The View From 1776

Robert Curry alerted me to an op-ed piece in today’s Washington Times that connects the dots between Friedrich Hayek’s 1944 message and the collectivist proclivities of too many of our politicians today.

In his October 29 column, New York Times columnist Paul Krugman expresses the implicit liberal-PC-multicultural paradigm that all cultures and all peoples are interchangeable.  Moreover, that people everywhere have the same thought processes and values as those of liberal-progressives.

Liberals, and presumably everybody other than Republicans, are against war, ergo Islamic jihadists must be misunderstood people who mean us no harm.  We have therefore only to be nice to them in UN negotiations to insure world harmony and peace.  (see Liberals Still Can’t Connect the Dots)

Mr. Krugman writes:

In America’s darkest hour, Franklin Delano Roosevelt urged the nation not to succumb to “nameless, unreasoning, unjustified terror.” But that was then.

To put it kindly, Mr. Krugman is not always too careful about the accuracy of what he writes.  His use of the quotation suggests that President Roosevelt was restraining hot-headed Americans who were imagining a war threat.  The subject of the phrase was, in fact, the Great Depression. 

The full quotation, from the President’s first inaugural speech in March, 1933, is: So first of all let me assert my firm belief that the only thing we have to fear. . .is fear itself. . . nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.

Note, first, that there was no threat of war at the time.  Hitler became Germany’s Chancellor just three months before FDR’s speech.  And note, second, that President Roosevelt was rallying the people to take action, urging them not to lie down and let history run over them, as peaceniks counsel us today.

Parenthetically, the American people had good reason to fear Mr. Roosevelt’s New Deal, though they could not have known that at the time.  Punitive regulation of business, quadrupled taxes, deliberate debasement of the dollar, and continual threats against businessmen paralyzed the economy.  Unemployment never averaged less than three times today’s rate before the start of rearmament for World War II in 1940.  In 1939, six years after the start of the New Deal, unemployment still averaged almost 17 percent, compared to around 4 percent today.

Mr. Krugman continues:

Today, many of the men who hope to be the next president — including all of the candidates with a significant chance of receiving the Republican nomination — have made unreasoning, unjustified terror the centerpiece of their campaigns…

For one thing, there isn’t actually any such thing as Islamofascism — it’s not an ideology; it’s a figment of the neocon imagination...

If so, how do we account for the Muslim Middle East’s extensive relationship with, and emulation of, Fascist regimes in Germany and Italy during the 1930s and 1940s.  Those were the experiences that shaped today’s Middle Eastern Muslim leaders’ views.  (See Iranian Specifics)

Again, Mr. Krugman:

Beyond that, the claim that Iran is on the path to global domination is beyond ludicrous...

On display is more of his affection for hyperbolic misstatement.

Nobody asserts that Iran seeks global domination.  It’s sufficiently worrisome that Iran’s president Ahmadinejad in 2005 declared that Israel should be “wiped off the map,” and that a single terrorist cell funded and protected by Iran has the potential to detonate a nuclear weapon in a crowded American city.

As I wrote in Pull Out of Iraq, Then What?, Iran doesn’t have to dominate the world militarily.  Controlling the world’s access to Middle Eastern petroleum will suffice.

Let’s pray that military action against Iran will never be necessary.  But let’s also pray that no American President adopts Mr. Krugman’s ostrich posture.

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The ill-named social “sciences” were a fabrication of the French Revolutionary philosophers, who believed that their minds were the only standards for human conduct. 

The end products were atheism and the materialistic religion of socialism. 

Both led to political tyranny, because those in power believe that their personal visions of perfection are the only standards, leaving them free to impose terror tactics running from the Reign of Terror in 1793 to the slaughter of tens of millions of people by Lenin and Stalin in the early 20th century.

From the materialism of the socialistic political state to the genital worship of Sigmund Freud, the social sciences have, on balance, been one large fraud; not science, but scientism.

Mike Adams’s account of his return to common sense paints the social sciences with a bit more respectability.

