The Common Law & American Democracy

I write this in response to, and in concurrence with, the views and commentary on the common law presented by Justice Antonin Scalia in his essay A Matter of Interpretation.1 He specifically focuses upon the role the common law plays in a civil law system. I seek to explore the role the common law should play (if any) in a democratic republic such as ours.

I share Justice Scalia’s view and conclusion that the common law approach American jurists adopt when interpreting legal texts "is a sure recipe for....usurpation."(Scalia, p.14.) As I will argue here, not only do I believe this, but I believe the common law approach in itself constitutes judicial usurpation. Beyond even that, I will argue that the common law theory itself is a contradiction in terms, in that the whole purpose of law itself is defeated by it.

To arrive at the conclusion that a common law approach to judicial adjudication in a democracy is illegitimate one need only examine and understand what the common law is. As Justice Scalia succinctly explains it, the common law "is law developed by the judges."(Scalia, p.4.) In England, the place from which the common law originated, judges served as agents of the sovereign—the king—vested with the power to develop law through hearing disputes between the king’s subjects and rendering decisions in those disputes. These decisions, put together, developed into one common body of law—the common law. Though resolving specific disputes between two or more parties was important, the most important function of common law judges and courts "was to make the law."(Scalia, p. 6.)

The same formula is at work in the creation of law in America: the sovereign designates agents with whom the authority to make law is vested in. The difference is that in America the people, not the king, are sovereign; and the agents vested with the authority to make law are the people’s elected representatives in the legislative and executive branches, not judges. Same formula, different components.

It is here wherein a common law approach to judicial adjudication in American democracy is illegitimate. Judges do not have the power to make law in America, as they did in England under the English common law; and the common law is judge-made law. In America the power judges do have is to apply the law, created by the agents of the sovereign, to specific legal disputes arising between two or more parties and/or "to say what the law is"2 when applying that law. To make the law and to say what the law is are two completely divergent functions.

Common law lawmaking is only legitimate when the judges creating the common law have been vested with the power to make law by the sovereign. This was the case in England, it is not the case in America. Our system of separation of powers simply does not condone judge-made law, and the common law process of adjudication undertaken by any federal judge is simply an act in trespassing across those brightly colored lines that distinguish the lawmaker from the judge.

Moreover, judge-made law is as illegitimate in our American system of democracy as it is farcical in its very essence. Technically, under a common law regime, a judicial opinion creating law is supposed to carry the effect of a legitimate, binding law through the legal principle of stare decisis, the doctrine of precedent "under which it is necessary for a court to follow earlier judicial decisions when the same points are again in litigation."3

However, to a judge eager to create a new law—one more to his liking—the controlling power of previous precedent under the principle of stare decisis is limited. As Justice Scalia explains, "[n]o rule of decision previously announced can be erased, but qualifications can be added to it."(Scalia, p. 8.) Anytime a judge does not like a relevant or controlling precedent all he need do is distinguish between the circumstances relevant in that supposedly controlling precedent and the circumstances present in the current case. After all, no two cases are ever completely identical. This ability to distinguish enables him to add new qualifications to a given precedent suitable to his sense of justice and opinion of what the law should be. If that law is not attractive to a future judge, he can distinguish further and add a qualification upon the previous qualification.

No such sense of lawlessness within the law exists in the civil law system present in American democracy (provided that is, that judges do not take a common law approach to their work). In this system law is not made through judicial opinion, and then remade over and over again until the very idea of law becomes a mockery. It is made by statute, codified into an actual legal text. Unlike a judicial opinion which applies only to a set of very specific and limited circumstances, a statute is a general rule of law immune from judicial distinctions and qualifications. As Justice Scalia explains, "it is the text of the law rather than any prior judicial interpretation of that text which is authoritative. Prior judicial opinions are consulted for their persuasive effect....but they are not binding."(Scalia, p. 7.)

One useful purpose I do see the common law providing is its possible expository value in ascertaining the meaning of legal terms or provisions crafted in the common law tradition. As former English subjects, the framers of our constitution were great admirers of the English common law, and many of its traditional provisions, canons, and terms of art can be found in the federal constitution and the various state constitutions crafted in that time period. The writ of habeas corpus, a legal guarantee enumerated in Article I, Section 9, Clause 2 in the constitution4, finds its roots in English law, as far back as the Magna Carta possibly, and was a common principle found within colonial American common law prior to independence.5 The Seventh Amendment explicitly contemplates "Suits at common law"6 no less.

