Archive for June, 2003

Eroding the Fourteenth Amendment

Sunday, June 29th, 2003

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” — Fourteenth Amendment to the US Constitution.

In the notorious 1896 decision by the US Supreme Court, Plessy v. Ferguson, the Court ruled that state-mandated disparate treatment by race did not violate the equal protection clause of the Fourteenth Amendment. In a desperate and convoluted effort to accommodate the social views of the time, the Court ignored the plain meaning of the Fourteenth Amendment and decided that Louisiana could pass a law requiring: “equal but separate accommodations for the white, and colored, races” on railway cars. On the lonely side of the 8-1 decision, Justice Marshall Harlan dissented:

“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

In Brown v. Topeka Board of Education in 1954, the Court reversed itself, establishing the principle that government decisions could not be raced based. In his brief before the Supreme Court in Brown, the future Justice Thurgood Marshall powerfully argued that “Distinctions by race are so evil, so arbitrary and invidious that a state, bound to defend the equal protection of the laws must not invoke them in any public sphere.”

The Supreme Court recently ruled on the application of racial preferences for school admissions. In the case of Gratz v. Bollinger et al. regarding the University of Michigan’s undergraduate admissions process, the Court ruled that a rigid point system that gave significant and automatic advantage based on race was unconstitutional. In a second case having to do with University of Michigan Law School admissions, Grutter v. Bollinger et al., the Court permitted racial preferences if the admissions decisions were not rigidly linked to race. This second case allowed for the application of racial distinctions to achieve a critical mass of certain racial populations so long as race was considered in a holistic view of the entire individual. The logic of the two decisions seems to be at war with one another. How can one achieve the so-called advantage of maintaining a critical mass of minority students, without adjusting the weighting in admissions criteria, however applied, to yield a given fraction of minority students?

There is a reason that affirmative action activists have almost unanimously viewed the split decisions as a victory. Since the Court now permits racial preferences to achieve diversity, advocates are confident that they can always obscure and befuddle the details of the admissions process so that potential litigants will have difficulty proving that any rigid racial preferences applied.

Let us be clear, proponents of racial preferences will find surreptitious means to systemically apply their racial criteria in the admissions process. If the nod were given to a minority students in admissions in the rare instances where the qualifications of two candidates for admissions were indistinguishable, opponents of racial preferences would not be so offended by their application and proponents would not view such preferences as so crucial in achieving their preferred mean hue of the student population.

However, in making the ruling the Court has done grave injustice to the principle of strict scrutiny when applied to circumscription of individual constitutional rites. In modern jurisprudence, the Court has applied a “strict scrutiny” to any state-sponsored distinctions based on race. To pass constitutional muster, such racial distinctions must meet a high standard of “compelling state interest.” As Justice Clarence Thomas pointed out in his dissent to Grutter v. Bollinger et al., the Court had only permitted state-sponsored racial distinctions in two classes of situations.

The first is the case of national security. The Court ruled that the state interest in restricting Japanese-Americans during World War II was sufficiently compelling to be permitted notwithstanding the protections the Fourteenth Amendment. In retrospect, it is clear that the internment of Japanese-Americans was borne more out of racial prejudice than legitimate security issues, providing additional evidence of the sorry observation in our history that it is far too easy to misapply racial distinctions.

The second category where the Court has permitted the use of racial distinction is for direct and narrow remediation of racial discrimination by an institution that has discriminated in the past. No such claim was made in the University of Michigan cases.

Elevation of the vague notion of “diversity” (of skin color but certainly not of perspective) to a compelling state interest undermines the bulwarks of the Fourteenth Amendment and other constitutional protections so that they might more easily be washed over by an unconstrained flood of government action. The jurisprudence of the Court, if logically applied, might permit racial profiling or broader search powers to address the compelling state interest of law enforcement. Thomas asks, if the Court is willing to grant deference to a school to use race-based admissions to achieve diversity, would historically black colleges be permitted to use race-based admissions to maintain the homogeneity?

Ultimately, the case can be made that race-based preferences do more to harm their potential beneficiaries by stigmatizing true excellence and achievement. However, like Plessy v.Ferguson, the recent decision to allow violations of the Fourteenth Amendment in government-sponsored school admissions will ultimately come to be viewed as a sad aberration and pathetic pandering to the conventional wisdom of the politically influential. There also remains the growing practical problem of applying racial distinctions to a population diligently, happily, and rapidly blurring those artificial categories by marriage. One can only hope that, as suggested by Justice Sandra Day O’Connor, the case for race-based preferences ought to disappear in 25 years. Unfortunately, there are too many people with a vested interest in maintaining the status quo for such preferences to slowly whither.