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Sunday’s sermon at Black Rock - Long Ridge Congregational Church (North Stamford, Connecticut) was preached by Rev. Larry Fullerton.

The word dangerous has more than one meaning in contemporary culture.  It can refer, of course, to the threat of physical harm.  It can also refer to someone with special skills, like an athlete who is always a potential scorer.  Christian churches must become dangerous in both senses.

Missionary work comes to mind in the first sense.  Black Rock - Long Ridge Congregational Church supports many missionaries around the world, for example in China and Muslim countries, where the threat of jail, torture, and execution is very real.

As churches here in the United States how do we become dangerous in the second sense?

Be Joyous and Believe:  The Apostle Paul in his letter to the church at Thessalonica wrote:

“For we know, brothers loved by God, that he has chosen you, because our gospel came to you not simply with words, but also with power, with the Holy Spirit and with deep conviction. You know how we lived among you for your sake. You became imitators of us and of the Lord; in spite of severe suffering, you welcomed the message with the joy given by the Holy Spirit.” (1 Thessalonians 1:4-6)

Proclaim the Gospel Everywhere: 

“And so you became a model to all the believers in Macedonia and Achaia. The Lord’s message rang out from you not only in Macedonia and Achaia—your faith in God has become known everywhere.” (1 Thessalonians 1:7-8)

Be Generous With Your Time, Talent, and Money:

“And now, brothers, we want you to know about the grace that God has given the Macedonian churches. Out of the most severe trial, their overflowing joy and their extreme poverty welled up in rich generosity. For I testify that they gave as much as they were able, and even beyond their ability. Entirely on their own, they urgently pleaded with us for the privilege of sharing in this service to the saints. And they did not do as we expected, but they gave themselves first to the Lord and then to us in keeping with God’s will. So we urged Titus, since he had earlier made a beginning, to bring also to completion this act of grace on your part. But just as you excel in everything—in faith, in speech, in knowledge, in complete earnestness and in your love for us—see that you also excel in this grace of giving.” (2 Corinthians 8:1-7)

Christian Love is the Foundation:

“A new command I give you: Love one another. As I have loved you, so you must love one another. By this all men will know that you are my disciples, if you love one another.” ( John 13:34-35)

No question, the tribulations of borrowers who are defaulting on subprime mortgage loans are real.  Those borrowers deserve our sympathy and our prayers.

But that is very far from saying that the Federal government can and must regulate choice to prevent individual misjudgment. 

A more important underlying cause than lack of Federal regulation was described in Infantile America:

Collapse of the subprime mortgage market reflects the “don’t trust anybody over 30” mentality of the Baby Boomers.

That brand of social justice preaches that everyone is entitled, indeed has a Constitutional right, to an equal share of society’s goods and services, without having first to work and save to acquire the objects of his desires.

Expressing the classic liberal view, New York Times columnist Paul Krugman adamantly disagrees.

In an opinion piece dated October 26, he writes:

Increased subprime lending has been associated with higher levels of delinquency, foreclosure and, in some cases, abusive lending practices.” So declared Edward M. Gramlich, a Federal Reserve official.

But maybe the subprime catastrophe will be enough to remind us why financial regulation was introduced in the first place.

Let’s grant that many subprime borrowers were ill equipped to understand the structure of the debts they incurred.  But elementary common sense, in past decades at least, would have informed them that borrowing a large amount of money with little or no savings cushion is a prescription for financial disaster.

Mr. Krugman’s desire for more regulatory control is a reflection of liberal statist ideology and Keynesian economics.  As Hillary Clinton maintained in It Takes a Village, intervention by the political state is necessary if people are to get by in real life.  People can’t make it on their own.

Keynesian economics calls for endless expansion of government spending and control.  Adding a new Federal commission to supervise subprime lending would satisfy both those aims: more regulatory control of individual choice and more government spending.

Mr. Krugman’s views about subprime lending make sense within the context of the Hegelian German philosophical and political ideology in which individuals have no meaning outside the political state; individuals’ role is to carry out the wishes of the political state. 