For his part, Justice Scalia declares that he is "content to leave the common law, and the process of developing the common law where it is,"only questioning "whether the attitude of the common-law judge....is appropriate for most of the work that I do, and much of the work that state judges do."(Scalia, p. 13.) I am inclined to share a similar sentiment, yet I wish Justice Scalia had elaborated more on where exactly he felt the common law is appropriate to leave in place.

Regardless, though there is some question as to where exactly the common law is and should be appropriately left in place, there is no question as to where it should not: in constitutional and statutory law, where a law’s actual text, enacted via a democratic process, should and must be the definitive word; left only to be applied and clarified, but not altered or redacted by the judge. Judge-made law profanes the notion of democratic self-government, where laws are enacted by the people through their designated agents, not by a robed oligarchy.


1. Scalia, Antonin (1997). A Matter of Interpretation. Princeton, New Jersey: Princeton University Press.

2. Marbury v. Madison 5 U.S. 137 (1803) (Marshall, C.J.,)

3. Garner, B (Ed.). (2001). Black's Law Dictionary. St. Paul, Minnesota: West Publishing Co.

4. "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

5. Hall, Kermit L.. (Ed.). "Habeas Corpus". (2005). (2nd ed., New York, New York: Oxford University Press.

6. "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

Memorial Day '06

For Those Who Cherish Freedom, The Fallen Will Not Be Forgotten

President Bush Another Nixon?

National Review’s Jonah Goldberg penned a piece of couple of weeks ago musing over the similarities between the nation’s thirty-seventh president, Richard Milhous Nixon, and the nation’s current president, George Walker Bush. After perusing through the plethora of liberal characteristics present in the Nixon presidency, Mr. Goldberg concludes that though President Bush "is certainly to the right of Nixon on many issues.....at the philosophical level, [President Bush] shares [President Nixon’s] supreme confidence in the power of the state. Bush rejects limited government and many of the philosophical assumptions that underlie that position. He favors instead strong government."

I do not disagree with Mr. Goldberg’s characterization of President Bush’s conservatism as one of a "strong government" flavor. What I do disagree with is his implication that President Bush’s desire for strong government is synonymous with Nixon’s very liberal, very big government. I find very little similarities in the governing philosophies of Presidents Nixon and Bush, aside from the fact that both philosophies are products of their own unique times and that both president’s have seen the federal government as a means in achieving an end; two completely different ends mind you.

President Nixon entered office at the climax of the age of New Deal and Great Society liberalism, a time when big government was at its pinnacle. President Lyndon B. Johnson had been reelected four years earlier in 1964 riding the wave of popular support for his Great Society initiatives. His popular downfall towards the end of that term was not precipitated by any popular revulsion at big government or the Great Society, but by the course of the Vietnam War. Had it not been for Vietnam it is highly likely that vast political capital, predicated upon decisive public support, would have allowed President Johnson to more thoroughly enact the programs of the Great Society.

Conversely, President Nixon was able to defeat Vice President Humphrey in ‘68 not because he promised to shrink the federal government, but because his national security credentials lent him the credibility to convince the American people that he would end the conflict in Vietnam. The demand for Johnsonian big government was still very much alive, and President Nixon was there to provide ample supply for that demand. In President Nixon’s five plus years in office his administration created the Environmental Protection Agency and the Philadelphia Plan, pushed for wage and price controls, and appointed Harry A. Blackmun to the Supreme Court, among other items; all repugnant to any conservative.

To express dismay or surprise at this though would be naive. President Nixon presided over the nation in an age of prolonged, perpetual government expansion where political survival depended on conformity to prevailing liberal, big government persuasions. His liberal Republicanism was but a means in not only surviving in this atmosphere, but thriving in it.

Not so with President Bush. The age of Great Society liberalism has ended. The welfare state has been reduced and reformed, as has the federal tax code. The days of unfettered and appalling government expansion have subsided.

This does not mean we are exactly in an age of small government though, but rather somewhere in between Great Society liberalism and the pristine federal government of limited and enumerated powers envisioned by the framers.

Upon this reality President Bush’s conservatism is predicated. Though President Reagan was able to do much to reverse the excesses of the Great Society, he was only able to go so far. Attempts at exorcizing much of the Federal bureaucracy, including the Education Department, tried and failed. There were, and still are, too many special interests invested in a large federal bureaucratic state for efforts to diminish it to be successful.

