Archive for the ‘Politics’ Category

What Sort of Despotism Democracies Have to Fear

Sunday, September 9th, 2007

“Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?

Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things;it has predisposed men to endure them and often to look on them as benefits.” — Alexis De Tocqueville, Democracy in America, Chapter 6, What Sort of Despotism Democracies Have to Fear.

It would be convenient if tyrants would announce their presence with snarly demeanors, black hats, or curly dark mustaches. Unfortunately, tyranny insinuates itself in democracies sweetly wrapped in kindness and genuine good intentions. In order to institute plans for the good of all, certain actions must be circumscribed and other duties compelled for the good of all. De Tocqueville recognized this inherent weakness in democracies. It is just as easy to find oneself ruled by a single tyrant or the tyranny of the majority. Our Founding Fathers hoped that in large democracies it might be less likely that a permanent majority could maintain itself and that competing“factions” would check each other.

One of the most recent examples of this danger of soft despotism came when Democratic presidential candidate John Edwards’s explained his proposed national medical plan. We can thank Edwards for carrying through the logic of his advocacy for socialized medicine. In an effort to keep the cost of his plan lower, Edwards is going to demand preventive care. His program “requires hat everybody be covered. It requires that everybody get preventive care .. .You have to go in and be checked and make sure that you are OK.” Besides requiring that everyone get regular check ups, all woman would require regular mammograms.”

Now such actions may appropriate for reasonable people to decide to do, requiring them under the threat of penalty is intrusive. If one carries out Edwards’s logic to its ultimate conclusion, government could leverage medical care to controls over a larger variety of heretofore personal activities. Controlling diet, exercise routines, risky behavior such as certain sports, some sort of sexual behavior, or decisions when to have children, could all fall into activities liable to regulation by a government desperately trying to hold down costs. Government programs are notoriously inefficient and the more government controls medical care the more greater the need to institute cost controls.

The internal logic of personal liberty is that individuals are free to do whatever they want as long as their actions are private, not affecting others. As soon as we socialize the costs of medicine, there are no private actions. Virtually any activity can affect health costs and are thus legitimate avenues for regulations. As the scope of private action shrinks so does freedom.

What is worse, as De Tocqueville recognized, as individuals cede personal decisions to other authorities, they fall out of the habits of individual autonomy. They begin to look for guidance and direction, rather than chafe against supervision. They transform from robust individuals to a herd of sheep deferential to their shepherd government.

In Defense of a Little Hypocrisy

Monday, September 3rd, 2007

Now that Senator Larry Craig of Idaho has resigned as a consequence of the the charge of soliciting gay sex in a public restroom at the Minneapolis Airport, perhaps we have reason to consider the more general question of what constitutes hypocrisy. Craig had been an vocal advocate of “family values,” so his legal and moral predicament obviously lends itself to the charge of hypocrisy.

Hypocrisy rests on pretense; the pretense of advocating one thing and in one’s private affairs acting a different way. Unfortunately, such a strong and inflexible standard makes hypocrites of us all. All of us profess standards we aspire to but that natural human imperfections make impossible to always achieve. If we are all hypocrites, then the term looses meaning. Hypocrisy is consequently a continuum ranging from conventional human frailty to presumptuous pretense.

In the area of public policy, what is often characterized as hypocrisy is an unfair charge. Someone can genuinely advocate one public policy, while arranging one’s own private affairs differently in the context of given law. For example, one could earnestly believe that the tax deductibility of homoe mortgages should be eliminated, while at the same time taking advantage of the existing provisions of the law in one’s own finances and not be a hypocrite. It is possible to be in favor busing of students to achieve racial ntegration and send one’s own kids to private schools and not be a hypocrite. It is possible to be gay, and oppose the agenda of the most vocal gay lobby and not be a hypocrite.

