On Mitt Romney

Throughout this perpetual presidential campaign of ‘08 Mitt Romney has struck me as that good guy in high school who portrays himself to be something he is not in an effort to convince the hot girl in school to go out with him. Every intimate account I have read of the governor has painted the picture of a decent and intelligent man whose greatest talent is his executive competence. His record of accomplishment in the private business sector is undoubtedly impressive, and to a certain extent so to is his record as governor of Massachusetts.

What’s more, as profiles have demonstrated in the Wall Street Journal and the Weekly Standard, his approach to politics and the individual issues that present themselves in government is refreshingly non-ideological, based instead in assessing objective data and the various options available.

This is Governor Romney’s greatest asset, and should therefore be the theme of his campaign. Logically he should be running as an accomplished executive who will bring and utilize that prowess as the nation’s chief-executive, enabling him to resolve the various challenges that face this nation, notably deficit, debt, health-care, and Social Security.

But this has not been the message what I and I think many other Republicans have taken from his campaign. He has tried to present himself—in a field noted for its lack of a standard, consensus conservative—as the pro-life candidate in the race, the ideological representative of the culturally conservative base of the Republican Party.

The problem is that until very recently this was not reflected in his record in Massachusetts. He was, by his own admission, "operationally pro-choice" as a candidate for U.S. Senate in ‘94 and again as a candidate for governor in ‘02. At those times he presented himself in the terms I outlined above.

Running now for president, he has done an about face. I do not intend to question the personal validity of Governor Romney’s conversion in matters of life, and in fact welcome it1, but merely point out that this has understandably created concerns among the Republican electorate about the veracity of his principles. His evolving positions—on life and other issues—has given some cause to believe that he is willing to say what is necessary to get him elected, the consummate paragon of the stereotypical politician.

My advice to Governor Romney would be to stop trying to be something you are not—the tribune of the pro-life right—and run on your strengths; as the candidate with the best executive accomplishment and competence. That is a compelling message in an election where competence is of such salience.


1. As the editors of National Review have written on multiple occasions in this campaign, social conservatives should embrace and celebrate those who convert to their cause, not shun and question their motives. For the cause to succeed it needs to compel people to convert, in the exact manner Governor Romney has.

Sen. Obama on 'Face the Nation'

Sen. Obama appeared on Face the Nation this past Sunday and made a few comments worthy of examination and response.

Host Bob Schieffer asked him about recent comments from former President Clinton to the effect that Sen. Obama does not have the experience in government–specifically in foreign affairs–that entitle and qualify him to be President of the United States. The Senator parried the criticism by pointing out that President Clinton had met the same criticism in his run for President in ‘92, which clearly did not end up disqualifying him for the Presidency in November of that year, at least not in the minds of the American voters.

Sen. Obama is correct to a certain extent, in that the same criticism was directed towards then-Governor Clinton is now being directed towards Sen. Obama. But time and circumstance in 1992 and now are quite different.

In the former election year the nation was just emerging from victory in the Cold War and was witnessing the disintegration of the Soviet Union and the threat it had posed since the end of World War II. In consequence, the salience of foreign affairs faded dramatically in the mind of the American voter; it was "the economy, stupid." President Clinton was able to run on the "Peace Dividend", an implicit acknowledgment by Governor Clinton that he was indeed inexperienced and untested in the sphere of foreign affairs but that it did not matter and would not matter in a decade which has been dubbed by many—accurately in my mind—a "vacation from history."

Now the vacation is over. The United States is immersed in a struggle with radical Islam of a global scale and reach, the fulcrum of which is our involvement in Iraq. We are at a point there where the direction this nation decides to take in the next year or so will make all the difference in American victory or defeat.

Beyond Iraq, it is a dangerous world we live in. We are in a struggle with al-Qaeda and the Taliban in Afghanistan that has never truly received the attention from this country and the global community that it warrants. Right next door we face a possibly explosive situation with the unrest and instability in Pakistan. We have made some progress in regards to the North Korean nuclear program, but must make a great deal more. Iran, despite a disingenuous NIE from the CIA contending otherwise, continues its advance towards possession of a nuclear arsenal, a development which could have devastatingly destabilizing effects in the Middle East. China continues to grow as a global power and contender with American hegemony, while Russia continues its slow march away from democracy and back towards a Soviet-style state.

In other words, foreign affairs matter a great deal this time around, and therefore so must experience in foreign affairs and issues of national security. This is not 1992, and what was not a disqualifier then is, or at least ought to be this time around.

Specific to Iraq, Sen. Obama demonstrated marked misunderstanding of the situation and dynamics in Iraq later in that same interview. As a result of the surge, said the Senator, all America has done is essentially come "full circle. We had intolerable levels of violence and a dysfunctional government back in 2006; we saw a huge spike in violence, to horrific levels. The surge comes in and now we're back to where we were in 2006, with intolerable levels of violence and a dysfunctional Iraqi government."

That is simply not the case. Prior to and after the sharp spike in violence of which Sen. Obama spoke of, Iraq’s Sunni community was not only not participating in the political process, but they were actively supporting and participating in al-Qaeda’s and the insurgency’s war against that political process.

One year later this is not the case any longer. Because of the extra security and commitment provided by our surge in Iraq, Iraq’s Sunnis have had been given the cover to turn against al-Qaeda and re-enter Iraqi politics. Sunnis have indeed used this cover, comprehensively rejecting al-Qaeda and fighting against it with the cooperation, assistance, and support of the American military. They are participating in the defense and security of their own villages and towns, signing up for the local police forces and the Iraqi armed forces in astonishing numbers. There is also an irrefutable development and growth in Sunni political organization and participation.

The central government in Baghdad has indeed not passed oil-sharing, de-Baathification, and other pieces of legislation we in America would like to see it enact. But this does not render the surge a failure, nor should the success of the surge ultimately be determined based on whether or not the Iraqi government passes certain pieces of legislation. When it eventually comes time for history to render its verdict the surge will have succeeded if a viable representative government is ultimately in place where the country has a legal process and forum in which national issues, questions, and debates are legitimately decided and resolved. It will not be what the Iraqis agree to and enact that will matter, it will be if they have a legal and peaceful process in place through which to deal with matters. America will have succeeded if Iraq settles its issues through politics and not the barrel of a gun.

We have made progress towards this, and this is what delineates December ‘07 from December ‘06. Sen. Obama’s inability to recognize this demonstrates a complete misunderstanding of the situation in Iraq.

Open Letter to Republican and General Voters

Friends and Fellow Americans:

For most of this campaign cycle I have supported the presidential candidacy of Mayor Rudy Guiliani. Recently I have seen fit to forge a different course. Accordingly, I endorse Senator John McCain for the Republican nomination for President of the United States.

*****

Circumstances must always control the mind of the conscientious and reasoned voter. Two circumstances weigh upon me at this time, and ought to weigh upon every Republican voter.

The first is our party’s political straits. We are in rough shape. The President and standard-bearer of our party has poor approval ratings. We lost both houses of Congress last year, and face the prospect of further losses next year. In every poll voters prefer the generic Democrat over the Republican, for both Congress and the White House. Democrats now have a majority of the state governor’s mansions and a plurality of state legislatures as well.

In my admittedly brief political consciousness the Republican brand has never been mired in such public unpopularity, and lest we nominate the absolute right candidate next year Democrats will control both political branches of the federal government and the ability to shape the third, the judicial branch, in their favor. As Rich Lowry and Ramesh Ponnoru pointed out recently in a compelling article in National Review, the expansion of government that would surely ensue would "make voters less likely to turn toward conservatism in the future."

My friends, we cannot nominate the generic Republican. We need a nominee who transcends party, who can reach the American people on his own terms.

Senator McCain would be that nominee. Having run for President eight years ago and having been one of the most prominent elected officials in the federal government since, he has been introduced to the American people and has earned their admiration and respect. His record of nearly forty years of service to the United States, beginning with his heroic service as a pilot and POW in Vietnam, also needs no preface nor explanation.

As our party endeavors to recover from the stain of corruption and our lost standing as the party of competence, Senator McCain would be a standard-bearer with an integrity of granite. His career in the Senate has been marked by the pursuit of honest and accountable government (though this has admittedly led him to excess on occasion, see the McCain-Feingold Act).

Herein is part of the impetus for my departure from Mayor Giuliani. Rumors and reports of his ethical lapses as Mayor of New York City would only be a distraction in the general election, despite his other advantages, and this would be the last thing the party needs in the wake of Tom Delay, Duke Cunningham, Bob Ney et al.1

This would not be the case with Senator McCain. He represents the best of the party regarding ethics, as well as our squandered instincts of fiscal discipline. As the Republican nominee Americans would see a man whom they could trust to be a good and dutiful steward of their hard-earned tax dollars.

What’s more, Senator McCain’s honesty and ethics would shine all the more brighter in comparison to Senator Clinton and her and her husband’s long list of ethical lapses, should she in fact be the Democrats’ nominee.

*****

That second of the two circumstances I spoke of earlier is Iraq and the broader war on terror. Presidential elections are obviously always important, but especially so when the nation is at war.

We are at war; at war with an insidious enemy which follows none of the conventional rules of war and basic standards of human decency. They kill blindly and indiscriminately, and in their twisted worship of death feel no hesitation in perishing themselves in the process.

In our history we have faced our share of threats, but none greater than that presented by these barbarians. To defeat them will require sustained national resolve on the part of the people, and commanders-in-chief with the personal fortitude and good wisdom and judgment to execute this war effectively.