President Bush has not tried to fight this. Instead of wasting time in trying to trim the size of the federal government in an age un-conducive to such efforts, he has tried to manipulate the government apparatus and use it for conservative ends, with the hope that by doing this the demand for big government will continue to decline.

Examples of this philosophy abound. In No Child Left Behind localities were given greater flexibility in curriculum and setting standards while also being held to greater account for reaching and meeting those standards by the federal government. Increased local control and accountability are both conservative principles.

The president’s Social Security reforms, though un-conservative on their face in that they would be exorbitantly costly, are, in fact, quite the opposite. Instead of compelling workers to surrender six percent of their income to the federal government, the president would allow workers the option to take that income and invest it in the stock market. This proposal would further conservative principle by vastly diminishing the control the federal government holds over individual’s retirement, thus empowering the individual worker.

The same idea is at work in the president’s promotion of health savings accounts, which help diminish the role government plays in health care by allowing individuals to choose among health care competitors on the free market.

The most obvious conservative attribute of the Bush presidency is, of course, his tax cuts. Tax cuts represent the epitome of conservatism in that they are based, in President Bush’s case at least, upon the belief that an individual can spend his or her money better than the federal government can.

None of this is to say that the Bush presidency has not had its liberal streaks. The prescription drug benefit, though it contained health savings accounts, was an enlargement of government entitlement spending and obligations of a magnitude President Johnson would have been proud of. The farm subsidy bill, signed into law in 2002, was a lavish government handout, no way around it.

All that proves though is that President Bush is not a perfect conservative; but no conservative is and no conservative president ever will be. What the president is is a faithful and consistent adherent to the brand of conservatism that does not try to futilely shrink the federal government in a direct sense, but instead accepts reality and uses the federal government as a means in enacting conservative ends.

It is here whereupon the notion that Presidents Nixon and Bush are identical in nature is mistaken. Yes both presidents used the federal government as a means to an end (and to pure small government conservatives this in itself precludes any president from claiming to be conservative), but the ends they used it for are completely different.

President Nixon’s ends were unquestionably liberal; they unabashedly and, in my view, recklessly enlarged the size of the federal government and, along with the similar policies of the New Deal and the Great Society, created a prevailing culture of dependency which degraded our national character and strength.

President Bush’ proposals and philosophy on the other hand use the federal government to promote conservative principles of personal freedom, ownership, and self-determination; all principles which enhance national character and strength. As Fred Barnes* has pointed out in his analyses of President Bush’s conservatism, it doesn’t matter "how big government is but what it does."

The current size of the federal government is not going to shrink, at least not for the time being. Faced with this reality it is completely compatible with conservatism to use the federal government as a means in promoting and achieving conservative ends. A large federal government is not ideal, but it can be utilized to strengthen the nation through conservative principles.

Unlike a federal government employed to advance the liberal principle of simply expanding itself ad infinitum, a strong federal government can be a tool in enhancing the strength, independence, and character of the American people, eventually diminishing popular dependency and demand for a large federal government. If following and promoting this philosophy is not conservative, than I no longer know what being a conservative really means.

*Barnes, Fred (2006, January 23). "Strong-Government Conservatism". The Weekly Standard, 11(18), 24-31.

On Immigration Reform and the President's Address

In his Monday night address to the nation the president laid out a pragmatic, rational plan to solve the mess along the southern border. This has not, nor will it, politically help the president with his alienated conservative base however, whose unrest over illegal immigration, after festering for years, has reached a boiling point. These conservatives want one thing and one thing only—an impregnable border protected by a wall re-enforced with increased border security.

This, for the most part, is what the president promised. He called for six thousand new border agents, a virtual and physical wall at designated spots, aerial surveillance, additional funding for local law enforcement, temporary deployment of the national guard, an end to "catch and release", and so forth. Since the president’s address the Senate has even passed an amendment calling for the construction of a wall along the entirety of the southern border, a provision similar to one passed by the House and something the president has indicated his support for.

