The Constitution is still the supreme law

"We must never forget it is a Constitution we are expounding"- Chief Justice John Marshall Last week I discussed the controversy over the nomination of Sonia Sotomayor as Associate Justice of the United States Supreme Court, focusing on the standard for evaluating nominees. This week I will examine our Constitution, the basis for that standard.

Ours is a limited constitution, one that delegates powers to a federal government and denies certain powers to state governments which they had exercised to the detriment of our prosperity. It is necessary to recall these circumstances which originally gave rise to the Constitution in order to appreciate its authority and legitimacy today.

The Constitution did not come into being in a vacuum. What we now call the founding generation could not be sure that their nation would survive. Partly because of a suspicion of distant centralized authority and partly because of an attachment to their states, many Americans were far from assenting to a national government.

The Continental Congress (1774-81) and the Articles of Confederation (1781-89) were based on the good faith of the colonies until Independence (1776), and then the states which formed in that fragile union. Nothing of consequence could be accomplished without the approval of nine of the 13 states, and no independent and powerful national legislative, executive or judicial branches existed.

The major domestic threat to our nation was faction. The comparatively small size of the states which rendered them responsive to the wishes of their constituents also made them vulnerable to domination by majority factions determined to assert their rights but loathe to accept their responsibilities.

In the midst of a depression caused by the end of wartime production and the lack of access to continental and foreign markets, many Americans were broke and in debt. The war had been financed by an almost worthless Continental currency, made worse by the states' issuance of paper money as well. As debtors and their allies soon outnumbered their creditors, state after state passed laws which, in one way or another, repudiated debts.

Such legislative acts constituted more than an attack on the property rights of one class of people by another, as wrong as that was. They also sent a signal to nations from whom we borrowed money to finance the War that those debts were susceptible to repudiation too. After all, the same factions that controlled state governments dominated the weak Confederation Congress.

Reverence for the Constitution and the laws was not necessarily in the hearts of many of our ancestors at their moment of great crisis. How to counter this? As vital to the defense of our rights as a strong legislative and executive branch are, the courts have more immediate impact than either on the lives of our people. It is there that contracts are upheld and private property protected.

Thus, the Constitution, in Article III, provides for a supreme court, and "inferior courts" established by Congress, the judges of which hold their offices "during good behavior." When combined with Article VI, which declares the Constitution, federal laws and treaties to be "the supreme law of the land," binding every state judge, we gained a truly national judicial branch. This was soon to be the chief restraint on the states which, at that time, were coining or printing money, and passing bills of attainder, ex post facto laws, and "laws impairing the obligation of contracts."

It would be strange for the Constitution to permit at the federal level what had been curbed at the state level. Thus, the Fifth Amendment to the Constitution forbids the federal government from taking private property for public use without just compensation.

But since New Deal days, Congress has passed laws which have encroached on rather than merely regulated our trade and commerce. In other words, it has been doing what the states long ago had been restrained from doing by our Constitution. And just as it once took state judges of uncommon fortitude to resist what James Madison denounced as the states’ "rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project," so now it requires federal judges of equal fortitude to resist that same impulse in Congress.

For as Alexander Hamilton put it so forcefully, we must turn for the defense of our property and other rights to "courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."

'Suicide of West' imminent?

National Review listed James Burnham's "Suicide of the West" as one of the top 10 books that nudged America toward political conservatism in recent decades. (See rankings in their 50th anniversary edition.) Burnham was a young Trotskyite who turned against Communism and in his later years wrote for National Review. He wrote this book in 1964.

Burnham's thesis was that liberalism is the ideology of Western suicide.

For a young person unschooled in political thought, such as I was, this thesis was difficult to believe. Both JFK and LBJ were aggressive in their Cold War liberalism, which in those days included a strong pro-American component. Even the true believers on the Left assured us that they were pro-American, despite appearances to the contrary. Alger Hiss, the Rosenbergs and I.F. Stone were all leftist idealists, they never actually betrayed their country. Or so we were endlessly and emphatically told in the mass media and in our classrooms.

Well, it turned out that Burnham and his fellow conservatives were correct, and we had been lied to on virtually all fronts. We now know that Hiss, the Rosenbergs, Stone and many others on the American Left spied for the Soviet Union for years.

The leftists were not only for collectivism, they were against America and most of what it stood for. Their virulent assaults against the free market, against a strong military and against traditional American values were all of a piece. They regarded liberal journalists and liberal officials in all three branches of government as "useful idiots" and as loose allies in the steady drip of daily propaganda and assaults against America.

