Yesterday’s Supreme Court decision on Obamacare is a tragic setback to the nascent movement of “political constitutionalism.” For three years, beginning with the emergence of the Tea Party, millions of citizens joined together in trying to settle the broad meaning of the Constitution through political means, by public debate and by efforts to elect public officials committed to a certain understanding of the purposes of the nation’s governing document. Courts should not be the sole arbiters of certain constitutional questions, especially those dealing with the extent and limits of government power. The political process has its own role to play in constitutional decision-making.
Archive for the Freedom Category
If the test of a clever orator is the ability to sell two incompatible positions at the same time, President Obama must already rank as one of the most adept rhetoricians in American history. The President steadfastly disavows any intent to foment division between economic classes, even as he works at every step to denounce the wealthy. At Osawatomie, Kansas last December, in what was billed as an historic speech on his governing philosophy, Obama insisted “this isn’t about class warfare,” and then went on immediately to attack “the breathtaking greed of a few” and “mortgage lenders that tricked families into buying homes.”
These lines were a throwback to the class rhetoric not only of Theodore Roosevelt, whose speech President Obama was channeling, but also of cousin Franklin, who fulminated in his First Inaugural against “the unscrupulous money changers [who] stand indicted in the court of public opinion.” These attacks are ostensibly not on the rich themselves, but on the undeserving rich. These poor souls were formerly characterized mostly by their practices and disposition (unscrupulousness and greed) and their occupation (finance). President Obama has added a political dimension: refusing to buckle to his idea of paying a “fair share.” The good or deserving rich, by contrast, are those like Warren Buffet, George Clooney, and Jon Corzine, who abhor the Bush tax cuts.
In the selection of Mitt Romney as the Republican nominee President Obama has found a target too rich to pass up.
When the Arab spring began a year ago, the Western world was shocked. Liberty seemed to have bypassed the Arabs; they had seemed resigned to tyranny. But once unleashed, the upheaval knew no restraint, and there were both mayhem and promise in the streets of the Arab world. Since then, the rebellions have spawned a steady stream of punditry and conventional wisdom about the Arab spring—some of it vastly mistaken. Let’s explore what really fueled the uprisings.
Myth one: Obama’s 2009 Cairo speech helped inspire the Arab spring.
Nothing could be further from the truth. By the time of these rebellions, the Arab and Muslim romance with President Obama had long vanished. He had gone to Cairo in June 2009 promising a new American approach to the Arab-Muslim world. But embattled liberals in the Arab world (and in Iran) had already begun to see through him. While Obama pledged “a new beginning between the United States and Muslims around the world, one based on mutual interest and mutual respect,” Arabs saw the new American leader’s ease with the status quo.
Obama set out to repair America’s relations with Syria and Iran, and gave George W. Bush’s “diplomacy of freedom” a quick burial. “Ideology . . . is so yesterday,” Secretary of State Hillary Rodham Clinton bluntly proclaimed in April 2009, identifying Bush’s assertive foreign policy as a thing of the past. As upheaval swept through Iran in the first summer of the Obama presidency, the self-styled bearer of a new American diplomacy ducked for cover.
Does imprisonment reduce crime? Yes.
Do many crimes cause considerable harm and hardships to victims? Yes.
Does America imprison too many people? In light of my answers so far, you might expect my response to this question to be no. But it is a strong yes.
Imprisonment reduces crimes against the general public, if only because of the incapacitation effect; that is, people in prison cannot commit crimes against the public (they can and do commit many crimes against other prisoners). For certain crimes, imprisonment is also a deterrent, so that potential offenders are kept from committing crimes by the prospects of prison terms, especially when there is a good probability of being caught.
On the other hand, imprisonment also raises the likelihood that some prisoners will commit crimes when they are released because their skills at legal employment eroded while in prisons, or they learned in prison how to be better criminals, or they become blacklisted for certain jobs, or other reasons. Nevertheless, a study on the decline in crime by economist Steven Levitt, along with other research, finds that on balance imprisonment reduces crime. The main disagreement is whether the whole effect of imprisonment on crimes comes from the incapacitation effect or whether some is also due to deterrence. I believe deterrence is also at work.
Ten years have passed since the opening of the U.S. detention facility at Guantánamo Bay, Cuba, and the anniversary was marked with much hand-wringing. There were articles by former detainees, a statement by retired military personnel, denunciations of President Obama for his failure to close the site, and tear-stained statements by human rights groups.
