SOBRAN'S --
The Real News of the Month
July 2005
Volume 11, Number 7
Editor: Joe Sobran
Publisher: Fran Griffin (Griffin Communications)
Managing Editor: Ronald N. Neff
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CONTENTS
Features
-> Reagan's Folly
-> The Moving Picture
-> Editorial Note
-> The Judicial Veto
Nuggets (plus electronic Exclusives)
List of Columns Reprinted in This Issue
FEATURES
{{ MATERIAL DROPPED OR CHANGED SOLELY FOR REASONS OF
SPACE APPEARS IN DOUBLE CURLY BRACKETS. EMPHASIS IS
INDICATED BY THE PRESENCE OF "EQUALS" SIGNS AROUND THE
EMPHASIZED WORDS. }}
Reagan's Folly
(page 1
As I write, the retirement of Sandra Day O'Connor
from the U.S. Supreme Court has taken Washington by
surprise. Most people assumed that Chief Justice William
Rehnquist, struggling with cancer, would step down before
Justice O'Connor {{ (who conquered her own cancer a few
years ago). }}
O'Connor was appointed to the Court by Ronald Reagan
in 1981, fulfilling his campaign promise to name the
first woman justice. {{ Great was the rejoicing in the
media. Not so great has been the nominee herself. }} Like
most such "historic firsts" {{ (Thurgood Marshall comes
to mind), }} she was welcomed with praise she had done
nothing to merit and would do little to justify later.
According to one rumor I heard at the time, Reagan
had told her the seat was hers if, but only if, she
pledged to vote his way on the next abortion case to
reach the Court. She so pledged. But she turned out to be
Reagan's Folly. Over the years, she proved not to be a
consistent conservative, or for that matter, a consistent
anything.
It was her inconsistency that became her trademark.
She had no discernible philosophy, except maybe
country-club Planned Parenthood Republicanism. {{ This
meant that you never knew which way she was going to vote
on a given case. }} But, with Anthony Kennedy, another
Reagan pick, she did join the liberals in most rulings on
abortion and other "social issues." On the whole, she
left conservatives annoyed and disappointed. But she
endeared herself to liberals as the "swing vote" who was
there for them when they needed her. She'd done almost
nothing to reverse their accumulated gains.
The surprise of O'Connor's retirement lasted about
ten minutes, and was then followed by preparations for a
confirmation rumble to match those of Robert Bork and
Clarence Thomas. Senate Democrats warned President Bush
that he'd better choose a judge from the "mainstream,"
another "moderate" {{ -- that is, a reasonably orthodox
liberal, especially one who won't give them grief on
abortion -- }} to fill her seat, or else. (Ted Kennedy
brandished the brass knuckles he'd used on Bork.) But
now, in contrast to the Bork-Thomas days, Republicans
control the Senate and, for a change, they seem disposed
to fight for whomever Bush names; {{ if he names a
conservative, he will also enjoy the support of the
powerful right-wing propaganda apparatus that has emerged
since the Clinton era. (If he picks someone the Democrats
can be content with, he will alienate his own base.) }}
Bush and his guru, Karl Rove, aren't principled
conservatives, but they are proven political winners.
They want to consolidate Republican dominance over the
country, and only the Supreme Court remains to be
conquered. The Democrats' demand for compromise, on the
other hand, means they know the most they can hope for is
half a loaf. Bush and Rove would be foolish, and out of
character, to give them that much.
Which is all very well for Bush, Rove, and the
Republicans. But one-party control isn't a cure for
what's wrong with the Federal judiciary. The flaw is more
than a personnel problem that can be fixed by appointing
"better" justices. It lies in the very nature of the
judicial power created by the Constitution itself, and
aggravated by later amendments and perverse
interpretation.
The Moving Picture
(page 2)
The tardy revelation that a disgruntled FBI man was
"Deep Throat," the mysterious WASHINGTON POST source
during its Watergate reporting, caused excitement among
the capital's senior liberals. Everyone else, however,
seemed to need an explanation: Why does it matter? Well,
in a way it never did. But the People Who Counted in
those days had decided that Nixon was a monster ranking
just below Joe McCarthy and the Emperor Nero, and nailing
him had become their obsession. Actually, Nixon was quite
a conventional politician, and liberals have never been
properly grateful to him for expanding the government's
power.