Winning this war first requires us to win in Iraq, the place which our enemies themselves have declared its central front. From the very beginning of our involvement in Iraq Senator McCain has been a steadfast supporter of our military effort there and has recognized the vital strategic importance victory represents.

In this vain he had been a major critic of President Bush’s and then-Secretary Rumsfeld’s original counterinsurgency strategy—which was failing—and was the first elected official within the federal government to propose and support the current counterinsurgent strategy which has led to the recent dramatically positive improvements on the ground. These views have not always been popular, but they have always been right.

In this time and at this place in history such fortitude and good judgment is exactly what we need in our next President. More than any other candidate whose name is before the American people, Senator McCain can be expected and trusted to do right by our involvement in Iraq—to achieve victory there and to get us out when that has been achieved—and to do right by our prosecution of the broader war against extremist Islam. He is the man who is able to stand up to Democrats in Congress and those running for president whose policy is get out now, disastrous consequences of retreat and defeat be damned.

My fellow Republicans, I know Senator McCain is not a perfect conservative, and he has indeed taken a few positions with which you and I have disagreed. But there is no perfect conservative or Republican, and we certainly do not have the luxury of holding out for one now. Let us not fall into the temptation to compare every poor soul who seeks our party’s nomination to the late President Reagan, himself not a perfect conservative, and then reject them when they inevitably fail. President Reagan was a man whose memory should inspire us, not one whose ghost haunts us in our futile and self-defeating attempt to find him reincarnate in our next nominee.

Senator McCain is a strong, principled conservative and he has the best chance of any of the Republicans who would be our nominee of insuring that conservatism will have a home in the White House for the next four years.

*****

Circumstances always demand that certain figures rise to the occasion. This has especially been the case with America. At our founding we had George Washington. At our time of disunion we had Abraham Lincoln. At the time of world war we had Franklin Roosevelt. And in the face of an evil empire we had Ronald Reagan.

On this occasion—at this pivotal place in the history of our blessed republic—the occasion and the arena calls for Senator McCain. I have no doubt that he is the man for the moment.

I urge my fellow Republicans and my fellow Americans to join me in supporting Senator McCain for President of the United States.

Geoff Smock,
Pacific Lutheran University

1. Of the two—Senator McCain and Mayor Giuliani, both of whom I believe represent the party’s best chance of winning in the general—Senator McCain also stands the better chance of appealing to moderate Republicans, independents, and centrist Democrats while maintaining the pro-life portion of the Republican coalition within the party. I do not know if Mayor Giuliani could.

The 2007 Supreme Court Term

The 2007 Supreme Court term began last month within an interesting and entirely unfamiliar context and atmosphere. There is widespread despair within the American left that after decades of movement to the left—movement sometimes distinct and rapid, other times moderate and slow—the Court has veered suddenly and entirely to the right. If we were to take them at their own word, the Court has begun an assault on women’s reproductive rights,1 has eroded the First Amendment’s guarantee of freedom of speech,2 and has even overturned Brown v. Board of Education.3

This goes much (much, much, much) too far.

To be sure, in the 2006 term there was a noticeable and not insignificant change in the Court’s jurisprudence, generally and within several different areas of the law. In Gonzales v. Carhart the Court upheld a restriction on the practice of abortion for the first time in its history. In Morse v. Frederick it ruled that public school officials can prohibit students from displaying (what can be interpreted as) pro-drug use messages and that protective standards set in Tinker v. Des Moines over thirty years ago would not always be applied. And in what finally sent the left into full hyperventilation, the Court found two racial balancing schemes used in Seattle and Louisville public high schools to be violative of the Fourteenth Amendment’s Equal Protection Clause in Parents Involved in Community Schools v. Seattle School District No. 1.

These decisions were certainly not of the kind that Court watchers have grown accustomed to, but they hardly constituted a sharp swerve to the right by the Court. Carhart II fit entirely within the parameters set forth in the plurality opinion in Planned Parenthood v. Casey, not a conservative or constitutionalist decision by any means. Parents Involved fit similarly within the Court’s previous decision in Grutter, also not a Conservative or Constitutionalist decision. And in Morse the Court only mildly altered (or tinkered with) Tinker.

Jonathan Alder correctly wrote after the conclusion of the term that the balance of "Warren and Burger Court precedents that most stoke conservative ire remain on the books."4 The Court has not become what the left says it has. Far from taking a sharp turn to the right, it at most retracted a bit from its generational drift to the left.

And yet it might not have even done that. From all indications, the 2006 term may have been no more than a blip, a puny little anomaly on the chart.

In every single one of the cases from last term that have so rankled liberals, the Court was split five to four and Justice Anthony Kennedy was the deciding vote. And in most of those split decisions he did indeed side with what is considered to be the conservative block on the Court.

But was this because Justice Kennedy is reliably and consistently conservative himself? From all indications, no. Justice Kennedy is "conservative" on some legal issues and not on others. It so happened that those areas of law in which he does tend to have a conservative jurisprudence were often covered in cases on the ‘06 docket.

Quoting Mr. Adler again, "The Court appeared more conservative last term, in part, because of the particular mix of cases on the docket. This term presents a decidedly different mix, however, and will show that the Court remains significantly less conservative than some would like, and others fear."5

A brand new docket with new cases and new areas of law addressed may very well produce a different looking Court entirely. A few of those cases will touch upon detention of enemy combatants and the death penalty, both areas which Justice Kennedy has tended to be liberal on.

What’s more, decisions rendered by the Court last term that were ostensibly conservative may in fact not be. Retired Circuit Court Judge Robert Bork opined that some of the decisions handed down by the Court from last term "at least occasion for speculation that Roberts and Alito may be willing to make only minor adjustments to liberal doctrines that have no basis in the Constitution."6 In such a scenario all the left would have to fear is that the days of the Court’s advance to the left—of obfuscating, manipulating, and basely disregarding the text of the Constitution—are over, with the Roberts Court largely declining to overrule the precedential products of that advance however.

Regardless, the point of all of this is that no one has any place to make a conclusion on what the Roberts Court is right now and what it will become, certainly not the kind made by Jeffrey Toobin that the Court is now "dramatically more conservative" than previous Courts and by Linda Greenhouse that it is now the "Court that conservatives had long yearned for and that liberals feared."7

The Roberts Court, with Justice Alito in place of the retired Justice O’Connor, has only one full term’s slate of cases on record to examine, not nearly a large enough sample from which to draw any definitive conclusions. There are many important areas of law heretofore untouched by this Court, and at most any one area of law has been addressed only once or twice. It will take at least this upcoming term, and probably a few more terms, before we can draw any major conclusions. Accordingly, the left ought to at least wait until next July before it mournfully engages in any more hymns of Armageddon.

1. Memorandum from NARAL Pro-Choice America Legal and Policy Research Department on Supreme Court Decision in Federal Abortion Ban Cases to Interested Parties (April 19, 2007). http://www.prochoiceamerica.org/assets/files/federal-abortion-ban-legal-memo.pdf
2. Editorial, (2007, June 26). Three Bad Rulings. The New York Times, Retrieved November 4, 2007, from http://www.nytimes.com/2007/06/26/opinion/26tue1.html?n=Top/Opinion/Editorials%20and%20Op-Ed/Editorials
3. Editorial, (2007, June 29). Resegregation Now. The New York Times, Retrieved November 4, 2007, from http://www.nytimes.com/2007/06/29/opinion/29fri1.html?n=Top/Opinion/Editorials%20and%20Op-Ed/Editorials
4. Adler, Jonathan H. (2007, July 5). How Conservative is this Court?. National Review Online, Retrieved November 11, 2007, from http://article.nationalreview.com/?q=Y2Y3NjNkM2ZkYTcxNzQwYTBhZWZkNzEyZGYyMWExMjE=
5. Adler, Jonathan H. (2007, October 1). First Monday. National Review Online, Retrieved November 11, 2007, from http://article.nationalreview.com/?q=NTM3ZmRmZmM2ZWQ5NzFlZTE3YWEyMTk2NzAyOGRjYTg=
6. Bork, Robert H. (2007, July 30). 4+1. National Review, LIX(13), 18-20.
7. Greenhouse, Linda (2007, July 1). In Steps Big and Small, Supreme Court Moved Right. The New York Times, Retrieved November 4, 2007, from http://www.nytimes.com/2007/07/01/washington/01scotus.html?_r=2&hp&oref=slogin&oref=slogin

Reading Response, Tourism & Globalization, INTC 251 (Cultural Globalization)

As I read David Nicholson-Lord’s article "The Politics of Travel", it reminded me of some of the points made by Jonah Goldberg in a little piece he wrote in a recent issue of National Review. In that piece Mr. Goldberg opined that there was an inherent contradiction and tinges of hypocrisy within some of our (western) culture’s conceptions of tourism. We value cosmopolitanism and the sophistication and enlightenment that comes from having visited and absorbed multiple cultures, yet we believe that these foreign cultures should be left in their pristine, traditional form—for the benefit of our enjoyment.

This is an issue we have discussed on occasion in class and many have expressed and sympathized with the concern that the process of globalization is contaminating and eliminating traditional cultures throughout the world.

But in holding this opinion aren’t we applying a different standard to ourselves than we do to the rest of the world’s peoples and societies? We welcome and relish the opportunity to amalgamate with other cultures, but try to prevent the same thing from happening to those cultures. As Mr. Goldberg writes, "The man who wants to see Vietnam stay Vietnamese is enlightened or exotic, but never provincial. The man who wants America to stay American is a boob."1

I do find hypocrisy in this sentiment.


