivism that ails both the Right and Left.

I hope that Thomas serves on the court for another twenty years.  God bless him.

Obama and Wall Street

A quick update to the recent posts on Occupy Wall Street:  the Daily Caller again reminds everyone about this interesting fact:

Despite his rhetorical attacks on Wall Street, a study by the Sunlight Foundation’s Influence Project shows that President Barack Obama has received more money from Wall Street than any other politician over the past 20 years, including former President George W. Bush.

In 2008, Wall Street’s largesse accounted for 20 percent of Obama’s total take, according to Reuters.

When asked by The Daily Caller to comment about President Obama’s credibility when it comes to criticizing Wall Street, the White House declined to reply.

 And they also note this aside on Bank of America:

“Banks can make money,” Obama said last week, responding to questions during an interview with ABC News about Bank of America’s decision to levy a $5 monthly fee on debit card users. “They can succeed, the old-fashioned way, by earning it.”

In fact, the Sunlight Foundation, a nonpartisan watchdog group that tracks lobbyist spending and influence in both parties, found that President Obama has received more money from Bank of America than any other candidate dating back to 1991.

There is nothing wrong, of course, with Obama receiving money from Wall Street or Bank of America.  The problem lies when you have a president playing up class warfare at the expense of solving real problems. When will the Occupy the White House demonstrations start?

Prohibition was a Progressive Cause

Ken Burns, the director of many famous documentaries in the past three plus decades (his The Civil War famously drew the ire of Harry Jaffa in 1990), just recently had his three-part Prohibition run on PBS.  While I did not get to to see most of it, the few parts that I did see were good.  I think if I would have heard Burns' recent explanation on the similarities between the Tea Party and Prohibition advocates before I saw the little I did see, it might have colored my viewing a little differently.  Here is Burns on Adam Carolla's podcast:

The real connection about Prohibition, to me the thing that there’s nothing new under the sun, is that this is the story about right-wing, single issue campaigns that metastasize. This is the story about the demonization of immigrants. This is the story about state and local governments complaining about unfunded mandates. This is the story about smear campaigns against Democrats… It’s like a Tea Party thing.

 But, as Christian Schnieder points out at National Review Online, the main advocates of national prohibition were Progressives.  Here is Christian giving some historical background:

Of course, it’s exactly nothing like a Tea Party thing. Following the turn of the century, it was Progressives that pushed for Prohibition, believing they were looking out for the working people of America. The Left also believed banning liquor would help the plight of immigrants — without actually checking with those very immigrants, many of whom enjoyed drinking heavily. Prohibition was also supported by the Klu Klux Klan, who backed former secretary of the treasury William Gibbs McAdoo for the 1924 Democratic presidential nomination against Prohibition opponent Al Smith, governor of New York.

It seems typical to link the enactment of prohibition to a bunch of over-zealous Christians who just want to force their wacky views on everyone else.  But that's not the whole story. 

Prohibition was a progressive cause after the turn of the century.  It is important to delve a little into the political theory behind Progressivism so that a larger connection can be seen.  A dominant strain in Progressivism features the growth of the state and bureaucracy at the loss of the consent of the governed.  The general will replaces enlightened consent as the engine of our politics.  It was the job of politicians to take that will and implement it in light of changing tides of History.  What seems like more democracy is actually just the reverse; that's why the Founders did not establish a democracy but a republic.  Cooler heads did prevail and the 21st Amendment to the Constitution repealed Prohibition in 1933.

The Irony of Occupy Wall Street

I think this picture explains it all:

A Funny Thing Happened on the Way to Wall Street

This past weekend, something called "Occupy Wall Street" took over the streets of New York City.  This "uprising" actually began around late September in Zucotti Park.  This past weekend, throngs of people numbering in the thousands showed up and shut down the Brooklyn Bridge, some shouting their grievances at the evil corporatists and others who obviously thought the Grateful Dead were having a reunion concert nearby.  Similar protests have quickly formed in L.A., Washington D.C., and Boston.  Van Jones, the former green czar who was booted from the Obama administration for, among other things, dabbling in the 9/11 trutherism, was instrumental in growing this movement as well (that should tell you everything you need to know).

Here is the listing of some of the grievances that I am sure would have even kept George III up at night:

• They have perpetuated inequality and discrimination in the workplace based on age, the color of one's skin, sex, gender identity and sexual orientation.
• They have poisoned the food supply through negligence, and undermined the farming system through monopolization.
• They have profited off of the torture, confinement, and cruel treatment of countless nonhuman animals, and actively hide these practices.
• They have spent millions of dollars on legal teams that look for ways to get them out of contracts in regards to health insurance.
• They have purposely covered up oil spills, accidents, faulty bookkeeping, and inactive ingredients in pursuit of profit.
• They purposefully keep people misinformed and fearful through their control of the media.
• They have accepted private contracts to murder prisoners even when presented with serious doubts about their guilt.
• They continue to create weapons of mass destruction in order to receive government contracts.

At the end of the list, there is an asterisk that notes that the above charges are not inclusive.