As long as people advocate their positions out of humility they are generally safe from charges of hypocrisy. True hypocrisy enters with when finger-wagging pretension. If one vocally chastises others for any behavior and then gets caught red-handed violating their own strictures, the charge of hypocrisy is appropriate. This why those preachers who self-righteously extort their flocks to good moral behavior and then repeatedly engage in immoral behavior are so easily labeled as hypocrites. That is why those environmentalists who direct people to live their lives frugally yet wallow in conspicuous consumption themselves remain striking hypocrites.

Hypocrisy is a real vice and there are two ways to avoid it: (1) Combine high aspirations for behavior with a humble recognition of personal limitations, or (2) Have to no high moral aspirations one can fail to meet. The former is preferred.

Choosing Defeat

Sunday, August 26th, 2007

A common refrain is that the Iraq War is a “war of choice.” Or course, all wars are wars of choice. The early Americans could have decided to remain part of England with all the restrictions on liberty that would have meant and war could have been avoided. The Union could have accepted the secession of the Confederate states and avoided war. The South could have accepted gradually increasing restrictions on slavery and avoided war. Despite any provocation, one can always choose acquiescence, loss of liberty, or even loss of life over war. When some say that Iraq is a war of choice they mean to say that the negative consequence of not going to war are less than the negative consequences of war.

People can certainly make that judgment. It is clear that had the US known more precisely the level of weapon of mass destruction development in Iraq, the calculus of the decision would have been different.

Defeat can be an inevitable consequence of war, but it also become a considered and deliberate choice. Indeed, some Democrats have cornered themselves into a position that good news in Iraq becomes a political liability. According to the Washington Post, Democratic Representative James Clyburn, the House Minority Whip, warned that “We, by and large, would be wise to wait on the [Petraeus ] report [on the progress of the surge.” He, nonetheless, conceded that a positive report on Iraq, “a real big problem for us.”

Now, we can be sure that in his heart-of-hearts Clyburn wants the best for the US and US troops. However, if one’s political circumstances depend on bad news there is a natural human tendency to gravitate to such news. That is why the recent improvement in security in Iraq has not occasioned relief by Democrats but rather increased their concern about the lack of political progress in Iraq.

Sometimes, choosing defeat can come by accident as in the recent remarks by Republican Senator John Warner. He was trying to offer the argument that perhaps the US should use troop levels to put pressure of Iraqi officials to more aggressively to pursue political reconciliation. Warner’s mistake was to suggest that 5,000 troops be withdrawn to indicate that the American military commitment is not open-ended.

The idea was ill-conceived in many respects. The troop withdrawal is too little to have the desired effect. If it were large enough to signal a significant withdrawal, the withdrawal would undermine the surge with seems to been gaining traction on the security front. Certainly, given the political situation in the US, Iraqis already understand that they cannot count on support from the US past January 2009.

Moreover, Warner should have understood that his suggestion would be misinterpreted and trumpeting in headlines an influential Senator calling for troop withdrawal. Warner’s remarks would be viewed as Warner defecting from the Bush camp.

Warner’s too idle a suggestion masked the fact that Warner has confirmed that he would vote against any imposed timetable for withdrawal. You see the Democrats don’t want the US in Iraq and want a full-fledged withdrawal to begin in Bush Administration so that Democrats will not be blamed for choosing defeat. Warner’s mistake played into this plan.

Some Democrats speak of measured withdrawal, but once significant withdrawals begin, Democrats do not have the rhetorical ammunition to slow the momentum and prevent the rapid abandonment of Iraq to Iran and Al Qaeda.

In Vietnam, the security situation was manageable in 1973 and an agreement to cease hostilities in the Paris Peace Accords was reached. Of course, the North Vietnamese ignored the agreement. By 1975, the Democratically controlled Congress refused to provide military aid to South Vietnam and North Vietnam (amply armed by their sponsors) rolled their tanks into Hanoi in 1975. The Democrats had so demonized the war, that no will remained to support an ally that had been attacked in violation of the Paris Peace Accords.