* * *
Phony indignation is the currency of American
politics, and Karl Rove has stirred up a lot of it by
charging that liberals responded to the 9/11 attacks by
wanting to offer "therapy." Absurd, of course, but no
more so than many things the two parties say about each
other. It was once routine for Democrats to charge Ronald
Reagan with making "war on the poor," even as he approved
huge increases in socialist spending programs.
* * *
The neocon agenda for the Middle East has gone from
"regime change" to cultural transformation, a goal
President Bush is dutifully pursuing. Since a culture is
a complex set of deeply ingrained habits, often ancient,
we may wonder how many troops on the ground will be
required to achieve equality of the sexes among Muslims
within the next couple of years. This must be the only
project for which Bush isn't willing to budget enough
dough.
* * *
Though I no longer share the late James Burnham's
views on the Cold War, I'll always remember, with
admiration, the hard-headed lucidity he brought to
geopolitical analysis. I worked with him for years at
NATIONAL REVIEW, and reading some of his old columns
again causes me to reflect not only that he couldn't
write for the magazine today: he wouldn't even bother
reading it. Bellicose jingoism was never his style.
* * *
Not that Burnham wouldn't have had valuable things
to say about the post-Cold War world; his mind always
adapted readily to the logic of new situations. In the
mid 1970s he saw that terrorism posed problems that
democracies are poorly equipped to deal with, and he
predicted that it would only increase in the years ahead.
The Bush administration's response to it would have
struck him as futile and self-defeating.
Editorial Note
In order to bring the July issue to you, we have
reprinted three columns which have not previously
appeared in SOBRAN'S newsletter. Every year, Joe writes at
least 104 columns. Since we reprint only 6 columns per
issue, that leaves at least 32 columns every year that
are not included in the newsletter. The choice of which
ones to omit is not easy: sometimes events at the time
seem to suggest one column over another, and sometimes
excellent columns get left behind.
These three columns (on pages 5, 6, and 7) fall into
that category. They are much older than the reprints we
usually use, but I think you will agree that their
quality more than makes up for their age.
-- Ronald N. Neff
Managing Editor
The Judicial Veto
(pages 3-4)
When the U.S. Supreme Court ruled, in early June,
against state laws allowing the use of marijuana for
medical purposes -- relieving the agony of cancer
patients, for example -- the 6-to-3 majority wasn't
taking a stand against grass. It was reaffirming the
sovereignty of Federal laws over state laws.
Since 1942, when {{ Franklin Roosevelt's }} Court
held that Congress's power to "regulate" interstate
commerce is virtually boundless, the judiciary has made a
habit of subordinating the entire U.S. Constitution to a
few phrases that trump the rest of the document. As
Clarence Thomas put it, in his dissent in the present
case, "If Congress can regulate this under the Commerce
Clause, then it can regulate virtually anything, and the
Federal Government is no longer one of limited and
enumerated powers."
Well, that's more or less the idea. In the 1942
case, the Court ruled that an Ohio farmer who grew grain
on his own property to feed his own cattle was engaged in
interstate commerce, because if everybody did it, grain
prices everywhere would be affected, don't you see.
Somehow this was "commerce," even though no money had
changed hands. It was a famous victory -- for limitless
Federal power. Neither side in the marijuana case
questioned this absurd precedent.
Even worse has been the High Court's abuse of the
Fourteenth Amendment. Never mind that the amendment was
very questionably ratified after the Civil War;
{{ seceding states ratified it under duress, as a
condition of being readmitted to the Union (despite the
Union's claim that they had never legally ceased to
belong to it), and New Jersey's rescission of its
ratification was disallowed. Very fishy -- but never
mind. }}
Eventually the Court used phrases in the Fourteenth
-- especially "equal protection of the laws," in
combination with the theory that the Bill of Rights
somehow applied to state laws -- to declare innumerable
state laws and policies unconstitutional. This led to the
"historic" Court rulings so beloved of liberals: on the
separation of church and state, loyalty oaths, racial
segregation, public-school prayer, legislative
apportionment, police procedures, pornography and
censorship, contraception, abortion, capital punishment,
welfare eligibility, sodomy laws, and myriad "rights"
that could have occurred only to the American Civil
Liberties Union. (Which, in fact, brought many of the
lawsuits that gave rise to the Court's most outre
decisions.)
Over the past half century, the Federal judiciary
has actually transformed American life far more than
Federal legislation has. And even that legislation owes
much to judicial support, especially to a broad
interpretation of Congress's power over anything it
chooses to call "interstate commerce." At every step, the
judiciary has been virtually amending the U.S.
Constitution.