1. Goldberg, Jonah (2007, September 10). Global Village People. National Review, LIX(16), 8.

Letter to the Editor, PLU MAST, for the PLU GOP

In an Op-Ed in the October 5, 2007 edition of the Mast, Ethan Jennings made several assertions regarding Iran that we feel we must respectfully but wholeheartedly respond to and correct.

The picture that Mr. Jennings paints of Iran does not resemble reality. He writes that "Iran is not stupendous" in the category of human rights, which suffice to say is a deep and frankly startling understatement. There is no democracy in Iran whatsoever, only tainted and fixed elections and a despotic class of mullahs which have ruled the country for over two-decades now.

Iranian President Ahmadinejad’s anti-semitism runs beyond simple holocaust denial as well, extending into repeated calls for the nation of Israel to be destroyed and wiped off the map entirely. He has also declared that there are no homosexuals within Iran, which would be true if the Iranian policy of persecution and execution were carried out in full.

Mr. Jennings also grossly distorts fact in asserting a similarity between Iran’s persistent support for terror and previous actions by the United States. Iran actively supplies and supports terror within Iraq, and in many cases it is Iranian weapons which are responsible for the deaths of American soldiers and Iraqi civilians in that country. Iran is also the patron of Hezbollah, a large and destabilizing terrorist organization within the Middle East.

Iranian support for terror is an institutionalized state policy, and to compare that to American support of anti-communist and anti-Soviet elements in the Cold War—as Mr. Jennings does—is completely misguided.

Finally, the reason that the United States does not object to countries such as France, Britain, and India possessing nuclear weapons is because those countries and ourselves are legitimate democracies accountable to their people. Iran clearly does not meet that criterion. It is and ought to be the United States’ and the civilized world’s policy to prevent a terror-sponsoring nation with hegemonic designs within the Middle East from having nuclear weapons. Does anyone really think it is acceptable to allow a country who has professed a desire to destroy Israel the means to do exactly that?

Iran is no ally of the United States or of free and peaceful peoples, and any truly "holistic picture of the situation" will demonstrate as much.

Geoff Smock
President, PLU GOP

The Death of Chief Illiniwek

Last year the University of Illinois finally capitulated to pressure from liberal activists and state Democratic politicians—the traditional officers of the Political Correctness police force—to sack the school mascot Chief Illiniwek, whose existence and traditional dance during halftime of UI football games was deemed by critics to be insulting to Native Americans. The NCAA even went so far as to label the Chief to be one of the nation’s "hostile and abusive racial/ethnic national origin mascots."

This makes no sense and is indeed counter-intuitive and basely illogical. A simple question and its answer exposes this as truth: Why does a team or school adopt a mascot of any kind? To identify themselves with the region they are from and/or to inspire their members and supporters. No one adopts a nickname and mascot for themselves that is insulting or demeaning of another group or entity, for to identify themselves by an insulting and demeaning nickname is to insult and demean themselves. As UI alumnus Robert Novak points out, "colleges all over America adopted Indian nicknames, symbols, and mascots for their football teams--not to mock the country's defeated native population but to inspire warrior-like fierceness on the gridiron."

Beyond just this simple exercise in flat illogic is the hypocrisy and shallowness within the movement to remove Indian nicknames and mascots from schools and sports teams. Why is the nickname "Indians", "Braves", or "Redskins" culturally and ethnically insulting while a nickname such as the "Fighting Irish", complete with a pugnacious and diminutive leprechaun as its mascot, not insulting to Irish-Americans? What’s the difference?

There isn’t one.

Political Correctness and its tyrannical police force have run amok in this country, attempting to stifle, as Mr. Novak eloquently writes, the human spirit with its "dead hand."

Those P.C. police have indeed won and the Chief is dead, but the political correctness which killed him ought to share his fate.

D.C. Congressional Representation

Apparently the Senate will try to culminate Congress’ months-long effort to secure voting rights for the District of Columbia tomorrow by voting on a bill that would increase the size of the House of Representatives by two seats. The District would get one of the seats and, in a maneuver to placate Republicans opposed to adding an extra reliably Democratic seat, the other would be given to Utah, a seat which would presumably be safely Republican.

The bill appears to be very democratic, fair, and—politically—a complete wash for both parties in the ever-important Congressional balance of power equation.

Constitutionally however, there is no redeeming or validating quality within this legislation.

Article I, §2 of the U.S. Constitution states in clear and transparent terms that "The House...shall be composed of Members chosen...by the People of the several States"(Emphasis Added). The District is not a state (the reason for it being the seat of the national government) and thus its residents are not only not entitled to Congressional representation, but they are Constitutionally proscribed from enjoying it.

There are a few good options to rectify this, such as Constitutional Amendment or retrocession. This bill is not one. It is unconstitutional on its face and thus invalid. Hopefully a minimum of forty-one senators recognize this, or at least refuse to look the other way in the face of such a self-evident fact.

Abortion & Federalism-POLS 374 Final Research Paper

Legal Issue: Are the individual states Constitutionally prohibited from restricting a woman’s access to abortion by the Due Process Clause of the Fourteenth Amendment, as the Court contended in Roe v. Wade and subsequent cases, or is abortion an issue which is Constitutionally a sovereign province of the states?

Facts/History: In his opinion for the Court in the case of Roe v. Wade, Justice Harry Blackmun wrote that any "state criminal abortion statute...that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment." Roe v. Wade, 410 U.S. 113 (1973) [Italics in Original]. That decision was upheld nineteen years later in Planned Parenthood of Southeastern Pennsylvania v. Casey. There, in the plurality opinion of Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter, the Court held that "the essential holding of Roe v. Wade should be retained and once again reaffirmed," recognizing "the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). That precedent remains the law of the land today.

Analysis: My cursory examination of the Constitution has demonstrated that the Court’s assertion in Roe—that state statutes proscribing abortion pre-viability are "violative of the Due Process Clause of the Fourteenth Amendment." Roe v. Wade, 410 U.S. 113 (1973)—contradicts the text, meaning, and history of the Due Process Clause of the Fourteenth Amendment and the Constitution in general. As Justice Clarence Thomas has written, "the Court’s abortion jurisprudence, including Casey and Roe v. Wade [citation omitted], has no basis in the Constitution." Gonzales v. Carhart, No.05-380, Slip op. at 47 (2007)(THOMAS, J., concurring).

The Constitution creates a national government of limited and enumerated powers. Art. I, §8 of the Constitution enumerates those powers of the Congress and the national government, including a power to "borrow money on the credit of the United States;"U.S. Const. art. I, §8, cl. 2, to "regulate Commerce...among the several States;" U.S. Const. art. I, §8, cl.3, to "constitute Tribunals inferior to the supreme Court;" U.S. Const. art. I, §8, cl. 9, to "provide and maintain a Navy;" U.S. Const. art. I, §8, cl. 13, etc. Nowhere in Art. I, §8 is the power to regulate abortion granted. Abortion is not addressed nor contemplated by the Constitution.

In a system of enumerated powers, this is dispositive. With a governmental system so constituted, the government cannot exercise powers beyond those given to it or which are inferred from those powers. Such is only logical. As Chief Justice John Marshall wrote in his opinion for the Court in Marbury v. Madison, "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Marbury v. Madison, I Cr. (5 U.S.) 137 (1803).

If the power is not enumerated as belonging to the national government in the Constitution, then the national government cannot exercise it, and the Supreme Court certainly cannot prevent the states from exercising it. James Madison wrote in the Federalist that the "powers delegated by the...Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." He continues: "The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 46 (James Madison).

The Constitution codifies this sentiment in the Tenth Amendment. It states that, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Quoting Akhil Reed Amar, Professor of Law at Yale University, the Tenth Amendment reaffirmed "that the central government would wield only limited powers." Akhil Reed Amar, America’s Constitution: A Biography 327 (2005). Attorney and former head of the Justice Department’s Office of Legal Counsel Charles Cooper echoes this sentiment, observing that the Tenth Amendment serves to stifle the supposition that there "were powers in the national government that were not granted by the original document." Charles Cooper, Reserved Powers of the States, in The Heritage Guide to the Constitution 371 (Edwin Meese, ed., 2005).

Former circuit court judge and Supreme Court nominee Robert Bork has written that since "the beginning of the Republic until [Roe], the moral question of what abortion should be lawful had been left entirely to the state legislatures." Robert H. Bork, The Tempting of America 112 (1990). As Justice Blackmun himself documented in his opinion in Roe, there is a history of states regulating abortion free of federal interference as far back as 1821. Further, he even makes a surprising assertion which entirely contradicts the Court’s claim that a state abortion statute criminalizing abortion prior to viability with only an exception for the life of the mother violates the Due Process Clause. He states that in "1840...eight American States had statutes dealing with abortion. It was not until after the War Between the States that legislation began generally to replace the common law." Roe v. Wade, 410 U.S. 113 (1973). In other words, states started to generally enact their own regulations and restrictions regarding abortion within the same time period that the Fourteenth Amendment and its Due Process Clause were ratified in 1868.

This, if nothing else, refutes Justice Blackmun’s and the Court’s claim that state laws restricting abortion violate the Fourteenth Amendment. If the Due Process Clause of the Fourteenth Amendment had been understood to proscribe state restriction of abortion, as claimed by the Roe Court, there would not have been the proliferation of such laws being passed in that exact same time period it was ratified.