In the opening of his dissent, Justice Thomas, who has suffered the stigma of being treated different because of his race by both the mean-spirited and those with noble aspirations reminded us the words of the abolitionist and former slave Frederick Douglass:

“What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! …[Y]our interference is doing him positive injury.”

Once again, Douglass has proven prophetic.

European Paradise and American Power

Sunday, June 22nd, 2003

Imagine a person armed with only knife alone in the woods with a dangerous bear, prone to attack, lurking somewhere nearby. This person’s wisest option would be to remain silent and hope for the best. Certainly, to go preemptively after the bear with only a knife entails an even greater risk. Imagine another person in a similar situation except armed with a high-powered rifle. It may prove to be less risky for this second individual to actually go after the bear to eliminate the threat. Waiting for a surprise attack may make the rifle less useful. Whatever decision either individual ultimately makes, it is clear that the level of personal power and armament affects the assessment of risk and strategy.

This metaphor is how Robert Kagan, of the Carnegie Endowment for International Peace, describes the central thesis of his short book Of Paradise and Power. The large and growing disparity between the United States and Europe in their ability to project military power drives the growing fracture between the American and European views of the world. What makes these differences more difficult is the fact that both views are also animated by a myth or story that persuades both Americans and Europeans that they are setting a moral example for the world.

The United States began over two hundred years ago as a consciously different state designed to avoid the tyranny and impoverishment of Europeans. American avoidance of European politics was rooted both in an abhorrence of power politics as conducted by the corrupt monarchies of Europe and the fact that America was so militarily impotent that its situation represented that of a lone person in a woods armed with only a knife. Nonetheless, the American political model has spread. Americans can justifiable claim that successful adoption of capitalistic constitutional democracies serves as a global model for freedom and affluence. In addition, over the past century, especially during World War I, World War II, and the Cold War, America saw its military power as necessary and decisive in the protection of freedom and democracy.

The recent European experience is quite different. Chastened by over a half a century of power politics and nationalism that resulted in the death of millions of Europeans, they have adopted an abiding belief that security can only be attained through multi-national agreements and negotiations. The way to deal with adversaries is to negotiate and negotiate, building larger agreements on the foundations of trust nurtured from previous smaller agreements. Europeans are justly proud of the application of this approach and the astonishing emergence of the European Union. Once implacable adversaries like France and Germany can now share a common currency. According to Kagan, the qualities that comprise the contemporary European strategic culture are an “emphasis on negotiation, diplomacy, on international law over the use of force, on seduction over coercion, on multilateralism over unilateralism.”

Europeans believe that they have mastered an important model for conflict resolution that might be applicable to other intractable conflicts like the one between the Israelis and Palestinian Arabs. This is why Europeans, from the American perspective, seem irrationally wedded to process and engagement. The European hope is that process and engagement substitute for military conflict and, in perhaps unforeseen ways, possibly decades in the future, will ultimately lead to some sort of reasonable resolution.

The situation is filled with ironies. In truth, Americans would also prefer a world governed by the rule of law between liberal democracies linked by the cordial bonds of free trade. However, because the United States is the dominant superpower, it has duties it believes requires the occasional application of force and doesn’t much like being overly criticized by those unwilling to make the economic and political commitment to a military large enough to deal with threats. “Americans, as good children of the Enlightenment … retain hope for the perfectibility of the World. But remain realists in the limited sense that they still believe in the necessity of power in a world that remains far from perfection.”

On the other side, the “paradise” of law, reason, agreements, and trade that exist in Europe was made possible during the Cold War because of the protection afforded by American power. Even after the Cold War, Europeans have embarrassingly realized that they needed American power to deal with the ethnic cleansing by Serbian dictator Slobodan Milosevic within the European continent. Europeans are hardly likely to project power around the world, when they cannot manage to do so even locally. Without US power, European negotiation would not have significantly abated the cruelty in the Balkans.

Moreover, it was nudging by the United States that persuaded England and France to acquiesce to German unification at the end of the Cold War, an event that contributed to the current success of the European Union.

The divergence of American and European perspectives is likely to grow larger. Given economic difficulties, Europe is not likely to significantly increase military spending. The US feels more threatened by international terrorism and will continue to increase military spending in real terms. Even more ominous for the Europeans, their populations are rapidly aging. According to Kagan, by the middle of this century the median age of a European with rise to 52.7 from 37.7 years, while immigration will keep the US’s median age in the mid 30’s, at 36.2 from its current 35.5 years. European economies will consequently be struggling under a much greater relative burden to care for their elderly. Also by mid century, disparate economic growth rates will result in an American economy twice as large as Europe’s. In the latter half of this century, the odds are Europe will unfortunately be economically, militarily and consequently politically far less relevant.