Jose Padilla’s Conviction

Sunday, August 19th, 2007

One could almost feel the collective, mournful groan of the Left when Jose Padilla was convicted by a jury of “of conspiracy to murder, kidnap and maim individuals in a foreign country, conspiracy to provide material support to terrorists, and providing material support to terrorists.” Padilla’s complex legal case had come to symbolize for the Left what they view as lawlessness by the Bush Administration in its pursuit of terrorists. Given this symbolism, there is an extreme element of the Left that has demonstrated, as in the case of Alger Hiss, that it is possible for some to cling to protestations of innocence in the face of persuasive evidence to the contrary.

Padilla’s case is legally interesting because Padilla is an American citizen who was arrested on May 8, 2002 at O’Hare Airport, a port of entry, not quite in the United States. Should Padilla be treated conventionally as a criminal or as an combatant at war with the US? Was Padilla engaged in war against the US? Was he captured outside or inside the United States? On June 9, 2002, President Bush declared Padilla an “illegal enemy combatant” and the Administration held him in military custody on this basis. It is reasonable to ask what rights does a person so designated have to challenge the designation.

Rather than test the authority of the President in this case at the Supreme Court, the Administration formerly charged Padilla in civilian court on November 22, 2005 with the crimes of which he was ultimately convicted. Padilla’s attorneys fruitlessly tried to argue that Padilla’s incarceration had so damaged Padilla mentally that he was not fit to stand trial. The judge ruled otherwise perhaps convinced of the disingeniousness of the psychiatrists hired by Padilla’s defense. Dr. Angela Hegart testified that Padilla was unfit to stand trial because he suffered from post-traumatic stress disorder. She was forced to concede during cross examination that Padilla had scored a zero on Hegarty’s post-traumatic stress disorder test and that this test result was omitted from her report to the court.

Padilla’s guilt does not demonstrate the legitimacy of the illegal-combatant-doctrine that he was originally held under. That question is orthogonal to the question of Padilla’s specific guilt or innocence. The Left should have been satisfied when Padilla was charged in a civilian court. However, it would have been rhetorically convenient for some on the Left if Padilla had been acquitted. It would have been evidence that the Bush Administration had not exercised its disputed authority in good faith. In this case, the Administration judgment about Padilla has been vindicated if not the legal doctrine under which he was originally held. It was a tactical mistake for those opposed to doctrine that the commander-in-chief can designate a person as an illegal combatant to tie the case so closely to the deeply flawed Padilla.

Pursuit of the Great White Whale

Tuesday, August 14th, 2007

“Aye, aye! and I’ll chase him round Good Hope, and round the Horn, and round the Norway Maelstrom, and round Perdition’s flames before I give him up. And this is what ye have shipped for, men! To chase that white whale on both sides of land, and over all sides of Earth, till he spouts black blood and rolls fin out. What say ye, men, will ye splice hands on it, now? I think ye do look brave.” — Moby Dick by Herman Melville.

Comparing the long-lived pursuit of President Bush’s adviser Karl Rove by Democrats armed with subpoenas in place of harpoons to Ahab’s pursuit of the great white whale is an overused metaphor. But its overuse is a measure just how apt the metaphor has proven to be. What is often forgotten is the origin of this animus.

For Captain Ahab the obsession with the white whale began when the whale took his leg. For Democrats the source of the obsession was the ever so close 2000 presidential election. The economy was humming along and we are not (at least we believed we were not) at war. Prosperity and peace is a conventional formula for victory. All the politically modeling would have predicted a 4 o 5 percentage point win by Vice-President Al Gore over the Governor George Bush.

Surprisingly, Bush parlayed personal affability, a popular distaste for President Clinton’s personal behavior, and Gore’s awkwardness as a candidate into a victory. The victory was even more frustrating for Democrats because Gore won the popular vote but not the electoral vote. Frustrated and angry Democrats believed the election was stolen.

However, Democrats could not blame President George Bush for their loss, because their own rhetoric had painted him as a simpleton. To give Bush credit for the victory, would mean that they had been outwitted by Bush. It was far easier to grant credit for the victory to Karl Rove, Bush’s evil political genius.

Then contrary to conventional political wisdom in 2002, the President’s party actually gained seats in the House of Representatives. How could this be? It must be clever manipulation by Karl Rove of the public anxious about its security.