By now we are much further along in this process. Some of the most prominent liberal journalists and liberal Democratic leaders in government are no longer acting as merely useful idiots. Some of them are at last revealing themselves to be more malevolent than that.

This is most clearly seen in their move to prosecute those in the Bush admininistration who authorized the enhanced interrogation techniques (which they falsely call "torture") against a few of our top terrorist enemies.

We should recall at this point that the laws of war and the Geneva Convention clearly distinguish between (1) conventional soldiers and (2) nonuniformed terrorists who hide among civilians and attack from schools, mosques and civilian residences. Conventional soldiers, when captured, must be treated humanely. Nonuniformed terrorists, when captured, may be summarily shot.

Unfortunately, instead of shooting these vicious predators on the spot, our government unwisely treated most of them better than we have ever treated prisoners of war. They get better food in prison than our schoolchildren get in school cafeterias. There have been strict limits even on the interrogation techniques.

In three highly supervised cases waterboarding was employed to get vital information that saved many innocent lives. (Many of our own soldiers and sailors undergo waterboarding as part of their training, hence it is absurd to deem it "torture".)

But now many voices are telling us that this was unacceptable, that America's leaders must be punished, rather than thanked and honored, for this great so-called evil. They quote the Constitution much as Satan quotes Scripture, and they pretend to defend both America and the Constitution. However, this new thrust is clearly intended to demoralize those who are defending the country and to reduce or destroy America's future effectiveness in fighting our enemies.

Here at last the Left is taking a position that is so clearly anti-American that there is very little room at the margin for "useful idiots". Some Democrats on my "lunatic" list claim that foreign terrorists captured on the battlefield should be treated as if they were American citizens with Constitutional protections, but even for them that level of imbecility is not credible. Political maneuvering aside, their position can be seriously maintained for long only by the actual enemies of the United States.

For benefit of the lawyers and other confused citizens, let us apply the Left's argument in mirror image so that everyone can see just how bonkers it really is.

The FDR administration put more than one hundred thousand Japanese American citizens in concentration camps during World War II. This was clearly a much more heinous crime against humanity than waterboarding three Al-Qaeda terrorists. We should therefore prosecute all those Democrats still alive who had anything to do with perpetrating that great injustice. Correct?

The LBJ administration entered the Viet Nam conflict on the false and exaggerated claim of being attacked near the Gulf of Tonkin. This resulted in the deaths of tens of thousands of American soldiers and sailors and of millions of Asians. We should therefore prosecute all those Democrats who had anything to do with perpetrating and acting on that falsehood. Correct?

The Reagan administration's retributive attack across Libya's "line of death" in 1986 happened to kill Gaddafi's innocent young daughter. We should therefore prosecute all the Republicans who had anything to do with that attack. Correct?

The Obama administration's attacks on Taliban and Al-Qaeda terrorists using Predator drones and other means also produce collateral damage, killing innocent children and others, without benefit of legal hearing or trial by jury. Also the suspects are not even given their Miranda warnings. We should therefore (as Ted Olson has recommended in a recent thought experiment) prosecute everyone in the Obama administration who has anything to do with these attacks whenever they occur. Correct?

No, of course these assertions are clearly not correct. The concept is intended to be used only against the "evil" Bush administration, which in fact was trying with the best of intentions to protect America in a legally acceptable manner.

However, war is not police work, never has been, and never can be. The concept of prosecuting actions like this, if taken seriously, would degrade or destroy our ability to defend ourselves. But that is the whole idea. Our domestic enemies will now have another powerful new tool to weaken us, if we have become so confused and lacking in will as to allow it.

In summary, James Burnham was both correct and extremely prescient. Liberalism is indeed the ideology of Western suicide. We will see this in spades during the next four years.

Hedgehog beats the fox every time

British political philosopher Isaiah Berlin famously contrasted the hedgehog, who does one big thing, and the fox, who does many things. This was a particularly apt metaphor for Ronald Reagan and Jimmy Carter, as the former sought to win the Cold War and revitalize American commerce and the latter despaired of Americans’ "malaise" just as the long Iranian hostage crisis began to undermine his presidency. Reagan was under considerable pressure from his strongest supporters to solve a host of long-festering problems and certainly Reagan never lacked convictions for confronting them. But he was convinced that national security and world peace demanded his greatest efforts, which culminated in the collapse of the Soviet Empire. He built up our armed forces and thereby negotiated from strength with our less capable communist adversary.