In a decade of policy experimentation at Guantánamo, some efforts have succeeded, some have failed tragically, and some are still in process. But far more interesting than the past ten years is what the next ten will look like. And that subject seems oddly absent from the conversation.
Make no mistake: there will be another ten years of Guantánamo. (Even if Guantánamo itself miraculously closed, we would have to build it somewhere else.) Our forces already hold more detainees than they can safely release or put on trial before any tribunal to which this country would attach its name. And in any future conflict against nonstate actors, our forces are likely to capture more of such people, and we will have to put them somewhere. If the United States is lucky, we may be able to reduce the number of detainees further than the combined efforts of the George W. Bush and Obama administrations have so far managed. But we will not eliminate it, and even if we could, we cannot guarantee that we will not replenish it all of a sudden in some future, spasmodic set of military operations abroad.
The detention and interrogation facility at Guantánamo Bay, Cuba, which I have visited, has served and continues to serve an important role in the war against terrorists since it opened a decade years ago. It houses high-value terrorist detainees, like Khalid Sheik Muhammad, the architect of September 11.
The military commissions’ courthouse, called the Expeditionary Legal Compound, is a world-class, state-of-the-art facility specifically designed to accommodate the needs of both defense and prosecutors dealing with classified information. The detainees there are represented by civilian and military counsel, and the U.S. Supreme Court has ruled that they enjoy the constitutional right of habeas corpus. The conditions of detention there are safe, secure, and humane, and comply with national and international standards, including Common Article 3 of the Geneva Conventions.
It is important to remember that the United States of America is engaged in armed conflict and has been since September 11, 2001. The September 18, 2001, Authorization for Use of Military Force, relied upon by both the Bush and Obama administrations, gives our military the legal authority to engage the enemy under appropriate circumstances.
1) If one suggests that there may not be, at least as yet, enough evidence to overturn the initial police decision of not charging Mr. Zimmerman with a crime, then one is a de facto racist.
In other words, the liberal position of letting all the evidence be reexamined in a dispassionate fashion is now illiberal. And the illiberal one of charging someone with a felony without established probable cause is liberal. But just arresting and charging a suspect to let a judge or jury post facto decide whether there was ever probable cause for such an arrest is neither liberal nor consistent with American jurisprudence.
2) It is clear now that the African-American civil-rights hierarchy is concerned largely with maintaining power and influence by promulgating the theme of unending white racism — and the need for its exclusive agency to find redress and reparations from that eternal fact. That is a serious charge, but one easy to substantiate — whether we compare the commensurate outrage accorded the Duke case, the Skip Gates mess, the Tawana Brawley hoax, or the present Trayvon Martin tragedy, with the veritable neglect about the carnage of young African-American males in our cities, or the deliberate distortion that white-on-black crime is an epidemic when, in fact, black-on-black crime is — in addition to the fact of vastly higher incidences of black-on-white crime.
The U.S. Constitution is, as Justice Ruth Bader Ginsburg has recently reminded us, “a rather old constitution.” In her parlance, old does not mean venerable or worthy of imitation. Speaking on Egypt’s Al Hayat TV, she advised constitution-drafting Egyptians to look to newer models; she singled out the Constitution of South Africa (1996), Canada’s Charter of Rights and Freedoms (1982), and the European Convention on Human Rights (1950).
Admittedly, the oath she swore to “bear true faith and allegiance” to the U.S. Constitution does not require Justice Ginsburg to recommend its adoption by all and sundry. There might be good reasons—rooted in history and circumstance—why a constitution suited to one people is not suited to another. Laws ought to be in accord with the general spirit of a nation, as Montesquieu, the great theorist of modern constitutionalism, argued. This was not the Justice’s point, however. She thinks there are blueprints worthy of export, just not the one ratified by Americans in 1787.
Her opinion is the fashionable one. A forthcoming article in the New York University Law Review confirms the declining influence of the U.S. Constitution. The reason?—“it is increasingly out of sync with an evolving global consensus on issues of human rights,” authors David S. Law and Mila Versteeg argue. This focus on rights (the more, the better) is evident in the documents Ginsburg endorsed. Two of them aren’t even constitutions in the usual sense of a plan of government. Instead, one is a supranational convention about human rights; another is a national charter of rights (added to the Canadian Constitution of 1867 when Canada, in 1982, finally became fully independent of the British Parliament).