The Court's "activism" peaked, but didn't cease, in
the era of Earl Warren, chief justice from 1953 to 1968.
In fact some of its worst rulings came after Warren's
departure, most notably Roe v. Wade in 1973, which has
appalled even some pro-abortion liberals by its sloppy
thinking and needlessly provocative transgression of
ordinary political processes.
Though he turned out to be unexpectedly liberal,
Warren wasn't quite as bad as William Brennan, Thurgood
Marshall, or William O. Douglas, all of whom remained on
the Court after him, to be joined by Harry Blackmun, John
Paul Stevens, and David Souter.
It was no use pointing out that the Court's
reasoning was flawed, or that its holdings defied history
and plain language. "Congress shall make no law
respecting an establishment of religion" doesn't mean,
and never meant, "There shall be total separation of
church and state, at every level of government." "The
freedom of speech [and] of the press" doesn't mean, and
never meant, an unqualified "freedom of expression,"
protecting topless dancing and the like. And to
"regulate" meant to regularize, not to exert total
control.
It all insulted common sense; but to this day,
popular outrage at such "legislating from the bench" has
hardly made a dent in the Court's arrogance. Today even
conservatives take for granted that its most important
function is to strike down unconstitutional laws, even if
conservatives disagree with liberals as to what these
are. By now judicial review is so well established that
few can even imagine an alternative to it.
And yet the Constitution itself says nothing about
judicial review. The first notable case for the idea
appears in Federalist No. 78, where Alexander Hamilton
argues that if an act of Congress conflicts with the
Constitution, the courts must {{ rule in favor of the
Constitution and }} declare the act "void." Otherwise, he
says, the act will supersede the Constitution. Thus
judicial review appears to be a logical necessity of
constitutional government.
Chief Justice John Marshall repeated this argument
substantially in his famous opinion in Marbury v.
Madison, 1803, where he asserted the power of the Supreme
Court to nullify unconstitutional acts of Congress. "It
is emphatically the province of this court," he wrote,
"to decide what the law is." This claim enraged President
Thomas Jefferson, as well as others who feared an
overweening judiciary as a threat to popular government.
Marshall never fully exercised the power he claimed
for the Court. In fact, the Court never declared an act
of Congress unconstitutional until 1857, when Chief
Justice Roger Taney's Court, in its Dred Scott decision,
boldly pronounced the Missouri Compromise invalid, on
grounds that Congress had never had power to prohibit
slavery in the territories. {{ Taney's majority opinion
needlessly inflamed the issue with gratuitous remarks
about race. }}
After the Civil War, the Court became more
aggressive. Some of Abraham Lincoln's appointees, Chief
Justice Salmon Chase for example, struck down laws they
themselves had helped to pass!
But, after all, these were =Federal= laws. In later
generations the Court would declare =state= laws invalid,
monotonously citing the Fourteenth Amendment in
justification. Today it rarely strikes down Federal laws,
but it exercises a virtual veto over state legislation.
Jefferson bitterly opposed the whole principle of
judicial review. Both Hamilton and Marshall became his
personal enemies. To most Americans now, this seems
almost incomprehensible; they assume that judicial review
is a necessary component of the "checks and balances"
they've been taught are essential to American government,
and they can't even imagine an alternative. If the three
branches of government are to be both "separate" and
"equal," the judiciary must have some control over the
other two branches.
For Jefferson, as I read him, members of all three
branches were bound by the Constitution as they
understood it; but none could claim a special or
exclusive power to impose its understanding on the
others. The courts' opinions were binding only on the
parties in cases before them; but lower courts, as well
as the other branches, were free to take their own views,
following their own reason and judgment. Even a Supreme
Court ruling wasn't "the law of the land."
And who ever said anything about equality among the
three branches? Even Hamilton observed that the judiciary
would be no danger to liberty because of its "natural
feebleness." The legislative branch controls the purse,
the executive the sword; but the judiciary, neither. It
has "neither FORCE nor WILL but merely judgment," and
depends on the executive even to enforce its judgments.
It is "beyond comparison the weakest of the three
departments" and "the least dangerous." For this reason,
says Hamilton, judges must have lifetime tenure in order
to preserve the independence of the judicial branch.
Hamilton might have said more. Congress, with
representatives elected by the people and senators chosen
by the states, was to be "beyond comparison" the most
powerful branch, since it had the power to impeach, and
remove, members of the other two. The three branches were
"co-ordinate," but far from equal.