It is readily apparent that the Court’s ruling in Roe has no basis in the Constitution, and is instead "an exercise of raw judicial power," as Justice Byron White described the Court’s opinion in his dissent in Roe. Roe v. Wade, 410 U.S. 113 (1973) (WHITE, J., dissenting).

There is wide, across the spectrum consensus on this point, among liberals and conservatives, pro-choice and pro-life. Justice Antonin Scalia, considered one, if not the most conservative justices currently on the Court, has written that Roe is mistaken because "(1) the Constitution says absolutely nothing about [abortion], and (2) the long-standing traditions of American society have permitted it to be legally proscribed." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (SCALIA, J., concurring in the judgment in part and dissenting in part).

From the other side, Harvard Professor of Law Laurence Tribe has written that, "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Laurence Tribe, The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 7 (1973). Or, as then Yale Professor of Law John Hart Ely wrote, "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure." John Hart Ely, The Wages of Crying Wolf, 82 Yale L.J. 920, 935-36 (1973). Echoing Judge Bork once again, "the decision [in Roe] was the assumption of illegitimate judicial power and a usurpation of the democratic authority of the American people." Robert H. Bork, The Tempting of America 116 (1990).

An examination of the private papers of a few of the justices of the Roe majority only further confirms the assertion that the Court had not reached a constitutional decision, but had crafted a novel, illegitimate piece of legislation. In a Court memo, Justice Blackmun, the author of the decision in Roe, conceded that he was constructing "arbitrary" lines defining when a woman was entitled to an abortion and when the state had an interest in restricting that right. Justice Potter Stewart, in a subsequent memo, conceded the construction of these lines was an activity "legislative" in nature. As Washington Post reporter Bob Woodward of Watergate fame writes, "[Justice] Blackmun tried hard to find a clear legal argument. He searched through the common law, the precedents, medical books and the positions of various medical organizations looking for guidance. There were no clear legal or scientific guideposts, so he drafted his opinion more on the basis of logic, medical knowledge, perceived social necessity and the assembled convictions of his colleagues." Bob Woodward, The Abortion Papers, Wash. Post, Jan. 22, 1989, at d. 01.

Essentially, Justice Blackmun found justification for the Court’s ruling in many places, the Constitution itself not being one of them. In an appalling instance of honesty, the Dean of the University of Chicago Law School Geoffrey Stone, who served as a law clerk to Justice William J. Brennan Jr. at the time Roe was decided, admitted that, "Everyone in the Supreme Court, all the justices, all the law clerks knew it was ‘legislative’ or ‘arbitrary.’" Bob Woodward, The Abortion Papers, Wash. Post, Jan. 22, 1989, at d. 01. The Court’s decision in Roe, privately admitted in these internal memos, was based upon nothing more than the personal predilections of the justices themselves.

Unsurprisingly, those who do mount a defense of Roe do not seem to do so on the merits of the decision, but on the simple grounds of stare decisis. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the plurality simply held that upon "principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed." The plurality then goes on to explain that overturning Roe "would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

But this logic is sophistic. As the plurality acknowledges, the Court has overruled its own precedent many times before, in cases such West Coast Hotel Co. V. Parrish, 300 U.S. 379 (1937) (overruling Lochner v. New York, 198 U.S. 45 [1905] and Adkins v. Children’s Hospital of D.C., 261 U.S. 525 [1923]); Brown v. Board of Education, 347 U.S. 483 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 [1896]); and more recently Lawrence v. Texas, 539 U.S. 558 (2003) (overruling Bowers v. Hardwick, 478 U.S. 186 [1986]), just to name a few.

When the Court has found a previous case to be wrongly decided it has not been afraid to say so and overrule it. In Casey, the plurality does not address the merits, or lack thereof, of the Court’s decision in Roe, instead simply declaring that its precedent should be left intact on that basis alone, regardless of whether it was or was not correctly decided. As Justice Scalia wrote in dissent, "The authors of the joint opinion...do not squarely contend that Roe v. Wade was a correct application of ‘reasoned judgment’; merely that it must be followed, because of stare decisis." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1993)(SCALIA, J., concurring in the judgment in part and dissenting in part) [Italics in Original].

Beyond that, the plurality’s fear of a loss of legitimacy for the Court if it overruled Roe is completely off base. The more logical assertion seems to be that the Court’s rigid adherence to a precedent created in a case that nearly everyone recognizes as wrongly decided damages the Court’s legitimacy and its commitment to the rule of law. Quoting Justice Scalia’s Casey dissent once more, "Surely, if ‘[t]he Court’s power lies...in its legitimacy, a product of substance and perception,’ the ‘substance’ part of the equation demands that plain error be acknowledged and eliminated." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1993) (SCALIA, J., concurring in the judgment in part and dissenting in part).

Roe’s transgressions extend beyond issues of Constitutional law however. They are found also in the deleterious effects it has had on the American political process and the federal judiciary itself. The Court’s decision in Roe has produced an unyielding agitation within the political process in America and a poisoned sense of partisanship. This is because federalism—the principle that the federal government exercises some powers and the states exercise the rest—was taken out of the abortion equation. This is unfortunate because the framers had a logic behind this system. As David Gelernter has pointed out, "federalism accommodates profound national disagreement by allowing each state to tailor the local climate to suit itself. Federalism is an escape valve that lets polarizing bitterness blow off into the stratosphere." David Gelernter, Back to Federalism: The Proper Remedy for Polarization, The Weekly Standard, April 10, 2006, at 22. Prior to Roe, the disparate peoples of conservative states like Idaho or South Dakota did not have to accept the predilections of the peoples of liberal states like Vermont and Rhode Island towards abortion and vice-versa.

Not so anymore, and unsurprisingly there is a large degree of national agitation over the issue when there should not be. As William Kristol points out, "Abortion is today the bloody crossroads of American politics." William Kristol, On the Future of Conservatism, Commentary, February 1997, at 14. John Micklethwait and Adrian Woolridge point out that abortion has been legalized in many other countries as well but in none is it as controversial as it is here. The reason is that "European countries liberalized abortion through legislation and, occasionally, referenda. This gave legalization the legitimacy of majority support, and allowed countries to hedge the practice with all sorts of qualifications. In America, the Supreme Court...decided that reproductive rights are included in a fundamental right to privacy which, rather like freedom of speech and freedom of religion, is guaranteed by the Constitution". John Micklethwait & Andrew Woolridge, Right Nation: Conservative Power in America 309 (2004).

As many commentators point out, Roe has had a negative effect on the pro-choice movement and cause too. Current Associate Justice Ruth Bader Ginsburg has opined that Roe might have discouraged, not empowered, pro-choice legislative developments within the United States. "The sweep and detail of the opinion stimulated the mobilization of a pro-life movement and an attendant reaction in Congress and state legislatures." Ruth Bader Ginsburg, Some Thoughts on Autonomy And Equality in Relation to Roe v. Wade, 63 N.C.L. Rev. 375, 381-82 (1985). Author and legal commentator Jeffrey Rosen has echoed that sentiment. As a result of Roe, "the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it. And the pro-life minority can criticize the legal weakness of the decision without having to acknowledge its political weakness in the country as a whole." Jeffrey Rosen, Worst Choice: Why We’d Be Better Off Without Roe, The New Republic, Feb. 24, 2003, at 15.

The greatest victim of Roe has been the federal judiciary itself. As Mr. Gelernter pointed out, "the Court never used to be important as it is today...Previous generations rarely saw bitter, polarizing fights over Court nominations, not merely because the nation was less polarized; because the Court itself was less important." David Gelernter, Back to Federalism: The Proper Remedy for Polarization, The Weekly Standard, April 10, 2006, at 22, 24. Quoting Justice Scalia’s dissent in Casey one last time, "Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court, in particular, ever since." He concludes ominously in declaring that "by foreclosing all democratic outlet for the deep passions this issue arouses...the Court merely prolongs and intensifies the anguish." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1993)(SCALIA, J., concurring in the judgment in part and dissenting in part).

Conclusion: Roe v. Wade was wrongly decided. The Constitution does not mention nor address abortion, and thus it is an issue belonging to the States. Roe has also had a deleterious effect on the national political process and the federal judiciary. It ought to be overturned.

Thoughts on Immigration Reform

Our immigration problem is, generally, of two prongs: (I) an unsecured border and a flow of illegal immigration and (II) millions of illegal immigrants currently in residence in the United States. Both problems demand a solution, but the horse must come before the cart.

Over the decades various reforms have been enacted and all have failed because the border was never secure and the problem has kept rearing its ugly head. So that the next reform does not meet the same fate it is a prerequisite that we solve the first problem first. The federal government must secure the border, period. Mark Krikorian has offered many methods that would make this possible. Build the fence approved by Congress last year, verify the legality of immigrant workers, punish those who employ illegals, train local officers for border security, prosecute and jail those who enter illegally, make legal status a labor standard, etc.1

It is illogical, pointless, and backwards to try to deal with standing water when the flow is still spewing from the spigot. Stop the flow first. Once this has been accomplished—once the flow of illegal immigration has been stopped—then our second problem—what to do with those who have already illegally entered the country and taken residence—can be addressed.2

Beyond the simple and unavoidable practicality and common sense of this approach, I believe it is the only conceivable one through which any enactment of reform could be politically possible, as the rejection of comprehensive reform last year and this year have demonstrated.(I mean this from a conservative standpoint at least, as I cannot really judge what effect this first things approach would have in alleviating the labor objections from the left to comprehensive reform.)