But I hate to point out the obvious to these protestors, at least to the ones who know why they are there in the first place:  even President Obama received millions from the same evil Wall Street thugs they are now protesting against.  I wonder when the Occupy the White House movement will start?  And of course many liberals have hastily declared that this movement is real, authentic, and reasonable.  Even President Obama stated that Occupy Wall Street shows Americans' frustrations on the economy.  Hmmm.  I wonder why the Tea Party movement didn't equally show the frustrations of American people?  No, no, no, I forgot:  that movement is AstroTurf and is full of racists, bigots, and two worst charges of them all in the current day:  old and white.

John Hinderaker at Powerline posted the picture below today.  It's actually pretty clever but still indicative of the type of crowd that clogged the streets of New York City over the weekend.

Justice Stevens: Meet Washington and Jefferson

Retired Justice John Paul Stevens, perhaps, next to William Brennan, the worst justice in the past forty years, just released his new book titled Five Chiefs.  The book is part memoir and part history.  Stevens chronicles the first 12 justices who served on the Supreme Court and the five justice on the court that he personally knew the best during his thirty-five year service.

In an interview with Nina Totenberg on the release of the book, Stevens pushes back at the idea that the politics of Justice Thomas's wife should make Justice Thomas recuse himself in future cases on Obamacare.  Here is Stevens:

While he was on the bench, Stevens was always meticulous about recusing himself from any case in which he might even conceivably be seen to have a conflict. So what does he think about the wife of Justice Clarence Thomas publicly campaigning against the Obama health care law, and the calls from liberal groups for Thomas to recuse himself from challenges to the law?

Stevens says he is sure Mrs. Thomas is "acting in good faith, doing what she thinks is in the public interest." Nor does he think her actions have the "slightest impact" on how Justice Thomas votes. But, he adds, "one might prefer to have her less active."

Justice Stevens, however, veers on to more familiar ground in his discussion of the validity of original intent jurisprudence:

Taking on the much debated idea of original intent, the retired justice disputes the notion that anyone today can, with total clarity, know exactly what the framers intended. Nor, he argues, should that intent be the be-all and end-all of the legal analysis. He points to the First Amendment freedom of religion guarantee as an example, noting that the leaders of the country in 1789 were all Christian, and their concern was to ensure that no particular brand of Christianity got government preference.

The First Amendment's religion clause "wasn't intended to protect the Muslims or the Jewish faith or the atheists," he says. "But once we started to analyze the clause, in case after case, we developed the rules that make it perfectly clear that the principle that was adopted was much broader than the specific purpose of the draftsmen ... at the time. It's a principle that goes beyond the original intent." And that principle, he says, is that there can be no government preference for any religion, Christian or not, and no penalty for any religion or for nonbelievers either.

Unbeknownst to Stevens, the Founders' principle of religious liberty was not extended simply to denominations of Christianity.  It was open to all people of all faiths, because it was grounded upon the right of conscience.  The Founders' conception of religious liberty was built upon the natural rights philosophy that undergirds our politics.  Since all men are equal in certain natural rights by nature, one's religious beliefs do not affect one's natural rights.  Only in this sense is there a separation between church and state.  Over at Powerline, Steven Hayward takes Stevens to task for not knowing the political philosophy of the Founders:

It is hard to be more totally wrong in such a short space, both on history and on the philosophical ground of constitutional originalism.  The founders were well aware that the principle of religious liberty applied to all faiths. Apparently Stevens never read, for example, Thomas Jefferson’s Virginia Statute of Religious Liberty, which lays out the general ground for the universality of the right of conscience in worship.  But an even better example of how the framers understood their principles and the philosophical ground on which they rested is President Washington’s letter to the Jewish synagogue in Newport, Rhode Island, which succinctly explains the ground of why religious liberty extended to Jews as well as Christians. 

This is what happens when justices of the Supreme Court are alienated from the principles of the Founding.

July 14, 1941

Over at No Left Turns, the blog for the Ashbrook Center at Ashland University, Peter Schramm, Executive Director of the center, reminices on the life of Harry Jaffa, who will turn 93 on October 7th.  Here is Dr. Schramm on Jaffa:

The Old Man has said that July 14, 1941, was an important day in his life for two reasons. First he "reported for salaried employment for the first time in my life." The second reason is this: "But on that morning at breakfast in the boarding house in which I had become an inmate the night before, I found myself looking into the eyes of the most beautiful and wonderful girl I had ever seen. I made a date for that evening and never looked back." He got the job in Washington because he passed the Civil Service Exam in Public Administration.  He passed that exam because he took public administration classes which he loathed and found infinitely boring. He only stayed with the courses at the recommendation of his professor, Frank Coker. Jaffa writes: "This advice turned out not only to be good advice, but the foundation of every good thing that has happened to me in all the years that have followed. I remain grateful to Coker, but even more alert to the mystery of the ways of Providence, which often proceeds by the most inauspicious indirection to accomplish its ends."