Mr. Krugman’s views make sense within the materialistic philosophy of Karl Marx, another German philosopher, who said that human nature is a variable that is within the control of the political state.

Mr. Krugman’s views make sense in the perspective of Immanuel Kant, yet another German philosopher, who stated that the proper role of the political state is to regulate its citizens so that they cannot act in ways contrary to the wishes of the state.

Mr. Krugman’s views, in short, make sense only within the purview of a collectivized, socialistic political state.

Our Constitution, however, came from an entirely different philosophical perspective: one of individualism in economic, political, and religious matters.  As James Madison observed in Federalist No. 10:

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government.

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It’s common knowledge that liberals, led by the ACLU, oppose wire-tapping of foreign-origin messages that pass through or are directed to the United States.  Unconcerned by Islamic jihadists’ demonstrated readiness to inflict mass casualties among our citizens, they see such surveillance as an unacceptable infringement of First Amendment rights.

What is not commonly recognized is that a large number of laws enacted by Congress, wartime security restrictions among them, are clearly unconstitutional.

Robert F. Turner, in a Wall Street Journal op-ed piece, explains:

The Surveillance Law That Matters
By ROBERT F. TURNER
October 24, 2007; Page A20

I have never met Judge Michael Mukasey, and I have no strong feelings on who should be our next attorney general. But after four decades studying and writing about national security aspects of our Constitution, I believe Congress and the American people must understand that some of the issues raised in Mr. Mukasey’s confirmation hearings are far more complex than they may initially appear.

Take, for example, Sen. Pat Leahy’s question to Mr. Mukasey about whether the president has the power to violate the Foreign Intelligence Surveillance Act (FISA). I know that statute well, having worked in the Senate when it was enacted in 1978, and later serving as the senior White House lawyer under President Reagan charged with overseeing the implementation of FISA and other intelligence laws.

The real issue here is not whether the president is “above the law,” but rather which “law” he must see “faithfully executed” when there is a conflict between the Constitution and an inconsistent statute. His highest duty, I submit, is to the Constitution itself.

In 1803, Chief Justice John Marshall declared in Marbury v. Madison: “an act of the legislature repugnant to the Constitution is void.” From the earliest days of our history until FISA was enacted, it was understood by all three branches that the Constitution had left the president (to quote “Federalist 64") “able to manage the business of intelligence as prudence might suggest.”

When Congress passed the first wiretap statute in 1968, it expressly declared that nothing in it would limit “the Constitutional power of the President” to collect foreign-intelligence information. Every administration from FDR to (and including) Jimmy Carter engaged in warrantless foreign-intelligence wiretapping in the belief that this was one of the “exceptions” to the Fourth Amendment’s warrant requirement. Others include border searches and searches of commercial airline passengers and their luggage (not to mention the requirement, imposed by Congress, that citizens entering a congressional office building to exercise their constitutional right to petition their government for redress of grievances must submit to a warrantless search absent the slightest probable cause).

In 1978, Carter administration Attorney General Griffin Bell told the Senate that FISA “does not take away the power of the President under the Constitution”; but he explained that the statute could nevertheless work because President Carter was “agreeing to follow the statutory procedure.” That was Mr. Carter’s prerogative as it is President Bush’s—but neither they nor Congress may take away the constitutional power of future presidents.

The Foreign Intelligence Surveillance Court of Review (composed of federal appeals court judges) noted, in a unanimous 2002 opinion,that every federal court to decide the issue held the president has constitutional power to authorize warrantless foreign-intelligence electronic surveillance. The opinion added: “FISA could not encroach on the President’s constitutional power.”

The Supreme Court has had at least six opportunities to limit presidential power in this area. In the 1967 Katz case that first required a warrant for wiretaps, the Court expressly exempted “national security” wiretaps from its holding. When it required a warrant for national security wiretaps of purely domestic targets in 1972, it exempted electronic surveillance of the “activities of foreign powers and their agents” in this country. On four other occasions it declined to hear cases on appeal where it had the opportunity to impose a warrant requirement on foreign-intelligence electronic surveillance.