I could very well be misreading my conservative friends, but what I think their objection to is not so much a path to citizenship—or "amnesty", if you will—per se, but that the reform recently proposed and rejected was the same bill of goods that they’ve been sold before. They’ve agreed to an amnesty-for-border security compromise in the past, most recently in 1986, only to see the flow of illegal immigration continue, if not increase, making it little wonder that so few now seem willing to accept another compromise, especially when there is every likelihood that, in keeping with history, another reform will be necessary in twenty years. As the editors of National Review have written, "Until we see that enforcement taking place—and see the government standing up to the interests that will squeal when it does—we should not contemplate providing an amnesty."3

If any reform is to be enacted, it must be done differently this time so that it will be a permanent reform and not just a band-aid. Take care of the flow first and then I do believe that conservatives will be at the very least open to a path to citizenship. As Charles Krauthammer has written, an amnesty would be acceptable if it were the last.("If these are indeed the last illegal immigrants to come in, let us generously and humanely take them out of the shadows.")4 So too would most conservatives, I think.

1. Krikorian, Mark (2007, July 9). 'Give Me The Tools'. National Review, LIX(12), 20-24.
2. Though my views on immigration have evolved since the issue first genuinely erupted onto the public consciousness about a year ago, I still maintain as I always have that the best way to deal with the millions of illegal immigrants currently in residence in the United States—the standing water—is to enact a path to citizenship, one which compels illegals to pay all back taxes and to get in line behind those who have already begun the process of legal migration.
3. Editorial, (2007, July 9). Fool Me Twice. National Review, LIX(12), 16.
4. Krauthammer, Charles (2007, May 25). Amnesty Acceptable if it's the Last. The Washington Post, Retrieved July 14, 2007, from http://www.realclearpolitics.com/articles/2007/05/amnesty_acceptable_if_its_the.html

The Libby Commutation

Those critical of the President’s commutation of Mr. Scooter Libby’s sentence the day before last declaim it as politically motivated or, according to Sen. Obama, an instance of "ideology above the law"1, criticism that could only be valid were it describing the investigation, prosecution, and sentencing of Mr. Libby and these dissidents’ own support and conception of it.2 A simple examination of the objective facts of this strange, pathetic affair can lead me to no other conclusion.

Prior to the appointment of Patrick Fitzgerald as special prosecutor in the Plame leak investigation, the Justice Department was aware of the source of that leak (then Deputy Secretary of State Richard Armitage) and that no violation of the Intelligence Identities Protection Act had occurred. Nevertheless, Mr. Fitzgerald pursued his investigation for months, at the conclusion of which an indictment was filed charging Mr. Libby with perjury before a federal grand jury and obstruction of justice, crimes committed during the course of an investigation whose purpose had been realized before it had begun—determination of the source of the leak and if it constituted an illegality—and in which no underlying crime had been committed.

Perhaps I’m missing something, but a criminal investigation commissioned and executed following the determination of the perpetrator’s identity and the fact that no actual crime had been committed has about as much purpose as calling in the paramedics after the death certificate has been signed. Since the purpose of the investigation had been realized before it had begun, the only purpose Mr. Fitzgerald’s inquiry seems to have taken on is a fishing expedition to catch someone within the administration somewhere in an inconsistency so they could be charged, something he succeeded in.

But leaving to the side the context, one has to question once again the legal validity of Mr. Libby’s conviction on its face. As the editors at National Review point out, the perjury he was alleged to have committed was based on nothing more than "discrepancies between Libby’s grand jury testimony and that of a few journalists who contradicted him...a reasonable person listening to the faulty memories of the witnesses who testified could have concluded that Libby simply had things mixed up."3

The probability of this is only increased by the fact that former White House Press Secretary Ari Fleischer testified under oath during the trial that he had not told a reporter for the Washington Post about Mrs. Plame while the reporter testified he had. According to common sense one or the both of them simply has a faulty memory about a conversation which happened in the past. According to Mr. Fitzgerald’s logic however, one of them committed perjury.

The bankruptcy of this is evident. As Charles Krauthammer has written, at the time of the affair Mr. Libby "was famously multitasking a large number of national-security and domestic issues, receiving hundreds of pieces of information every day from dozens of sources. Yet special prosecutor Patrick Fitzgerald chose to make Libby's misstatements about the timing of the receipt of one piece of information — Mrs. Wilson's identity — the great white whale of his multimillion-dollar prosecutorial juggernaut."4 Prosecutions for jay-walking across an empty street have made more sense.

Nevertheless the jury convicted, a determination I may disagree with but can respect (they could not control the fact that an absurd case was placed before them).

What does extend beyond reason and respect is Mr. Fitzgerald’s request following that conviction that Mr. Libby be sentenced as if he had committed the crime of illegally revealing the identity of an undercover intelligence agent. Say what you will, but I am of the belief that, if one has committed a crime in the opinion of a jury of his peers he should be punished for only that crime, and that if a prosecutor wants to punish him for a certain crime he ought to charge him with it and go through the trouble of prosecuting him for it. That the judge eagerly granted Mr. Fitzgerald’s wish only compounds this affront on justice, which was nothing more than a legal bait-and-switch (convict him of one crime, then punish him as if he had committed another).

From the beginning, this affair has been little more than politics waged in the legal arena.5 It was and always has been a vehicle through which, quoting Robert Novak, critics have sought to criminalize "Bush’s military intervention" in Iraq. Senate Majority Leader Harry Reid admitted as much when he described Mr. Libby as part of "White House efforts to manipulate intelligence and silence critics of the Iraq War."6 The circumstances of the case do not support the extravagant implications Sen. Reid sees in it.

To commute the sentence of Mr. Libby was the very least the President was compelled to do. Mr. Libby should not have had to go to jail for two years because the Washington establishment seeks to punish the Bush Administration for the Iraq War. This is nothing more than the criminalization of politics, where the resources of justice are used to settle political disputes.

Explaining his pardon of the Iran Contra indictees nearly fifteen years ago, President George H.W. Bush denounced this phenomenon, saying that differences in policy "should be addressed in the political arena, without the Damocles sword of criminality hanging over the heads of some of the combatants. The proper target is the president, not his subordinates; the proper forum is the voting booth, not the courtroom."

The wisdom and benefits of this principle is evident, and under it this long, sad affair is condemned, as well as those who perpetrated and supported it. If any crime was committed by Mr. Libby, then it was not nearly as obnoxious as the insult on blind justice which was perpetrated by Patrick Fitzgerald et al.

1. York, Byron (2007, July 3). Why Bush Saved Libby. National Review Online, Retrieved July 4, 2007, from http://article.nationalreview.com/?q=M2RjNDYzNGIwNDNiOGUwOTMyODZhZDJmYzZhNDhkMGU=
2. Neither would it seem like crocodile tears if those offering it had risen in similar righteous indignation when President Clinton pardoned crook and campaign contributor Marc Rich and also Susan McDougal, who refused to testify as to whether President Clinton had lied under oath
3. Editorial, (2007, July 3). Appropriate Presidential Mercy. National Review Online, Retrieved July 4, 2007, from http://article.nationalreview.com/?q=YzQ4ZDQwYzA2Yjk5YmEwZGVhMzVhZGYxMDQ1MWU5MjI=
4. Krauthammer, Charles (2007, March 9). Time To End Fitzgerald's Folly. The Washington Post, Retrieved July 4, 2007, from http://www.realclearpolitics.com/articles/2007/03/bush_should_pardon_libby_now.html
5.I would be remiss if I did not mention the glaring contradiction between the application of justice in this case with that which occurred when former national security advisor Sandy Berger deliberately attempted to steal and remove highly classified documents from the national archives and then lied about doing it, with little more than a slap on the wrist. That seems to be an offense much steeper than failing to recall when one heard of a certain person’s identity months in the past. Mr. Libby could reasonably claim to have a hazy memory, it is hard to claim that one inadvertently walked out of the archives with documents stuffed in your socks and underpants. Yet Mr. Berger was fined $50,000, given probation, and sentenced to community service, while Mr. Libby was given a fine of $250,000, two and a half years in prison, and then two years probation. Justice does not seem to be blind in this case, but instead has a poor sense of balance.
6. Novak, Robert (2007, July 4). Bush as Solomon. Creators Syndicate, Retrieved July 4, 2007, from http://www.realclearpolitics.com/articles/2007/07/bush_as_solomon.html

Changing Diplomatic Course--Completely

If the administration’s end is to effect the dismantling of North Korea’s nuclear program, then the recent agreement with them and our policy and behavior since could not be more self-defeating. Presumably, the end we seek is to compel the North Korean regime to disassemble its nuclear program through peaceful, diplomatic means. If this end is possible—if the rogue regime of King Jong Il can be peacefully convinced to simply disavow its nuclear possession—then the means being presently employed will not suffice.

We can know this because we tried our current approach once before—under the Clinton administration—and it failed. There we gave them various forms of material aid in return for their pledge to end development of a nuclear arsenal. Before the ink had dried on the treaty however, they violated it and now have developed such an arsenal.

None of us should be surprised, for the agreement had little to no chance of success. Our policy and approach was entirely wrong. We were not firm, resolved, nor tough with the North Koreans; which is the one way you command the respect and compliance of a rogue regime.

Kim Jong Il and company judged that there would be no penalty for their malfeasance; that America’s noble desire to remedy problems and conflicts peacefully and diplomatically would prevent us from acting forthrightly against non-compliance or even to pursue a course of strict enforcement of the agreement. In fact, a nuclear program was and is a meal ticket through which carrots and concessions can be accumulated through blackmail and distortion.