But this has all been for naught. The minute, nay the second the president uttered the words "temporary worker program" any support he may have engendered among those conservatives solely interested in fortifying the southern border was squandered. If an impregnable border is the one thing these conservatives desire, then amnesty, or any policy perceived as amnesty, is one thing they absolutely will not tolerate. Opinion among this group holds that the president’s proposal is "amnesty" properly and succinctly defined. Following the address John Hinderaker of Powerline wrote that once the president "started talking about guest worker programs and the impossibility of deporting 11 million illegals, it was all over." John Mcintyre of RealClearPolitics maintained that the president "missed a real opportunity to help fix a substantive problem facing the nation which politically would have significantly improved his standing among the public and his party’s position heading into the midterm elections." Mr. Mcintyre continued that any immigration proposal without a wall is simply further evidence, to estranged conservatives at least, that the federal government is still not serious about stifling the flow of illegal immigrants across the southern border.

In fact, quite the opposite is true. Those who oppose the president’ guest-worker proposal because of its contested lack of sincerity are lacking sincerity themselves. As the president emphasized Monday evening, the only viable plan is a comprehensive plan. A plan enacting only increased security along the border would be just as feckless and ineffective as one enacting only a guest worker program.

If a genuinely secure border is to be achieved we need a wall along the southern border doubly re-enforced by security personnel/technology and a guest worker program. A physical barrier comparable to the Great Wall of China would still be no match for the waves of highly motivated, highly incentivized Mexicans trying to enter this country to make a living and enjoy a better life in America.

Those conservatives who dismiss the president’s guest worker program as "amnesty" need to get realistic. The president’s approach is not only the correct one but the most feasible one because it prescribes the proper remedy for a real, substantive problem. By allowing those illegals currently within the country to enter upon a path to citizenship we in America exhibit our refusal to let an immigrant underclass reminiscent of those which currently permeate Europe to develop in our own country. The esteemed George Will made this argument this week:

Conservatives should favor reducing illegality by putting illegal immigrants on a path out of society’s crevices and into citizenship by paying fines and back taxes and learning English. Faux conservatives absurdly call this price tag on legal status "amnesty." Actually, it would prevent the emergence of a sullen, simmering subculture of the permanently marginalized, akin to the Arab ghettos in France.

The president merits credit and praise for his effort to prevent this from happening, and to insure access to equal citizenship and status to those who come here looking for something more than what they had back home.

Though they came here illegitimately, the great majority of illegal immigrants came here for the right reasons; the same reasons immigrants from all over the world have always risked everything to come here and become Americans for. As the president eloquently stated in his address, our "new immigrants are just what they’ve always been—people willing to risk everything for the dream of freedom. And America remains what she has always been: the great hope on the horizon, an open door to the future, a blessed and promised land. We honor the heritage of all who come here, no matter where they come from, because we trust in our country’s genius for making us all Americans—one nation under God."

To those who oppose the president’s proposal: neglecting to punish those who have entered our country illegally disproportionately to their offenses is not "amnesty", it is simply the right and American thing to do. After they have paid their debt to society, illegal immigrants deserve the right to pursue the same promise all our forefathers sought when they came to this great land—the promise of freedom, prosperity, and a better life for themselves and their posterity.

Hat Tip: Daniel McKivergan

Close Down Guantanamo?

The United Nations Committee on Torture has called upon the United States to close down the Guantanamo Bay detention facility. This only echoes similar calls which have come from other international organizations and leftist entities within this country. Amnesty International labeled Guantanamo as "the Gulag of our times" in its 2005 report and Sen. Richard Durbin infamously compared Americans there to "Nazis, Soviets in their gulags, or some mad regime—Pol Pot or others—that had no concern for human beings" on the floor of the United States Senate.

This most recent call for closure, along with every other one previously made, merits a multiple-pronged response.

First and foremost, there is sparse, if any evidence that detainees are being mistreated in the Guantanamo detention facility. Sure there have been isolated incidents of mistreatment, as is inevitably the case in any detention facility of a nature roughly similar to Guantanamo. But no evidence has come to light exposing any structural or systemic existence of detainee mistreatment or torture. In fact, when detainee treatment at Guantanamo was in a much more prominent position in the public consciousness and discourse multiple congressional delegations visited Guantanamo and every member, even those who had been critical of detainee treatment there, reported that detainees were being treated considerably well.

Secondly, were the United States to close down Guantanamo what would the U.N. Committee on Torture propose we do with those detained there? Surely they don’t suggest we simply drop them off in their home countries, free to once again take up arms against the United States and our allies, the exact reason for which they were captured and detained in the first place? If we were to close down Guantanamo we would have to hold the Guantanamo detainees in an establishment identical in nature and effect to Guantanamo. Closing down the current Guantanamo would only necessitate the need to construct another Guantanamo by a different name.