This is not a cause for smugness or joy, as tempting as the French sometimes make it to indulge in such emotions. The West including the US and Europe will face a much more populous and more powerful China later this century. If we are fortunate, economic liberalization will attenuate any Chinese threat, but this scenario is not a certainty. Kagan hopes that an understanding of the political, economic, and military dynamics that are driving America and Europe apart will serve to increase empathy on both sides. America may be getting large and powerful enough to “go it alone,” but it is not in its best interest to do so.

Kagan concludes that the United States should not be overly concerned with pulling Europeans into international decisions. “Rather than viewing the United States as a Gulliver tied down by Lilliputian threads, American leaders should realize that they are hardly constrained at all, that Europe is not really capable of constraining the United States.” This “generosity of spirit” would assuage European sentiment. Kagan, in essence, is arguing for international leadership through psychotherapy. Voluntarily engage Europeans so that they continue to feel good about themselves and will consequently be predisposed to think well of us.

Re-Living History

Sunday, June 15th, 2003

David McCullough has recently written the definitive popular biography of John Adams. Drawing upon Adams’s prolific collection of letters to his wife Abigail and his erstwhile political ally and adversary Thomas Jefferson, McCullough was able to recreate both the character and political genius of the thoughtful, honest and sometimes pompous and sanctimonious founding father. As McCullough explains it, his original intention was “doing a dual biography of Adams and Jefferson and their intertwining lives.” However, while McCullough had depth of both personal and political material with which to explore Adams, there was a wall hiding Jefferson the man. For example, Jefferson destroyed all the letters to and from his wife he could find. Moreover, listening to McCullough, one gets the impression that he simply likes spending time in the ethereal presence of Adams. Life is short and although it is impossible to study Adams without coming to an understanding of Jefferson as well, McCullough apparently would rather spend more of his time with Adams than Jefferson.

Invoking the same privilege as a reader, not an author, I beg forgiveness for not spending 576 pages with Hillary Clinton’s new book Living History. It is not that she is uninteresting. If I could gain an important insight into her political philosophy, perhaps I might be persuaded to live with her mind for a short period. I remain unpersuaded.

There are partisans who will parse the book and undoubtedly find passages of dubious credibility and Mrs. Clinton’s defenders who defend her veracity immune to the evidence. I fear the book will prove to be a long and tedious Rorschach inkblot test. The impression one has of Mrs. Clinton only be reinforced by the book. Mrs. Clinton’s detractors will find additional evidence to confirm their distaste, while her puppy-eyed followers will lap up her auto-hagiography. Book reviews will say more about the reviewer than about the New York Senator. I know myself well enough to not need to see my own reflection in Ms. Clinton’s ghost-written words.

Perhaps, Matt Lambash’s review had it right when he said that Living History is one long exercise in resume writing. Mrs. Clinton is using the book as a start to a long job interview with the American public to become president. There is a considerable history of political candidates writing books to kick off elections runs. Remember, Jimmy Carter’s book that asked “Why Not the Best?” Most people answered the question in the affirmative in 1980 by voting for Ronald Reagan.

Despite the history of pre-campaign books, do we really need to know about Mrs. Clinton’s appointment as co-captain of the school safety patrol? Anyone who would look back at that experience and conclude, “my new status provided me my first lesson in the strange ways some people respond to electoral politics” has a prism on the world that only allows the political component through. Perhaps a question that Americans will be forced to answer in a future Hillary Clinton presidential bid is whether they would like to be governed by someone who is still concerned enough about a school safety patrol election to write about it decades later. By way of contrast, Ronald Reagan eschewed school safety patrol politics and was a lifeguard who saved dozens of lives.

As much I or other Conservatives may wish to avert their gaze, Clinton’s star will glow for a long time, extinguished only when she is definitively defeated electorally. There was a time when some Democrats looked wistfully at Edward Kennedy as a president that could bring back the heady days of John Kennedy’s Camelot. Seeing weakness in President Jimmy Carter’s re-election bid, Edward Kennedy challenged Carter for the Democratic nomination. Democrats looked at Kennedy and balked. Since then, Kennedy has been confined to the Senate. Unencumbered by realistic presidential aspirations, he moved left to his natural and comfortable position in the political spectrum. Will this be Clinton’s fate? Perhaps Clinton will be defeated for re-election to the Senate by Rudy Giulliani. Perhaps she will be defeated in 2008 in a presidential bid. Perhaps she will be successful in a presidential run. However, only an electoral loss will stop this famous co-captain of the school safety patrol.