They judged correctly. Further, if they could gain concessions through the simple public desire to have nuclear weapons, then what is to say they could not get that and more once they actually possessed nuclear weapons? So the development went on.

Quoting the editors at OpinionJournal, "Pyongyang's pattern has long been to admit as little as possible every step of the way, and then insist that the U.S. must make further concessions at every instance."1 Their approach: Take advantage of America’s good intentions and peaceful inclinations. Develop weapons and gain concessions from America in return for a promise to stop. Never actually stop and after a while possess weapons. Promise to dismantle that weapons program in return for even more concessions without negative consequences for lying in first agreement, but never actually dismantle the program. Blackmail America some more now and in the future. Keep doing so.

This is their game, and so long as we participate in it they will win. Nuclear weapons are their means through which to extract what they want from a compliant United States. By agreeing to provide material aid to the regime, and to foreswear punitive measures, we only give them more reason to maintain their nuclear capacity.

This policy could not be more counterproductive, especially now. We cannot expect them to dismantle when we give them no incentive, or provide no credible threat of penalty, to do so. Under our first agreement we gave them carrots to cease their nuclear development. They did not cease that development and now have nuclear weapons. Now we have agreed to give them more carrots to dismantle their program, without introducing any negative consequences for violating the last one. With no penalty and all the incentive to, the North Koreans will violate this agreement like they violated the last.

To wit, they already are. Per provision of the Bush Administration’s agreement with the North, they were obligated to close down a nuclear reactor weeks ago. They did not. Instead of any penalization for this, the deadline was extended and we acquiesced to their demand to unfreeze assets the regime had accumulated through its comprehensive criminal activity, which was never stipulated to in the agreement. Not only are we not enforcing the mandates of the agreement, and thereby acquiescing to their violation, we are making further concessions beyond those already agreed to.

What kind of diplomacy is this? Far from compelling the end of the regime’s arsenal, this policy only encourages its perpetuation. By appeasing the regime, we are projecting weakness. They will never fulfill their promises so long as we reward and re-enforce continued malfeasance. From their standpoint, why get rid of a mechanism which garners you material and non-material concessions without any negative consequences?

Those in favor of this backwards policy and behavior argue that it is necessary to maintain a dialogue and de-escalate tensions between the two nations. But to what end? Dialogue and diplomacy are simply means to an end, not an end in themselves. What advantage is there in an ongoing dialogue with the North that does not only accomplish nothing, but actually encourages them to maintain their program?

The incentive to defiance must stop. The North Korean regime is a criminal, despotic, and belligerent regime. They have no interest in peace or diplomacy. They do not share our interests and any dialogue or negotiation with them is not entered into in good faith. Their sole interest is the propagation of their own power and the existence and the multiplication of their wealth.

We must abandon the policy that makes nuclear capacity a means to that end. A complete reversal is in order, and no less than one will suffice. As the editors at National Review pointed out, "If the new deal had required North Korea to close its reactor and destroy its existing nuclear arsenal before receiving any aid, it would have been worth signing. But of course Kim hasn’t promised to dismantle the existing bombs, precisely because they are both the best guarantor of his power and his strongest leverage against us."2 Our present agreement with them must be vacated, they have already departed from it anyway. Instead of giving the regime carrots for maintaining a nuclear program, we must make it clear as glass that their nuclear program must be dismantled in its totality. Then, and only then, will they receive any carrots from us.

This doctrine makes the incentive clear. Have a nuclear program, you get nothing but sanction and isolation. Give it up and there will be a reward. It is a simple choice.

The possibility of an Iranian nuclear capacity makes this approach doubly incumbent. Adopting a forceful position with North Korea will send the message that the development of a nuclear arsenal will not be rewarded and that the United States will not be taken advantage of or blackmailed. Following the current approach will send the exact opposite message. Quoting Jason Lee Steorts, the current policy "announces to any would-be proliferator that a country possessed of atomic bombs can defy the United States and claim a reward for its defiance."3

Iran appears to have disparate intentions behind its program. Though there may be ancillary material motivations behind their pursuit for nuclear weapons, the deciding factor seems to be—unlike North Korea’s material purposes to blackmail material provision from the United States—regional political theological gain. North Korea seeks power and wealth, Iran envisions nuclear capacity as a means towards emerging as the dominant power in the Middle East with the ability to spread its version of Islamic Revolution. Reul Marc Gerecht has observed that "modern Middle Eastern—and especially Iranian—history clearly shows that ideology has run roughshod over economic pragmatism."4 If material gain is not their prime motivation, then neither is material incentive likely to persuade them to abandon it.

But this in no way diminishes the desideratum for principle with North Korea. Though the approach I advocate is material in nature, it is a projection of strength and resolution as well. Former national security advisor and secretary of state Henry Kissinger5 has correctly asserted in a piece titled "Iran Despises Weakness" that a demonstration of some credible strength is requisite in diplomatically compelling Iran to abandon its nuclear aspirations. The editors of National Review echo this as well. "Only once [the mullahs] have something to fear will they consider making a deal."6

The best way to demonstrate this strength credibly is to legitimately project it through material means tailored to the circumstances with the North, which will in turn demonstrate a readiness to exhibit it with Iran as well. As we will not tolerate nuclear capacity with the North, we will not tolerate it with the Iranians either. Our current policy projects only impotence. Why should the mullahs believe that we will be resolute with them when we are not even willing to withhold carrots from the North Korean regime for its defiance?

When nothing short of absolute resolution by the United States—and the international community for that matter—can prevent the Iranians from realizing their nuclear goals, our present policy with the North Korea could not be more dissonant and self-defeating. If we have any intention of seeing North Korea dismantle its nuclear program and of projecting an image that will allow us to thwart the Iranians and their nuclear development then we must reverse our present policy with the North. We live in an age too fraught with peril to be projecting and demonstrating weakness.

1. Editorial, (2007, April 13). Kim's $25 Million. OpinionJournal, Retrieved April 20, 2007, from http://www.opinionjournal.com/editorial/feature.html?id=110009934.
2. The Editors, (2007, February 14). Agreeing to the Same Framework. National Review Online, Retrieved April 20, 2007, from http://article.nationalreview.com/?q=ZjliMGZmYzdjYzEwNGY1YzBhNDBlZTY2MmZiMmIyMGI=.
3. Steorts, Jason Lee (2007, May 14). Axis Uber Alles?. National Review, LIX(8), 26-7.
4. Gerecht, Reul Mark (2006, April 24). To Bomb, or Not to Bomb. The Weekly Standard, 11(30), 16-24.
5. Kissinger, Henry (2006, November 19). Iran Despises Weakness. Sunday Times Online, Retrieved April 20, 2007, from http://www.timesonline.co.uk/tol/comment/article641514.ece.
6. The Editors, (2007, June 1). Iran Takes Prisoners (Again). National Review Online, Retrieved June 1, 2007, from http://article.nationalreview.com/?q=MWFhYjY2M2I3M2E5NDYwNThlZmE5ZWViYmU4MGFiYzg=.

On Torture [Rev.]

Torture is one of those issues whose morality is easily decided in the philosophical and the abstract. It is so cruel, so barbaric, so inhuman, and so overly repugnant to the senses that it cannot possibly be justified or condoned. No democratic nation that claims to respect and protect the sanctity of human life could sanction it and still deserve the name. It is a brutal and abominable relic of civilized man’s violent past, and it should remain there. We have long since evolved and (hopefully) left the institutions of such a nature long behind. This much we can all be certain of.

Our law reflects that sentiment. Title X, §1003 of the Detainee Treatment Act of 2005 mandates that "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment."1 That is clear as glass. No individual detained by the United States of America can be tortured by any official or officer of the United States of America in any place, at any time, under any circumstances.

But there is a problem with this, or at least an issue that the text of the statute does not address. Senator John McCain, one of the chief sponsors and proponents of the Act, raised it in an essay for Newsweek in 2005. While torture is unquestionably awful, "[w]hat do we do if we capture a terrorist who we have sounds reasons to believe possesses specific knowledge of an imminent terrorist attack?"2 Is it possible that it would be morally justifiable to torture that terrorist if it allows us to thwart that terrorist attack? At the very least, this conundrum challenges the legal and moral absolute our republic has constructed regarding torture in the form of the Detainee Treatment Act.

Western civilization as a whole, but the United States specifically and most prominently, faces an existential threat from extremist Islamic terrorism. This terrorism seeks to kill as many innocent lives as possible, to inflict as much physical destruction as possible, and to incubate maximum suffering. That those who endeavor to perpetrate it have no regard for their own life in the pursuit, and seem to glorify their own death, presents a unique and daunting challenge to any society who must protect themselves from it.

It is in these circumstances that we are compelled to revisit and reconsider the question of torture and the policy we have created regarding it. I argue that the Detainee Treatment Act’s absolute proscription of torture, though generally prudent and admirable, is overly and unnecessarily broad. We should proscribe torture generally, but not in all circumstances.