Finally, instead of badgering the United States about Guantanamo shouldn’t the U.N. Committee on Torture, as well as the international community and the American left as a whole, spend its time addressing actual havens of torture such as North Korea, Cuba, Iran, etc.? If the committee is to justify its name, I am of the opinion that it ought to focus its time and energies on countries where torture is an actual policy, not on free and democratic countries such as the United States who abhor the practice and blush deep shades of red when it is carried out by Americans against national policy and standards of human rights and decency.

This report is just another frivolous waste of time from an increasingly frivolous United Nations.

Hat Tip: John Hinderaker

Comment Response

Comment- "RE: 'The End of Roe'":

i dunno about this selective killing ... if all human life is "valuable" what about the 2400 men and women who we have killed in iraq ... not to mention all those 'valuable' iraqi people we setting up for more of the same ...crazy justification and warped ethics and a deceived public makes for a dangerous society ...

peace & harmony,
elaine

My Response:

-----I have to say I disagree with equating the practice of abortion to lives that have been lost during times of war. On the one hand you are dealing with a procedure which, in most circumstances, needlessly and tragically destroys an unborn human life. Lives lost during war on the other hand, depending on whether that war is justified and/or what cause the lives were lost in the pursuit of, can be lives needlessly lost and wasted or they can be lost in the pursuit of something noble such as the freedom of others and/or the preservation of more lives in the present and future.

-----Who are these "2400 men and women we have killed in Iraq"? If you are referring to the American soldiers who have died there, as I assume you are, then we didn't kill them, the terrorists in that country did.

----"All those 'valuable' Iraqi people we [are] setting up for more of the same"? A statement like that insinuates the Iraqis were living in perfect freedom, peace, and serenity before we went there. They obviously weren't. Iraqis were being tortured and executed by the day under the previous regime, all for the purpose of insuring that regime maintained it's brutal stranglehold on power.

What we are setting the Iraqis up for is the capacity to pacify their own country and to build a stable, representative government which will insure the peace, tranquility, and the preservation of Iraqi rights. Accomplishing this means fighting terrorists who do not want to see such a government arise, which inevitably means that, tragically, brave Iraqi and American soldiers will be killed and innocent blood will be shed.

If we succeed however, those who have given their lives and have shown the last full measure of devotion to the cause of freedom will have done so so that innocent Iraqis will no longer have to needlessly lose their lives and live in a state of terror under a cruel and repressive regime, as they would have had Saddam Hussein been left in power.

I appreciate you visiting my site and sharing your thoughts Elaine. Hopefully you'll find my response illuminating and respectful. God bless.

Revitalizing the Bush Presidency: Possibilities, Realities, & Choices

The president’s low approval numbers have been the preeminent fodder for discussion in the country’s political classes for months, but especially of late. This discussion has primarily focused on two topics: how the president’s numbers have sunk so far and what he and the administration can do to reverse the decline, which has spanned nearly the entirety of his second term.

The consensus answer to the former is multi-faceted. Persistent bad news from Iraq, administration incompetence in reaction to Hurricane Katrina and the Dubai Ports Controversy, runaway federal spending, the empirical manner in which the White house has treated congress and disaffected congressional Republicans (who have thus exhibited little reluctance in increasingly criticizing the president), have all been mentioned as factors; and I would agree that all, more or less, are responsible.

The answers to the latter piece of discussion—what the White House can do to rectify the president’s sagging poll numbers—have been just as varied. Some have suggested a shakeup of the White House staff and cabinet, while others have opined that nothing can be done, the president has lost all power and influence in Washington and will ride out the remainder of his term a feckless lame duck. I dissent from this view.

I believe there are a number of actions the president can take to reinvigorate his presidency and reestablish it as a force in Washington (though I do not necessarily think the White House is not a force today). But before I enumerate these, I must first acknowledge that the task of reinvigorating a presidency in its second term is swimming against the swift and powerful current of history. Over the past century all presidents fortunate to have been elected to a second term have experienced problems; from Roosevelt, to Reagan, to Clinton, and now to Bush. Roosevelt was saved by the extension of World War II upon America, while presidents Reagan and Clinton were able to recover from the Iran-Contra and Lewinsky scandals to leave office fairly popular. The current president can do it too, but it will require several actions, at the minimum.