There you see evidence of my original proposition that Living History is merely a Rorschach test. I have not read Living History and I already have had my preconceptions about Mrs. Clinton definitively confirmed.

The BCRA Assault on the First Amendment

Sunday, June 8th, 2003

The Founding Fathers were always profound, but not always right. How could they be? They often disagreed with each other. The Federalist Papers were a series of newspaper articles by Alexander Hamilton, James Madison, and John Jay intended to persuade fellow citizens of the wisdom of adopting the proposed new constitution. One of the concerns was that the original document did not include a bill of rights. This deficiency was alleviated by the first ten amendments, the Bill of Rights, adopted shortly after the adoption of the Constitution.In his defense of the original document, Alexander Hamilton in Federalist 84 noted that some protections, like the writ of habeas corpus were already in the Constitution. However, Hamilton argued that constitutions as a rule were too general to contain a specific enumeration of rights. He feared that such an enumeration might “even be dangerous.” A failure to enumerate a particular right might suggest it did not exist. Fortunately, Hamilton’s position did not ultimately prevail or who knows what predations ever expanding governments might have visited upon us.

While some fret over additional powers to pursue terrorists that may be granted to the government under the Patriot Act, many seem to neglect a concerted government attempt to limit political speech. The Bi-partisan Campaign Reform Act (BCRA) represents just such an effort. It appears from this vantage point that this threat is greater than any posed by the Patriot Act. After all, if we can maintain free political speech, we at least have the opportunity to remedy other problems that may crop up from time to time.

Presently, the BCRA is working its way through the courts in the case of McConnell v. FEC. There is particular doubt as to the constitutionality of the Snowe-Jeffords Amendment to the BCRA. The provision prohibits companies, labor unions, and non-profit advocacy organizations from broadcasting messages that mention a political candidate within 60 days of a general election. The National Abortion Rights League is prohibited from running a television ad that says “Vote for candidate Smith because he supports abortion rights.” The National Rifle Association may not run an analogous ad in support of a candidate sympathetic to its views.

One of the criteria courts use to assess the constitutionality of a law is “overbreadth analysis.” Is the BCRA so broad that it might inevitably infringe on constitutionally protected speech? Would a provision that bars electioneering ads also prevent the expressions of ideas? Laying aside for the moment the critical issue of whether even ads that mention candidates made by organizations independent of the candidates or parties should enjoy First Amendment protection, the appeals court wanted to quantify the potential empirical effect of the BCRA. David Tell for the Weekly Standard has examined whether intellectually dishonest approaches were used to push forward the case for reform in making this empirical determination.

Political scientist Kenneth Goldstein of Arizona State University assembled a database from 1998 election year broadcast ads. Students were enlisted to watch and listen to broadcast ads and decide whether the ad was primarily electioneering or issue advocacy. This database was then analyzed by the Brennan Center for Justice of New York University “not simply to advance knowledge for its own sake, but to fuel a continuous multi-faceted campaign to propel campaign finance reform forward.” This certainly sounds like science recruited in the service of a political agenda. While it is possible for a passionate advocate to conduct a dispassionate inquiry, it requires a careful donning of the robes of scientific neutrality. Tell’s investigation of the Brennan Center’s use of the Goldstein database suggests that the Brennan Center not only neglected to wear those robes, but is streaking in only a pair of sneakers through the campaign finance reform debate.

Josuha Rosenkranz, President of the Brennan Center, has testified to the Senate that if the BCRA had been effect in 1998, analysis of the Goldstein database indicates that only 7 percent of issue ads would have been unfairly prohibited from broadcast. Other investigators have looked at the same data and found that likely 40 percent of issue advocacy ads would have been suppressed.

James Gibson, of Washington University, may have located Rosenkranz’s error. Gibson was able to replicate the 7 percent number only by making an incorrect calculation. As Tell explains it, “The numerator was the expected one: genuine issue oriented-ad broadcasts that the Snowe-Jeffords 60-day blackout would have unfairly swallowed up. But the denominator was an apples-and-oranges anomaly: all issue-ad broadcasts of the entire calendar year.” There are now even questions of whether the Goldstein database has been improperly altered. Time will likely prove if the broken dam of enthusiasm for campaign finance reform washed away the scientific integrity of the Brennan Center.