Much contemporary debate over presidential claims of power to ignore “laws” fails to appreciate the modern congressional practice of enacting flagrantly unconstitutional statutes. This helps explain the increased use of presidential “signing statements” in recent decades. On June 11, 1976, Sen. Robert P. Griffin (R., Mich.) inserted a lengthy statement I’d drafted into the Congressional Record explaining why “legislative vetoes” of executive agency actions were unconstitutional. Seven years later, the Supreme Court echoed those arguments in reaching the same conclusion in the Chadha case. The congressional response? It has since enacted more than 500 new unconstitutional legislative vetoes.

Mr. Mukasey rightly promised to resign rather than violate his oath of office if the “president proposed to undertake a course of conduct that was in violation of the Constitution” and could not be dissuaded. For precisely the same reason, he was also right to refuse to be bound by unconstitutional acts of Congress like FISA that usurp presidential power. Any senator who elects to vote against him because of this issue has a duty to explain to the American people by what theory an unconstitutional statute has suddenly taken on a superior position to the Constitution itself.

Mr. Turner holds both professional and academic doctorates from the University of Virginia School of Law, where he cofounded the Center for National Security Law in 1981. He is a former three-term chairman of the American Bar Association’s Standing Committee on Law and National Security.

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The Constitution of the United States was written in 1787 and ratified in 1789, almost 70 years before Charles Darwin published “On the Origin of Species” in 1859.  On what authority, then, do liberals on and off the bench assert that Darwinian doctrine has invalidated the original Constitution? 

Darwinian evolutionists stand for two mutually exclusive doctrinal positions. 

First, they deny intelligent design in the universe, their materialistic philosophy dictating that all life forms are the product of pure chance in their interaction with changing physical conditions of their environment. 

Second, however, they tell us that those evolving, chance permutations of environmental conditions, evidenced as media-influenced public opinion, are to be the source of political stability, the texts for interpreting the Constitution.  A presumably designless struggle for survival, in which might makes right, is to replace the Constitution’s orderly restraint upon arbitrary Federal power and its protection of individual rights against mob rule.

What liberal intellectuals really mean is that their opinions are continually changing, and that our Constitution must continually be reinterpreted to reflect those unstable opinions.

One thing is very clear from recent history.  The divisiveness about which liberals complain originated with them, as the result of their demanding that Darwin be the arbiter of Constitutional law.  Divisiveness is a reflection of Darwin’s struggle for survival, instituted by liberals.

Professor Gary McDowell’s op-ed article in the Wall Street Journal recounts the notorious event that converted political disagreement into a total-war kultur kampf.

The War for the Constitution

By GARY L. MCDOWELL
October 23, 2007; Page A19

Twenty years ago today the United States Senate voted to reject President Reagan’s nomination of Judge Robert H. Bork to the Supreme Court. The senators may have had every reason to believe that was the end of the story. However ugly it had been, however much time it had taken, Mr. Bork’s defeat was only one more routine sacrifice to partisan politics. But time would prove wrong anyone who actually thought that. Mr. Bork was politically transformative, its constitutional lessons enduring.

A former Yale law professor and U.S. Solicitor General, Mr. Bork was, at the time of his nomination, a judge on the United States Court of Appeals for the District of Columbia Circuit. When he was a circuit court judge, Mr. Bork’s opinions not only were never overruled on appeal, but on several occasions his dissents were adopted by the Supreme Court as its majority view.

In an earlier day such an appointment would have been celebrated as adding breadth, depth and luster to the highest bench. Instead, the nominee faced a mauling by those who set out not only to destroy him personally but to discredit all that he stood for as a jurist.

It was immediately clear that the unprecedented vote of 58-42 against his confirmation reflected something far more historic and fundamental than an ordinary partisan standoff. The confrontation in fact had been one of the most cataclysmic and divisive events in American domestic politics during the second half of the 20th century. The reason was that Mr. Bork’s opponents succeeded in making the fight over his nomination into a contest over the future of the Constitution.