It is certainly hard to disagree with Andrew Sullivan: "By endorsing torture–on anyone, anywhere, for any reason–we obliterate the very values we are trying to promote."3 But is it not possible that in extreme circumstances torture might be the lesser evil? That is, if the other evil is the death of scores of innocent lives in a terrorist attack? As the columnist Charles Krauthammer has pointed out, "However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information)."4

We have all heard the hypothetical, or some variation of it. A weapon of mass destruction has been planted in a major American city and in a short period of time it will be detonated. A terrorist with knowledge of the bomb—where it will be detonated, who will detonate it, when it will be detonated—is incarcerated at the American military base at Guantanamo Bay, Cuba. He is not talking, and has no intention of doing so. None of the legal, acceptable, and humane interrogation techniques are working, nor will work. The weapon could be detonated at any minute. Whole streets stand in impending danger of being destroyed. Millions of dollars stand to be lost. Worst of all, thousands of innocent people, simply going about in the routine of their daily lives, are likely to be killed or maimed. Their deaths will have a devastating effect on the secondary victims of the attack as well, the friends and family members of those lost.

In circumstances such as these, can we truly say, in good conscience, that torture is always impermissible, as we do in the Detainee Treatment Act of 2005? Does this not confirm that, though it is morally impermissible most of the time, it is not so all of the time. If that interrogator can ascertain needed life-saving intelligence from the obstinate terrorist through torture, should he not do so? Can it possibly be morally repugnant to torture a terrorist with knowledge when doing so can help save innocent human life?

I cannot hold that it is. And I think that most people, confronted with this same scenario, would so concur. In such a situation, to not do everything possible to save those lives, in my view, would be the immoral wrong, not torture.

The question we must debate and resolve is not only whether torture is permissible in extremely rare circumstances, but also what circumstances those are.

Given the obviously cruel nature of it—or as Mr. Krauthammer has termed it, "the monstrous evil that is any form of torture"5—and its oppressively heavy moral implications, those circumstances must be strictly defined and strictly enforced.

I would limit torture to be only permissible in "ticking time bomb" scenarios. Granted, it is hard to give an exact definition for what circumstances would qualify as such a scenario. However I would adopt the formula crafted by the supreme court of Israel, as described by Harvard Law professor Alan Dershowitz. Torture may be defensible "if an interrogator honestly and reasonably believe[s] that the only way to prevent an attack was to apply moderate physical pressure."6

I am not advocating a lethal form of torture in such circumstances, for such would defeat the purpose of torturing the individual in the first place, which is to compel him to divulge intelligence that would allow the U.S. to prevent a terrorist attack and save innocent life.

The "moderate physical pressure" spoken of by the Israel court also seems vague and open to interpretation, manipulation and abuse to me. What I mean by torture permissible in these circumstances are procedures such as waterboarding, sleep deprivation, climate and conditional manipulation, injection of truth serum, etc. Non-lethal practices, but ones which place the detainee in a state of pronounced duress.

But to reiterate, these would only be justifiable in the scenario quoted above. The attack has to be impending, beyond the planning stage and into the execution stage, where all the plans have been made and all that is left is to carry out the attack. Then, and only then, would I find the torture of a terrorist justifiable. Torture is the absolute last resort, after all other available means have been attempted and have failed.

I believe the Detainee Treatment Act should be amended to this effect. Senator McCain, who does acknowledge the possibility of the scenario and the justifiability of torture in it, does not. Instead of changing the law to allow for torture in a "ticking time bomb" scenario, he would leave an absolute proscription of torture in place. "To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course," he argues, "rather than a standard violated truly in extremis. It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America’s purposes and practices."7

This is certainly a reasonable argument, but I would nevertheless reject it. There is no question that carving out a codified exception to the Detainee Treatment Act’s blanket ban might open the door to abuse, but I believe this is outweighed by the deleterious consequences neglecting to do so might incur. With the specter of a possible prosecution and imprisonment looming over them, an interrogator may decline to act in an attempt to cover themselves from any risk of future prosecution, even where torture is self-evidently justified and required. As self-evident as it may be to the interrogator, it is never guaranteed that an overly zealous prosecutor or a judge and jury will see it that way after the fact.

Professor Dershowitz’s approach, and the approach he quotes from President Clinton, would be the one I would adopt. Instead of carving out no legal exception to the Detainee Treatment Act’s complete proscription and relying upon the individual interrogator to take the law into their own hands when they deem it to be necessary, with only the possibility "authorities and the public [will]...take this into account when judging his actions and recognize the extremely dire situation which he confronted," interrogators should be given legal protection, not fleeting possibilities. Codification is needed. Whenever torture is to be used, or any interrogatory technique approaching it, there ought to be "explicit approval from the president...such a ‘torture warrant’ approach would force the president to specify precisely what is allowed and what is not."8

This route is the only one which insures accountability. As Professor Dershowitz also points out, "some forms of torture have been, are being and will continue to be used by democracies in extreme situations, regardless of what we say or what the law provides."9 By compelling the issue of a warrant by the president, it helps insure that it will only be used in those truly extreme "ticking time bomb" cases because the president and the president alone will be held to answer for and justify the decision to issue the warrant, not only politically but legally as well if we adopt the proposal advanced by President Clinton, which I endorse. He "would permit the president to make a finding in a case [such as the ‘ticking time-bomb’ scenario], and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court."10 A warrant based on a presidential finding and judgment along with a post facto judicial review insure both accountability and independent review.

*****

The concerns with and objections to codifying an exception to Title X §1003 of the Detainee Treatment Act of 2005, as outlined by Senator McCain, are valid. They are outweighed, however, by the benefits of doing so. Mandating that the President issue an individual warrant, enumerating which specific procedures are to be used, with a post facto review by the FISA Court has the advantage of insuring that torture or excessive interrogation tactics such as waterboarding are limited to only the most extreme "ticking time-bomb" scenarios and that those who are conducting the interrogation are given the legal justification to do so.

As Professor Dershowitz acknowledges, torture is likely to be carried out in at least rare circumstances anyway. By amending the Detainee Treatment Act of 2005 to codify certain instances where it is permissible, we would help insure that it is done so in concurrence with a legal process and not in a surreptitious, winked at manner outside of the law.

1. Detainee Treatment Act, 10 U.S.C. §§ 1001-1006 (2005).
2. Sen. John McCain, Torture’s Terrible Toll, Newsweek, Nov. 21, 2005, at p. 34.
3. Andrew Sullivan, The Abolition of Torture, New Republic, December 19, 2005, at 19.
4. Charles Krauthammer, The Truth about Torture, The Weekly Standard, December 5, 2005, at 21.
5. See Id.
6. Alan Dershowitz, Stop Winking at Torture and Codify It, Los Angeles Times, June 13, 2004, at M5.
7. McCain, supra
8. See Id.
9. Alan Dershowitz, Commentary, Torture and Accountability: ‘Torture Warrants’ are a necessary evil–even Bill Clinton Agrees with Me Now, Los Angeles Times, October 17, 2006, at B. 13.
10. See Id.

The Blindly Loyal Executive

In its April 2, 2007 issue, National Review provides a comprehensive critique of President Bush’s executive and management abilities. The subject is addressed through disparate prisms in the form of specific issues—the Libby case, the firing of the eight U.S. attorneys, Iraq, etc.—but the focal, summary piece is authored by editor Rich Lowry.

He asserts that the President’s excessive "reflex to stand by his man points to a key weakness in his management style." This thesis is correct, if not a little insufficient. The tendency he speaks of is not only a "key weakness" of the President’s, it is his one, inherent, and possibly fatal flaw.

The President is endowed with virtually all qualities good presidents have. He is far-sighted. He thinks big. He is optimistic. He has an intrinsic sense of moral conviction and has the courage of that conviction. He leads, which in its most salient definition means going down a path that is the right one, but not necessarily the one of least resistance.

But the President betrays these attributes through his blind, extravagant sense of loyalty, possibly crippling those causes he otherwise so faithfully and courageously pursues.

Loyalty certainly is not a bad thing in itself, in politics and in general. After all, any man who can be said to be loyal has at least one virtue. But loyalty cannot be given without qualification. By supporting subordinates who are not performing, loyalty becomes tantamount to an acceptance and personal assumption of failure. Accountability then becomes non-existent and performance stagnates. Witness President Bush’s over-extended support of George Tenet, Mike Brown, and Donald Rumsfeld. Unyielding support led to massive intelligence failure, bureaucratic failure, and anti-insurgent failure.

An absence or inadequate presence of accountability is all the more crippling in the executive style and approach the President adopts.

There are two types of executives, those who micro-manage and those who delegate. Ideally, an executive adopts an approach somewhere in between the two, erring towards delegation. President Bush does follow this approach, as is prudent. The most important rule that governs an effective executive, after all, is to do only that which your subordinates cannot.

Yet by its definition, delegating is to entrust a substantial amount of responsibility to subordinates. Accordingly, the executive doing the delegating has to hold those subordinates accountable.

This is a logical inference of the rule. An executive who delegates all to his subordinates except for that which only he can do must assiduously maintain accountability among them, taking care that the work and responsibility they are entrusted with is in fact within their competence. If the executive is not going to do the work than his overriding responsibility becomes seeing to it that those he delegated to can do it and do do it. If they cannot, the executive must either then assume that responsibility himself or replace the subordinate with one who can. That is the only way the executive and his organization can be effective.

Extravagant, unbridled loyalty undermines any semblance of accountability and the most important mechanism through which performance is maintained. This is crippling in any administration, but especially one operated by a delegatory executive system. You cannot delegate and not then hold those delegated to accountable and still maintain adequate performance and success.

Such is the President’s failure as an executive. Present is an unbridled loyalty resulting in a diminished standard of accountability among those within the administration, whose individual components are charged with significant delegated work. There cannot be a dearth of accountability in an administration so run without dysfunction, and there isn’t.