Jaffa's gratefulness to Providence and Professor Coker stems from the fact that he encountered Leo Strauss while he was taking classes to try to pass the Civil Service Exam.  At that time, Strauss taught at the New School for Social Research in New York.  That first encounter lead to many others, and Jaffa's life henceforth would never be the same.

The Constitutionality of the Killing of Al-Awlaki

As you may have heard, Anwar al-Awlaki was killed by CIA-operated Predator drones in Northern Yemen on Friday.  Al-Awlaki, an American-born citizen who became a top leader of Al-Qaeda, was put on a capture or kill list by President Obama in April of 2010.  He became targeted after a growing number of terrorists cited his sermons as an inspiration for their acts.  Major Nidal Malik Hassan, the perpetrator of the Fort Hood Massacre, had a number of email exchanges with Awlaki.  He was also connected to the underwear bomber as well as numerous other successful and unsuccessful terrorist attacks. 

In the wake of Awlaki's killing, a controversy that has been brewing for some time exploded across internet blogs regarding the constitutionality of this and like killings by the U.S. abroad.  Many liberals and libertarians, most notably lead by Reps. Ron Paul and Dennis Kucinich, have condemned the "assassination" of Awlaki.  On Fox News Paul stated the following:

No one likes these kind of people, but I also like the rule of law and I like our Constitution, that you don't just target people, assassinate them, someone who has not been charged and you have no proof of anything.  So if we want to protect American citizens from that type of justice, we have to be more cautious."

 On the other side of the debate, many conservatives have agreed that the killing of Awlaki was necessary and is within the purview of the executive power under Article II of the Constitution.  John Yoo states this case:

An American citizen who makes the mistake of joining the enemy is not legally inoculated from military attack.  What is important is not whether someone is an alien or a citizen, but whether they are a member of an enemy conducting hostilities against the United States.  Here are three historical pieces of authority:

1.The Civil War.  Every confederate soldier was a U.S. citizen, especially under Lincoln's theory that secession was constitutionally impossible.  If one could not kill American citizens who had joined the enemy without some kind of judicial hearing or due process, the Civil War would have been unwinnable.

2. Ex Parte Quirin (1942), where the Supreme Court upheld the detention, trial, and execution of German saboteurs, one of whom was an American citizen.  The Supreme Court said:  “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences.” One of those consequences, of course, is being subject to attack.  In World War II, many Americans returned to Germany, Italy, or Japan to fight on the side of the Axis.  The courts never required some kind of due process for them.

3. Hamdi v. Rumsfeld (2004), where the Supreme Court upheld the military detention of a Saudi Arabian caught fighting during the Afghanistan invasion of 2001.  The Saudi had happened to be born in Louisiana, but left as an infant.  “A citizen, no less than an alien, can be part of or supporting forces hostile to the United States or coalition partners and engaged in an armed conflict against the United States.”

Andrew McCarthy at National Review Online also makes a lengthy case in support of the killing here and here.

I would definitely count myself on the side of Yoo and McCarthy.  Just looking at it from a standpoint of the social contract theory that underlies the Constitution, it seems to be plainly constitutional.  If government is formed by social contract, as most of the Founders agreed that ours was, that contract extends only to those who consent to join in that contract.  Those who do not join that contract are not entitled to the benefits and security that come along.  Those who renounce their citizenship by openly aiding and abetting enemies of those who formed that contract, are clearly no longer granted the security and safety guaranteed by that contract; they are the ones who willfully negated that contract by their act of war.  And as was said before in an earlier post, there has always been a distinction between lawful and unlawful enemy combatants.

As understood by the Founders, the executive has plenary power in foreign policy.  Numerous presidents have committed troops on the ground and deterred attacks without express authorization by Congress first (although many times Congress has later authorized these types of actions).  It has to be remembered that Congress has the power only to declare war, not make war.  They do, however, have the power to defund military operations, and the president can be impeached should he commit a serious enough offense.  Congress has ample oversight and power should they deem the action of the executive to be unconstitutional in a time of war.

Though the Supreme Court ruled in Boumediene v. Bush that aliens detained as enemy combatants have a constitutional habeus corpus right to challenge their detention, what the Supreme Court says about the Constitution should never be confused with the Constitution itself.  The president has both the right and the duty to argue that while he respects the Court's decision in that particular case, it should not be applied as a principle to all other like cases.  Every branch has the duty of interpreting the Constitution as they understand it.  This was the position of Andrew Jackson, Abraham Lincoln, and the Founders.  It was only in 1958 that the Supreme Court declared themselves the final arbiter of the Constitution; in McCullough v. Maryland, the case often cited as the basis for judicial supremacy, the Court under John Marshall described only the necessary logic of the judicial power itself.   

This all proves, I think, that the killing was both just and constitutional.  An interesting aside is that during the Bush Administration, many future Obama Administration officials and Obama himself declared in numerous speeches the supposed evils of detaining enemy combatants in Guantanamo Bay.  If Bush was shredding the Constitution by detaining enemy combatants without due process, then certainly Obama is lighting the Constitution on fire by targeting a U.S. citizen on foreign soil.  This is what happens when the prudence of the executive office forces itself on those at the helm.