We can then add to this the frustration of the substantial defeat of Senator John Kerry by Bush in 2004. How could urbane and intelligent Kerry lose to Bush? It had to be that mandarin Karl Rove who conjured up the Swift Boat veterans and led the blogs in their revelation of forged documents behind a CBS report surrounding Bush’s service in the National Guard.

One might have thought that when the Democrats won the House and Senate in 2006, their awe of Karl Rove’s expertise as well as their anger might have abated. No. The victory gave them a subpoena power with which to pursue Rove. Perhaps they could catch Rove in a misstatement that could be harvested into a perjury indictment.

Alas, Karl Rove has announced his decision to resign and go to other pursuits. There is no real reason to pursue Rove any further save vengeance. Nonetheless, Democrats do not appear willing to let the matter drop. As an exercise in executive privilege, the President will not permit Rove to testify before Congress. Vermont Democratic Senator Patrick Leahy, Chairman of the Senate Judiciary Committee, still fumes at Rove:

“The stonewalling leaves me and the Senate Judiciary Committee with few options other than considering citations for contempt of Congress against those who have refused to provide relevant testimony and documents to the Congress.”

That is a prosaic way of saying, “…from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.”

CNN Europe Again

Sunday, August 5th, 2007

I know its true, but it never ceases to amaze me when I visit Europe just how unselfconsciously mean-spirited and anti-American the broadcast news is there. CNN Europe makes the CNN USA and MSNBC news channels look like Fox News.

In 2003, I spent a week in Toulouse France at the same time that Saddam Hussein’s sons, Qusay and Uday Hussein, were killed in a shootout with American troops. CNN Europe covered the success cynically, arguing that Iraqis were not likely to believe that the sons were indeed killed and no longer a threat unless some proof was provided. The very next day photographs of the corpses of the sons were made available. At this point, CNN Europe complained that the photographs were inappropriately proactive. Now, it is probably logically possible to hold the two positions expressed one day apart. However, it would have been heartening if they had at least acknowledged that the photographs had met the need for proof they had demanded just one day before.

I have just returned from a week and a half in Spain in Italy, with a renewed opportunity to experience CNN Europe. This time, CNN Europe was faced with the politically inconvenient fact that American troop casualties had fallen dramatically since May. This fact makes the fatalism about Iraq appear premature. To offset this good news, CNN Europe warned that the progress had come at the cost of accommodations with local Sunnis that might come back to haunt the US. The next day Sunni leaders walked out of the Iraqi National Assembly. CNN Europe then worried that without Sunni cooperation there was little hope of success in Iraq. It is hard to escape the conclusion that CNN Europe’s only consistent editorial policy is that what all news coming from Iraq must be portrayed in the most worst light possible. No wonder Europeans have such a negative view of Americans.

Free speech and a free press, even if so overtly biased represent important pillar in a free society. With respect to people who perpetrate incorrect opinions, Thomas Jefferson once noted that: “… let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” We can only hope that alternative media will be able to provide Europe with sufficient unfiltered information that reason has enough raw material with which to work.

Claiming Our Past

Sunday, July 15th, 2007

Memory is key to self-identify both for individuals and communities. Knowing and understanding our past places the present in context. In order to make reasonable extrapolations into the future, the present must be anchored to the past. Change our memories and understanding of the past and you change who we are now and who are likely to evolve into. This is reason why the teaching of history is so important and  why some recent events are so discouraging.

Perhaps the most consequential British citizen of the twentieth century was Winston Churchill. It was Churchill’s poetic articulation of English resolve that sustained the English during the Battle of Britain and led to victory in WWII against the Nazism and Fascism. Now we find that Churchill is to be dropped from England’s history syllabus in part to make room for practical life skills. It is not so much that Churchill is being dropped in favor of other more favored by contemporary standards. “Adolf Hitler, Mahatma Gandhi, Joseph Stalin and Martin Luther King” have also been dropped. It is that without a knowledge of the monumental struggles of the past, we an incapable of drawing experience and inspiration from these struggles. The lost of the past does not focus us on the future, but robs from the future and make us entirely a present-tense society. The British could only be bucked up with Churchill’s words, “we arise again and take our stand for freedom as in olden time” if there was an olden time to which the British could recall.