For our purposes here, let us assume for now that the Brennan Center was absolutely correct. Let us assume they made no errors unintentional or otherwise. Assume that only 7 percent of legitimate issue-oriented ads, political speech in its pristine form, would be suppressed under BCRA. Should we accept such a First Amendment restriction? By analogy, would we allow the government to engage in what is now considered “unreasonable” search and seizure if only 7 percent of those convicted were actually innocent? After all that would make it easier for the state to prosecute the guilty? Would we welcome a 7 percent conviction error rate for the cost savings of not having to provide counsel to the accused? I should think not. Freedoms and rights can be whittled down to nothing in increments of a few percent at a time.

The First Amendment is direct and terse. “Congress shall make no law … abridging the freedom of speech…” By contrast, the BCRA is complex and unwieldy. It takes many miles of creative intellectual thread to weave a shroud dense enough to shield the brilliance of the First Amendment. The BCRA represents a far graver to threat our freedoms than is commonly assumed.

William Bennett’s Hypocrisy

Sunday, June 1st, 2003

“Hypocrisy is the homage vice pays to virtue.” — Francois, duc de La Rochefoucauld. “For I delight in the law of God after the inward man. But I see another law in my members, warring against the law of my mind, and bringing me into captivity to the law of sin which is in my members.” — Romans 7:22-23.

To the chagrin of some and the delight of others, Joshua Green recently revealed in the Washington Monthly that the compiler of The Book of Virtues, William Bennett, is a high-stakes gambler who has lost millions in casinos over the years. Since Bennett has spent much of the last decade stressing the importance of living up to ethical and moral responsibilities, this now conspicuous indulgence reeks of hypocrisy. Though Bennett spared us the specific moral condemnation of legal gambling and thus avoided direct insincerity, there can be no doubt that Bennett’s excessive gambling constituted hypocrisy. The very first virtue listed in The Book of Virtues, is “self-discipline.” Clearly, the extent of Bennett’s gambling fell far outside even generous boundaries of moderation. Moreover, Bennett is a director of the non-profit advocacy organization, Empower America. Empower America has argued against the extension of legal gambling.

However, some of Bennett’s critics, who have derived guilty pleasure at Bennett’s predicament, have revealed an obvious hypocrisy on their own part. Those who opposed Bennett in the past have argued that the private lives of public figures are not legitimate areas of inquiry lest a private problem spills into the public. However, we were not made aware of Bennett’s gambling problems because of illegal activity, a lawsuit, or a bankruptcy. They did not spill unbidden into the public. Bennett was outed by gleeful and zealous investigative reporting. The investigation of Bennett is reminiscent of the actions of those who believed that the best way to prevent Judge Robert Bork’s view of privacy rights from the Supreme Court was to acquire a list of Bork’s private video rentals hoping to find embarrassing titles.

Liberal columnist and television commentator Michael Kinsley argues that private issues become fair game when they reveal hypocrisy. Apparently, knowledge of the disconnect between private and public persona justifies private intrusion. It is unlikely that Kinsley would have subscribed to his own argument if someone had suggested that the contradiction between President Clinton’s private exploitation of women and his supposed support for the Liberal vision of women’s issues justified exposure of Clinton’s personal activities. By logical extension, Kinsley’s use of inconsistency dissolves the private in the solvent of human imperfection. Is it not true that we all publicly affirm ideals we aspire to but can never in reality completely achieve?

It is inevitable that those that demand the most from us are and ought to be judged by higher standards. Nonetheless, we must not confuse the message with the messenger. Intemperance by Bennett is not a refutation of temperance. The easiest way to steer clear of the flaw of hypocrisy is to affirm no values or standards against which one can be harshly judged. The more noble the aspirations, the more difficult it is to avoid hypocrisy.

One important measure of character and integrity is one’s response when confronted with a personal problem. Does one blame others for the fault or assume personal responsibility? Does one engage in denial or prevarication? Bennett has dealt with the charge of excessive gambling with a twinge of denial, not quite admitting to having a problem. Bennett at first excused his gambling by saying that he had not lost the “milk money.” However, having avoided bankruptcy is more a measure of the depth of Bennett’s resources then the shallowness of his problem. After greater consideration, Bennett has conceded that he has “done too much gambling” and promised that his “gambling days are over.” We hope for the sake of his family that he can keep his promise

Compare Bennett’s reactions to that of Robert F. Kennedy Jr.’s. Kennedy rants against the use of sports utility vehicles and high gas consumption by Americans, but considers inquiries as to what he drives and his use of private planes an invasion of privacy. While we ought not expect perfection from those in public, they must recognize that their persuasiveness, their moral authority, is proportional to the perception of their adherence to the values they profess.