No less demanding was the need to encourage vitality in our stagnant commerce, buffeted by decreasing purchasing power and increasing unemployment, with cuts in income tax rates. Unfortunately, we are currently in the beginnings of a resurgence of big government that we gained some relief from a quarter century ago.

Berlin was mindful of other statesmen of a similar single-minded determination. His countryman, Winston Churchill, set out to save Great Britain from defeat to a Nazi tyranny which had already conquered most of Europe, and ultimately helped save Western Civilization from collapse.

Such is statesmanship. Is George Washington remembered by anyone except historians for the positions he took on tariffs, excises or treaties? He devoted himself to winning independence from Great Britain, providing a national constitution and serving as the first president. A multitude of lesser problems survived him but so did the nation.

Our greatest national challenge came in 1861 when 11 states defied the results of a presidential election and its mandate for stopping the spread of slavery. Abraham Lincoln had hated slavery since childhood and gave it his single-minded attention when the Democratic party resolved to remove all obstacles to its movement into western territories previously closed to it.

Indeed, Lincoln was severely criticized for talking about virtually nothing else after passage of the 1854 Kansas-Nebraska Act, which allowed slavery in the old Louisiana Territory. His response was simply, "I’ll stop talking about it when everyone else stops talking about it."

Lincoln was not being perverse. Sen. Stephen Douglas of Illinois, author of the Kansas-Nebraska Act, sought to end slavery agitation by removing the controversy from the halls of Congress and throwing it out to the western frontier to be resolved by the first few settlers in territories forming into new states. But his plan backfired as southerners wanted guarantees for slavery and anti-slavery northerners were outraged at a massive equivocation on this fundamental question.

Later, even historians were critical, not only of Lincoln, but also of Douglas, as the two senatorial candidates in 1858 debated slavery in the territories and practically nothing else. Again, tariffs, excises and treaties were ignored as these longtime rivals explored the political, constitutional, legal, social and moral aspects of slavery. How could they be so single-minded?

The answer is, both Lincoln and Douglas understood that, until fundamental principles are resolved, action on other issues not only would have to wait but no prudent solutions for them were possible. If slaves may be taken to new territories, might Congress revive the international slave trade? What principle can distinguish the one form of "commerce" from the other?

No act of statesmanship, no matter how great, can guarantee results forever. Democrats imposed segregation, something very much like slavery, in the Southern states for a century following its official extinction.

Fortunately, no American president after World War II squandered the ascendancy maintained for the Western world, although Carter seriously underestimated the Soviet threat, militarily and strategically. However, the ultimate collapse of the Soviet Union opened the door to the long-dormant ambitions of Islamic extremists.

The quarter century of dynamic commerce generated when Reagan persuaded Congress to enact cuts in income tax rates was undermined by out-of-control credit in the federally subsidized housing market, which has corrupted all of finance, even as union contracts and retirement plans, public and private, have proved unsustainable.

Everything depends, then, as it so often does, on the character of the occupant of the Oval Office, for our Constitution designed the government for leadership in the various crises of human affairs. In this rich and powerful country, many things are going on but all pale in comparison to the requirements of the common defense and the general welfare.

Earth Day then & now

(Denver Post, Apr. 19) “The trouble with the eco-crusader is that his false guilt and his false fears feed endlessly upon each other.” With Earth Day coming up on Wednesday, I remembered this line from an old presidential speech. Can you guess who said it? “From the emotional remorse that we have sinned terribly against nature,” it continues, “there is but a short step to the emotional dread that nature will visit terrible retribution upon us. The eco-crusader becomes, as a result, deaf to reason and science, blind to perspective and priorities, incapable of effective action.” That’s telling’em, Mr. President. Or it would have been, if Richard Nixon hadn’t let staffers talk him out of giving the Eco-Crusader speech in September 1971.

Fired up by attacks on the “disaster lobby” by Look magazine publisher Thomas Shepard, and uneasy about his own role in establishing the Environmental Protection Agency after the first Earth Day in 1970, Nixon directed me and other speechwriters to produce a warning against ecological extremism that he could deliver as a major address.

Our draft died on his desk amid concerns about political backlash. I kept the file as a historical curiosity – the presidential bombshell that wasn’t. Today, four decades into the age of true-believing green religion, Nixon’s undelivered speech reads prophetically.

So does Shepard’s diagnosis that the environmental doomsayers “are basically opposed to the free enterprise system and will do anything to bolster their case for additional government controls.” So does the denunciation by Prof. Peter Drucker, another source we consulted at the time, of the green fallacy “that one can somehow deprive human action of risk.” The battle lines have changed little in 38 years.