What is happening in Britain appears less malicious than foolish. Perhaps we cannot be so generous in our estimation of American efforts to create politically correct history text books. William Bennett reports that the National History standards emphasize Soviet space activities and the Challenger accident with nary a mention of the Moon landing. There is one textbook that devotes more space to Clinton’s reinventing government than Eisenhower’s interstate highway system

The Washington Post reports the difficulty in teaching literature from such classics as Mark Twain’s Huckleberry Finn or Harper Lee’s To Kill a Mockingbird because of the some of the language is racially offensive. Ironically, considered in the context of the times, both books represented radical notions of racial equality. Now these authors are not appreciated by those who do not have a sufficient historical perspective to appreciate the work.

There has been renewed interest in our Founding Fathers given some recent best selling books such ad David McCullough’s John Adams, Joseph Ellis’s His Excellency: George Washington and Ron Chernow’s Alexander Hamilton. Doris Kearns Goodwin managed to provide additional insight on Abraham Lincoln’s political skill in Team of Rivals. Certainly, William Bennett is doing his part publishing the two volume best selling history of the US, America: The Last Best Hope. However, these appeal primarily to adults and young people probably already interested and literate in history.

Perhaps we can work in our local communities to make sure that history is given its proper priority in the curriculum. However, it an arduous task likely to consume years of effort. This is a time for the entertainment industry to step into the breach and provide popular re-tellings of history. If the fictional Pirates of the Caribbean, Lord of the Rings, and Harry Potter can draw large young audiences, surely stories from the greatest political story every told can be made interesting.

Cutting Short Bad Court Decisions

Sunday, July 8th, 2007

This week, in a 2-1 decision, the 6th District Court ruled that the American Civil Liberties Union (ACLU) and fellow litigants did not have standing to sue the National Security Agency over the Terrorist Surveillance Program or (TSP). Under the terms of the program, President George Bush had authorized the use of warrantless wiretaps, when one end of the communications is in a foreign country. It is clear that NSA does not need a judge-issued warrant for eavesdropping on international conversations. It is also clear that if the wiretapping involves people entirely within this country, the government needs to seek a warrant. It is certainly less clear what the limits are on executive authority in this in between situation.

There had been some mixed limited opinion at the District Court level on this issue, but there was no definitive legal judgment on the matter at the Supreme Court level. This case potentially can provide an important opportunity to plumb new depths of Constitutional law on an issue that is likely to play an important role in the War on Terror for decades. Instead, District Court Judge Anna Diggs Taylor used it for polemical advantage and little legal reasoning. Taylor not only ruled that that the litigants had what many conceded was questionable standing to sue, but that the TSP violated the First Amendment (for its alleged chilling effect on communication) and the Fourth Amendment’s prohibition against unreasonable search. She then issued an immediate injunction banning the communications intercepts at issue.

One might have had a hint as to what the 6th District decision would decision ultimately be when they quickly issued a stay of the judge’s order. The case became more complex when it turned out, that Taylor served on the board of a nonprofit organization that made regular grants to the ACLU. Judge Taylor was probably not violating the law by not recusing herself from the case, but it would have improved judicial transparency and her credibility if she had addressed the issue directly.

The initial press reports on the decision focused on the number of pages in the decision as if pages are a unit of measure for clarity and wisdom. After further consideration, most have now concluded that Taylor’s decision was poorly reasoned. Even the Washington Post, that is sympathetic with the notion that the TSP exceeds Presidential authority, had to concede that the judge’s decision was “neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard hitting.”