Curiously, Hamilton didn't foresee that the courts
might be allowed to abuse their power, except perhaps
with the connivance of at least one of the other two
branches. And both he and Marshall failed to foresee what
actually would happen: that a later amendment -- the
Fourteenth -- would be used to wreck the whole
constitutional design, by making nearly all state
legislation subject to the Federal courts. Their notion
of judicial review envisioned the Supreme Court as a
check only on acts of Congress, not on acts of state
legislatures.
The key point here, ignored by nearly everyone,
including the Court's most severe conservative critics,
is that it's meaningless to speak of "checks and
balances" when the states have no defense against the
Federal courts. The problem isn't just "legislating from
the bench"; it's the habitual usurpation of powers that
belong to the states. And part of this larger problem is
that the U.S. Senate no longer represents the states; the
Seventeenth Amendment decrees that senators shall be
popularly elected rather than appointed by state
legislatures as of old. Few Americans realize that the
Seventeenth destroyed what remained of the original
balance between state and Federal power.
The real remedy for judicial usurpation is, or
should have been, impeachment. But this measure has
seldom been used against members of the Federal
judiciary; sometimes for personal offenses such as tax
evasion, but never for the abuses of power that affect
everyone.
So the original constitutional plan is good and
dead. Far from curbing the unwarranted growth of Federal
power, both the Senate and the Federal judiciary now
consistently serve to centralize power and to further
enfeeble state and local government. There is no mystery
about it; it has all happened under our noses, with
little opposition or even comprehension. Assured that
this is how "our democracy" is supposed to work, the
American people have passively assented to Federal
tyranny.
NUGGETS
AMIGO: President Bush was peeved when conservative groups
served notice that they'd be mighty unhappy if he named
Attorney General Alberto Gonzales, who seems to support
legal abortion, to fill a Supreme Court vacancy. "I don't
like it at all [that these groups are complaining]," Bush
said. Naturally, since Gonzales is an old Texas pal and
crony. He didn't say whether he liked it that the
Democrats were praising the guy. (page 6)
SELECT FEW: The retiring Sandra Day O'Connor has joined
Bob Dole, Orrin Hatch, Gerald Ford, Arlen Specter, and a
handful of others in the Democrats' list of Great
Republicans. Her mentor, Barry Goldwater, has long since
been admitted. (page 7)
MEDIA MARTYR: NEW YORK TIMES reporter Judith Miller has
been jailed for refusing to identify a source. Not that
she should have to, but ever since Watergate the
importance of confidential sources, official secrets,
scoops, leaks, investigative reporting, and daily
journalism itself has been vastly exaggerated, while the
sanctimony of the press has correspondingly swollen. We
don't need inside stories to tell us what's wrong with
government. Our own principles should tell us all we
really need to know. (page 9)
LITMUS TEST: Ann Coulter has the right idea: "We will
accept only judicial nominees violently opposed by Chuck
Schumer." (page 11)
Exclusive to electronic media:
SAY AGAIN? The London bombings of July 7 have left both
supporters and opponents of the Iraq war claiming their
views have been vindicated. Stanley Crouch of New York's
DAILY NEWS says the war is "most deeply a war of ideas in
much the same way that World War II was." I guess so, if
you count crazy ideas.
TURNCOAT: What's with Christopher Hitchens? The
brilliant, bilious British expat, once a Trotskyist, has
abandoned the Left to support the Iraq war for reasons I
continue to find obscure. Despite his withering criticism
of Zionism (muted lately), the neocon press has happily
adopted him. I miss the good old days when he was a
commie.
REPRINTED COLUMNS
(pages 5-12)
* The Bible and the Schools (November 18, 1999)
http://www.sobran.com/columns/1999-2001/991118.shtml
* Symptoms of Tyranny (November 28, 2000)
http://www.sobran.com/columns/1999-2001/001128.shtml
* Confessions of a Reactionary Utopian (March 27, 2001)
http://www.sobran.com/columns/1999-2001/010327.shtml
* The Acquittal (June 14, 2005)
http://www.sobran.com/columns/2005/050614.shtml
* The Language of Lear (June 16, 2005)
http://www.sobran.com/columns/2005/050616.shtml
* They Made Me a Flag-Burner (June 23, 2005)
http://www.sobran.com/columns/2005/050623.shtml
* Brutus and the Court (June 30, 2005)
http://www.sobran.com/columns/2005/050630.shtml
* Destroying the American Republic (July 5, 2005)
http://www.sobran.com/columns/2005/050705.shtml
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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