The issue that united the judge’s critics in their fiery, scorched-earth opposition was never his ability or reputation but rather his theory of judging. Mr. Bork’s belief was that judges and justices in their interpretations of the Constitution must be bound to the original intentions of its framers. In his sober constitutional jurisprudence there was no room for any airy talk about a general right of privacy, allegedly unwritten constitutions, vague notions of unenumerated rights, or what the progressive Justice Black once derided as “any mysterious and uncertain natural law concept.” For Mr. Bork, the framers said what they meant, and meant what they said.

Mr. Bork’s approach had its roots in hundreds of years of common law history as well as in the political philosophy of those whose works serve as the foundation of American constitutionalism. Chief Justice John Marshall had summed up that received tradition when he proclaimed that recourse to a lawgiver’s original intention is “the most sacred rule of interpretation.” In Marshall’s view, it is always “the great duty of a judge who construes an instrument . . . to find the intention of its makers.” As with Marshall, so also with Mr. Bork.

At its deepest level, Mr. Bork’s defeat was the result of the very public affirmation by the Senate of a dangerous theory of ideological judging that had been developing for quite some time. It was the idea of a so-called “living” Constitution, one that various scholars have said means there need be “no theoretical gulf between law and morality,” and that ordinary judges are empowered to interpret the fundamental law in light of their own “fresh moral insight” in order to effect a judicially mandated “moral evolution” of the nation.

The aim of this new approach to judging that was used to pillory Mr. Bork was not a matter of mere metaphysical speculation. It was the concrete political reality of Roe v. Wade and its judicially created right to abortion—and behind that, Griswold v. Connecticut and its even more amorphous right to privacy. Mr. Bork’s originalism denied the constitutional legitimacy of such contrived decisions and would have left such issues to be resolved by the people in their legislatures.

Thus, his nomination threatened not only all that had been gained by judicial fiat, such as abortion rights, but all that might be gained, such as constitutional protections for same-sex marriages. That was why, to his critics, he had to be stopped at all costs.

The price paid has proved high, indeed. The defeat heralded a fundamental transformation in the process surrounding judicial appointments and thereby radically politicized the public’s view of the nature and extent of judicial power under the Constitution. Confirmation battles from Mr. Bork to Clarence Thomas to Samuel Alito have taken on the trappings of ordinary political campaigns, from instant polling to rallies and protests and attack ads. Sadly, the courts are no longer above the fray.

The Supreme Court has continued to give voice to the rhetoric of a morally evolving or living Constitution, along the way upholding Roe in 1992 and striking down state sodomy laws in 2003. Moreover, the Court has decreed that it is “invested with the authority to speak . . . before all others for [the people’s] constitutional ideals.”

And Judge Bork’s replacement as a nominee, Justice Anthony Kennedy, has insisted that the concept of liberty has both “spatial” and “transcendent dimensions,” the boundaries of which “are not susceptible of expression as a simple rule.” Thus constitutional meaning, even for some Republican appointees, is no longer a matter of the framers’ intention but only the judges’ intuition.

Recalling Mr. Bork’s experience serves to remind us of how precarious the judiciary’s balance is at any given time, and how today’s highly politicized process prevents even the most gifted and prominent jurists from expecting to be confirmed (or perhaps even desiring the chance to undergo the ordeal).

But more important, it is a reminder that presidents must be willing to undertake what they know will be a horrific fight in order to see the bench filled not with liberals or conservatives or partisans, but with constitutionalists.

In this sense, the Bork vote is not just a matter of quaint historical interest, but the first great battle in the contemporary war for the Constitution—a continuing war that must be won if true self-government is to prevail.

Time has shown that Mr. Bork’s theory of constitutional interpretation remains very much alive; he was defeated but his central idea was never discredited. That theory of interpretation and its implicit belief in restrained judging should continue to guide anyone who believes that the inherent arbitrariness of government by judiciary is not the same thing as the rule of law.

Mr. McDowell, currently a recipient of a fellowship from the National Endowment for the Humanities, is a professor at the Jepson School of Leadership Studies at the University of Richmond.

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