The 6th District Court overruled Taylor in a minimalist decision. It concluded that since the litigants could not prove that any of their communications had been intercepted, they could not prove that TSP had done them any harm. The New York Times, in the third paragraph of their reporting of the 6th District Court’s decision, dutifully repeat the ACLU’s argument pointing out that the secrecy of the program it is own protection. Since, no one knows if they have been wiretapped no one could ever have standing to sue.

The Constitutional system does have a way to deal with these issues. It is through the political process and legislative representatives that these broad issues are dealt with. The 6th District Court of Appeals cited the US Supreme Court in United States v. Richardson:

“It can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process. Any other conclusion would mean that the Founding Fathers intended to set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts. The Constitution created a representative Government with the representatives directly responsible to their constituents at stated periods of two, four, and six years; that the Constitution does not afford a judicial remedy does not, of course, completely disable the citizen who is not satisfied with the `ground rules’ established by the Congress for reporting expenditures of the Executive Branch.”

Ultimately, it is the inability to remember this that condemned Jude Taylor to yield to the temptation of using the law for partisan political ends. With this 6th District Court decision, reason and judicial temperance have now prevailed.

Commuting Libby’s Sentence

Monday, July 2nd, 2007

The President has just commuted the jail sentence of “Scooter” Libby for his conviction of perjury and obstruction of justice in the case of the leak of Valerie Plame’s name. This decision is consistent with the recommendation made here a few weeks ago. See Unforunate Guilt

A Victory for the Right and the First Amendment

Sunday, July 1st, 2007

In 2004, the Wisconsin Right to Life (WRTL) organization wanted to run a television ad that criticized the fact that some Senators were using “filibuster delay tactics” to prevent federal judicial nominees from coming to an up-or-down vote. The ad concluded with the suggestion to “contact Senators Feingold and Kohl and tell them to oppose the filibuster.” This ad was to run during the 30 day period before a federal election. The Bipartisan Campaign Reform Act (BCRA) proscribed ads that refer to a candidate within this period.

Recognizing the potential problem, WRTL applied for injunctive relief claiming its First Amendment rights were being violated. The relief was denied, but ultimately the WRTL was able to present its case before the US Supreme Court.

This was not the first time that BCRA had been challenged. In McConnell v. FEC, decided when Justice Sandra Day O’Connor represented a swing vote on the Court, the Court allowed the prohibition against “electioneering” ads or their “functional equivalent.” The Court believed that the mention of a candidate’s name made any ad the functional equivalent of electioneering and not “expressed advocacy” of a position. Expressed advocacy is still permitted.

In WRTL v. FEC , the Court led by Chief Justice John Roberts, narrowed the McConnell decision. It found in favor of WRTL, arguing that the strict scrutiny required in First Amendment cases was not met by the “functional equivalence” test. Any doubt must be decided in favor of free speech rights. An ad could be considered to be engaged in electioneering “only if the ad is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate.”

Although the Court saw no reason offered by this particular case to re-examine McConnell in full, it suggested that it might do so sometime in the future. In Roberts’ concluding paragraph of the majority decision in WRTL v. FEC, he argued that the “Framers’ actual words put these cases in proper perspective…when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban — the issue we do have to decide — we give the benefit of the doubt to speech, not censorship. The First Amendment’s command that `Congress shall make no law … abridging the freedom of speech’ demands at least that.”

Presidents have legacies that last far beyond their term. President Ronald Reagan had many positive legacies, not the least of which was the end of the Cold War. However, on the nomination of Justice Sandra Day O’Connor, whose unfathomable jurisprudence often provided the decisive difference between a Court that protected the Constitution and one that thought law was malleable to the tastes of justices, Reagan erred. Through the appointment of Chief Justice John Roberts, who replaced Conservative Judge William Rehnquist and Justice Samuel Alito who assumed O’Conner’s seat, President George Bush has taken important steps to mitigating that error. It should be remembered that Bush had to be persuaded by the Conservative base that his first choice, Harriet Miers, did not have the appropriate judicial experience for the Court. She might have voted on most issues parallel to Alito, but her participation on the Court would have been far more of a crap shoot than Alito’s. We are now seeing the delicious fruits of a real movement toward to the Right.