I wish now that President Nixon, a gambler in foreign policy, had risked this piece of domestic truth-telling. One politically incorrect speech from the White House couldn’t have halted the tides of earth-worshipping guilt and fear that still engulf us. But it would have been a start. With braver leadership, sooner, America’s voices for environmental common sense might have been less outnumbered today.

Two of those lonely voices were in Colorado last week. Terry Anderson, head of the Montana-based Property & Environment Research Center, and Christopher Horner, a fellow at the Competitive Enterprise Institute in Washington DC, brought a coolly factual message to deflate some of the new-energy hype and carbon-phobia that Bill Ritter trades on and Obama wants to emulate.

Anderson literally wrote the book on free-market environmentalism – a 1991 volume by that title. He told the Independence Institute about PERC’s research on such inconvenient truths as the wildly oversold benefits of green jobs and the grim toll that cap-and-trade legislation to mitigate CO2 will take on our standard of living.

Horner’s current book is “Red Hot Lies: How Global Warming Alarmists Use Threats, Fraud, and Deception to Keep You Misinformed.” He told the Centennial Institute, where I work, that a recessionary economy and ten straight years of global cooling make this the worst time for a burdensome new carbon tax that “would not detectably impact climate anyway.”

If the eco-crusaders were serious about cleaner energy, says Horner, they would support nuclear power. They aren’t, so they don’t. And again, we find the battle lines unchanged; the nuclear debate also pervades my 1971 White House file. No, their aim is control, as Thomas Shepard warned. “For a new enemy to unite us, the threat of global warming fits the bill,” gloated the anti-growth Club of Rome in 1991.

Cheerleading mainstream journalists have decided the likes of Horner and Anderson “are not news,” as one bluntly told me – so you heard little about their visit to Ritterville. The governor letting eco-crusading foundations pay his climate czar’s salary has caused no stir either. We're supposed to believe a staffer beholden to ideologues at the Hewlett and Energy foundations gives Ritter objective advice? What sheep we are.

Sorry for saving the world

One of the most frustrating things about the left is that they seem to have little use for history and even less regard for objective facts. Facts have little use when you just "know" -- in your gut and with every fiber of your being -- that you are right. Emotion trumps rationality every time. How well policies work is always less important than how they make you feel. Try telling a liberal, for example, that the evidence is clear that socialism in Europe has led to flat economic growth, falling birth rates and a 1970s-style economic and social malaise, and you will get a retort about social justice, the moral imperative of universal health care and the "progressive enlightenment" of European environmental policies. On the left, its better to be enlightened than it is to be rich, I guess. In an academic exercise, such tripe is irritating but tolerable. But when such denial of reality becomes the dominant force behind U.S. government policy -- on almost every issue of importance -- it is time to take notice.  I've written many times that Barack Obama lives in a "parallel universe" inhabited by lots of feel-good imagery, moral clarity and social justice. This is the universe of Europe, and his recent trip showed him quite at home among the hand-wringers and apologists who value symbolic gestures over concrete action.

On Sunday, for example, Obama spoke in Prague before a huge crowd and talked about setting the stage for nuclear disarmament -- a long-time moral imperative of the left -- even as North Korea was launching a test missile capable of delivering one of its newly-developed nuclear warheads as far as Tokyo. Mr. Obama responded to this clear violation of U.N. resolutions by referring it back to the U.N. for "further action" -- meaning more hand-wringing backed by timidity. In Obama's world, of course, the U.N. has a special moral authority, and is the arbiter of choice in this kind of crisis. Forget about its track record. The symbolism of China, Russia and France -- not to mention Syria, Gabon and Tahiti -- being in charge of global security is the kind of image that brings smiles to those who believe that the United States is "just another nation". You know who those people are, right? They are the ones now in charge of your government.

Image, as it turns out, is everything on the left. So you will forgive Obama for apologizing all over himself for American "transgressions". He goes to Turkey and apologizes in effect for America's war on terror -- saying that we "are not at war with Islam" -- when, in fact, we are at war with a significant, virulent strain of the religion. He apologizes for the excesses of American capitalism as the root of the current economic crisis, when in reality the engine of the American economy has lifted the standard of living across the world.

Obama is so sorry. In the ultimate irony, the most hubristic of presidents in modern times want to walk the globe with humility. He wants the world -- the same world that America, with its blood and treasure, has saved repeatedly from extremism of all kinds -- to know how badly we feel and how sorry we are. We feel badly for being exceptional, for leading and for fighting for human freedom.

We're sorry for saving the world. I guess next time, we'll leave you with Hitler, Stalin and Saddam Hussein.