The Immigration Deal

The President and the Senate have agreed to a new deal on immigration this afternoon. At this moment, I feel like I would have to oppose it.

I support any comprehensive reform legislation that does not grant amnesty, and have disagreed with many in my party who have argued that previous comprehensive proposals have. But prima facie, this piece of legislation does exactly that. It would grant "probationary" legal status to all illegal immigrants currently in the country immediately upon passage, apparently without any subsequent process through which they would have to go through to become permanently legal.

This is unacceptable. The legislation provides for no punishment whatsoever for immigrants who have come into this country in violation of United States law, a base reward for illegality and an insult to those immigrants who actually went through the extravagant process of becoming naturalized citizens.

Any comprehensive reform meriting passage into law would, at minimum, provide for some sort of penalty for immigrating here illegally—fines, payment of backtaxes, etc.—and a mandatory process through which illegals would have to get in line behind those already there waiting to become legal citizens.

The compromise legislation here provides for none of this. Instead, it grants what is tantamount to a blanket, no strings attached amnesty and reward to those who violated our nation’s laws and took advantage of the benefits of our system and society.

For this reason I would oppose the legislation, despite what appear to be many other positive aspects of it.

The GOP Presidential Primary Debate

I view with heightened skepticism the premise and logic of holding presidential primary debates at this stage of the campaign cycle. Iowans will not be making their way to the state’s caucuses for more than seven months. The campaign has hardly had time to ripen. The issues that will define it are still forming. Most importantly, those for whom a debate is supposed to benefit—the voters trying to make an educated decision—are not, but for the most addicted junkies, paying a bit of attention yet, nor will they be for some time.

Nevertheless, it is still possible to extract some value out of one, assuming it is executed properly.

This was not the case with the Republican debate of last week and probably (I did not watch it) the Democratic one of the week before. Those who planned and executed it did a miserable job and should themselves, I am tempted to say, be executed.

The format was terrible and utterly unhelpful to the singular voter who may have been watching at home. Thirty seconds, at most, was allowed to each candidate per question. That is not nearly enough time to give a meaningful answer. The question would be asked, the candidate would begin their response, and just as they began to delve into the real substance of it Chris Matthews would obnoxiously yell "Time!" All that voters were able to hear were short sound-bites, fragmented thoughts, and gratuitous invocations of President Reagan, whose library played the gracious host and whose spirit the party is in desperate search of.

Understandably, when there are ten candidates on the stage it is practically impossible to give sufficient time to them individually (again calling into question the expositive value and point of having a debate, if it can be called that, at this point). If each and every candidate is to be given equal time then it will be equal to the lowest common denominator, where equal time for all essentially means no time for all.

No shrewdly constructed format can alter this, but one can mitigate it. Question discipline is indispensable. With the quality of the debate being the central prerogative, an abundant quantity of candidates renders imprudent an abundant quantity or diversity of questioning. Discussion concerning those issues of secondary importance have to be discarded, or at least saved for another, more logistically conducive time. That is, questions like "What would you tell a Catholic bishop who refused to serve the Eucharist to pro-choice Catholics?" and "Would it be a good thing to have Bill Clinton in the White House again?" must go unasked and unanswered at the behest of a quality discussion regarding Iraq, Iran, taxes, entitlements, immigration, etc. The former line of questioning would not be relevant even in a format where time is not an issue, let alone in one where it clearly and severely was.

If MSNBC and Politico.com had wanted to extract any value from the debate they would have focused the questioning and the discussion, sacrificing breadth and diversity for quality and substance. Instead of being made to answer a wide-range of questions—some relevant, many not—for only thirty seconds each, the candidates should have been allowed to answer a limited number of questions for at least a minute or minute and a half. Hardly sufficient time, but at least adequate to develop a cogent thought or two.

The exact opposite occurred, and it was this frivolity that rendered the debate utterly useless and a stark waste of time for all involved.

Comment Response: "Gonzales v. Carhart"

You betray your shallowness all too clearly, William. Instead of providing a counter-argument of your own, i.e. demonstrating how the Court’s jurisprudence is reconcilable with the Constitution and how its ruling in Carhart II is not, you simply claim I am "parroting neo-con talking points." That is unavoidably an intellectually substanceless hit-and-run.

But you do not even do that right. In fact you have made it further evident that labeling someone "neo-con" is a description no longer with any meaning. Neo-conservatives are a faction subscribing to a particular approach towards foreign policy. What a school of thought of that nature has to do with a Constitutional discussion you fail to explain, or even try to explain.

As Jonah Goldberg* has pointed out, George Orwell once wrote that "the word fascism has now no meaning except in so far as it signals ‘something not desirable.’" As your comment demonstrates, the same can now be said of neo-conservatism. My piece on the Carhart decision was not vaguely related to neo-conservatism or areas where neo-conservatism would be relevant. It has become just a pejorative label to be slapped on anyone or anything distasteful to liberals.

Or maybe you simply mistakenly mixed up the stereotypical label those on the left like to apply to conservatives and their arguments. Did you mean to call me a parrot of the religious right instead?

*Goldberg, Jonah (2007, April 2). Kill This Word. National Review, LIX(5), 18-22.

Gonzales v. Carhart

I would concur in part and dissent in judgment from the Court’s recent decision in Gonzales v. Carhart.

Justice THOMAS correctly wrote in his concurrence "that the Court’s abortion jurisprudence, including Casey and Roe v. Wade [citation omitted], has no basis in the Constitution." Gonzales v. Carhart, Slip at 47 (2007)(THOMAS, J., concurring). This is because the Constitution does not contemplate nor address abortion. Among the litany of powers allocated to the Congress and the federal government in Article I, §8, one mentioning abortion is nowhere to be found.

This is inescapably dispositive to the inquiry. In a system of enumerated powers, such as our own, the government cannot exercise a power that is not expressly granted it. Such is only logical. You would not enumerate specific powers to be held by an entity if you intended them to have powers other than or beyond those enumerated. The framers certainly did not, and for most of the nation’s history this was understood. As Chief Justice Marshall wrote in Marbury, "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Marbury v. Madison, I Cr. (5 U.S.) 137 (1803).

As Madison explained further in the original debate over the Constitution, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." Madison, Federalist 46. The Tenth Amendment simply manifests this principle in legal form, mandating that those "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." To quote from the attorney Charles Cooper, the Amendment was included as the last within the Bill of Rights to warn against a supposition that there were "powers in the national government that were not granted by the original document." Charles Cooper, Reserved Powers of the States, in The Heritage Guide to the Constitution 371, 371 (Edwin Meese, ed., 2005).

If the Constitution does not say the national government has a power then that power is reserved by the individual states, or to the people. The Tenth Amendment controls here. The states, and only the states, have the ability to regulate or not regulate abortion.

Accordingly, there was no basis for the Court to proscribe statutory abortion prohibitions or restrictions by the states in Roe, Casey, Carhart I, etc. As Justice Thomas has explained, "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so." Stenberg v. Carhart, 530 U.S. 914 (2000)(THOMAS, J., dissenting). Because of this, the Court has not been faithfully applying the Constitution, to borrow from Justice Scalia, it has been creating a "self-awarded sovereignty over a field where it has little proper business..." Webster v. Reproductive Health Services, 492 U.S. 490 (1989)(SCALIA, J., concurring).

The same principle is at play in this case. If the Court or federal government cannot prevent a state from statutorily prohibiting or restricting abortion, then neither can the Congress and the President pass and sign into law a statute regulating it in any form. The sword cuts both ways. The Constitution gives no authority to any branch or entity of the federal government to enter a sovereign province of the states.

Granted, the Court’s decision is licitly correct under the premise it was decided within, which was consideration of the Court’s own abortion precedent and jurisprudence. In accordance with Casey, the Court did rightly hold that the statute does not place an "undue burden" on a woman’s ability to receive an abortion, nor is it impermissibly vague or without an adequate exception for the life of the mother, unlike the Nebraska statute struck down by the Court in the preceding Carhart decision.

But this is a false premise. If the Constitution does not mention abortion—and does not permit the federal government to regulate or hinder the individual states’ license to regulate it—then this statute is not Constitutional, regardless of the Court’s erroneous abortion jurisprudence. If respondent’s genuinely sought the invalidation of this statute, then this would be the case to be made. (Of course they did not and would not make this assertion because a Court willing to invalidate a statute on these grounds would not hesitate to vacate Roe and every other bit of its illegitimate progeny.)

Conservatives throughout the nation are rejoicing at the Court’s decision, and in a sense, why shouldn’t they be? The merits of the statute are laudable. Few—conservative or otherwise—could object to a general proscription of a practice that virtually obliterates the line between abortion and infanticide.

But this is ultimately irrelevant. The fact that the statute is the fruits of sound moral and ethical judgment is irrelevant; it was not the federal government’s judgment to make.

For those genuinely concerned with fidelity to the text and meaning of the Constitution, there is little to celebrate in this decision. The jurisprudential house of straw the Court has constructed on abortion still stands and the text and principle of the Constitution remain no less mired in obfuscation than it did before. The Court’s decision is as equally Constitutionally specious as Roe and Casey.

Narrowly tailored to the premise the case was presented and decided in, I would concur with the Court’s holding. But that premise is divorced from the text, meaning, and effect of the Constitution the decision falsely claims to represent. Our founding charter makes no mention of abortion, leaving the questions presented by it to be decided by the respective states. Accordingly, the Congress has no authority to enact the statute considered and it is Constitutionally invalid.