One of those actions, and in regards to the notion that the president needs to overhaul his staff, would be adding a few outside faces. I agree this would have a positive effect, though not a drastic one, especially within an administration that has presided over some of the most consequential times in recent history. Fatigue and burnout among the president’s staff is a reality. Some new faces, with an added, fresh perspective, would help.

But then again, this is already happening. White House Chief of Staff Andrew Card has resigned and been replaced with OMB Director Joshua Bolten, who has been given a free reign by the president to reshape the White House staff. Mr. Bolten’s scrutiny should be directed towards White House communications, an area within the administration especially in need of attention and alteration.

Following the ‘04 victory the administration phased out of campaign mode, a dire mistake in a long, tough war exhausting upon Americans’ patience, as America’s engagement in Iraq is. In the Camp David planning retreat following the 9/11 attacks, Defense Secretary Donald Rumsfeld suggested the wartime communications effort be run "like a political campaign with daily talking points. Sustaining requires a broad base of domestic support. Broad, not narrow. This is a marathon, not a sprint. It will be years and not months."1.

Why the administration has not followed such an approach is beyond me. A media hostile to the effort in Iraq, and to the president himself, is not going to tell the full story there. They have deliberately ignored the rebuilding efforts, the improvements in Iraqi civil society, the construction of a viable and functioning republic, and the heroism of brave Iraqis and Americans fighting against Islamo-fascist terrorists. It is up to the administration to talk about these aspects; a task they have been mostly negligent in so far.

In terms of American strategy on the ground in Iraq, I by no means urge the president to alter anything. In fact, I believe the current approach should be left intact. Regardless of much of the current conventional wisdom within Washington, the strategy in Iraq is indeed working, slowly but steadily. The progress is there for anyone interested to see. Altering or vacating the current approach would likely suspend that progress and aggravate the tense but stable situation on the ground.

No, it is the administration’s public defense and discussion of the effort in Iraq, not its strategy on the ground, that needs adjustment and improvement. Whether this requires a new communications team I’m not sure, but the White House needs to get serious about it’s wartime communication obligations and employ a sustained public defense commensurate to the consequential nature our effort in Iraq is. The stakes there are simply too high and the cost of failing too great to countenance a sub-par public information campaign.

With all of this said the administration’s problems extend beyond mere communication deficiencies and no communication effort on Iraq, no matter how effective it is, will cure all that ails the president’s political standing. As I already have acknowledged, public apprehension and pessimism over Iraq is the main source of the president’s political weakness, but it is not the only source.

George W. Bush prides himself on having a presidency guided by big ideals, ideals worthy of the attention and advocacy of the president of the United States. In his first term these grand ideals and issues were tax cuts, education reform, and the prescription drug benefit; with the ultimate but unexpected issue of the War on Terror outclassing all. In the second term there was originally comprehensive social security reform, which, because of entrenched interests in opposition to any reform and hyper-partisan demagoguery, flopped.

Following that the administration has adopted no new substantial domestic issue in which to undertake. As a result, the administration has been largely adrift, stuck on the sidelines and relegated to responding to events and circumstances instead of shaping them.

To rectify this, I make a few suggestions. First, complete the last real issue remaining from the president’s first term: permanent extension of the tax cuts. Accomplishing this will have two positive effects, at the very least: it will insure the continued health of an already strong economy and it will remind conservatives, who may be currently disenchanted with him, why they supported him in the first place and why he and Republicans, despite their flaws, are better than the alternative. After all, does anyone really wonder what Democrats, who are openly proud of their opposition to lower taxes, would do to the Bush tax cuts if they were in power?

Thirdly, the president needs to find one or two domestic issues in which to support and promote. One possibility is publicly pressing the importance of confirming his lower-court judicial nominees. Robert Novak has documented the senatorial inaction on many of the president’s nominees, and a little presidential publicity on the issue is what is needed to alleviate this. The state of the judiciary is of high salience among national conservatives and is a sure political winner, for the president and Republicans. More importantly, the judiciary is in need of more judges who adhere to the constitution and it is incumbent upon the president to do what is necessary to see that action is taken on his own judicial nominees.

Other issues the president could take up are tax-code reform and health savings accounts. Currently our tax-code is a monstrosity of a headache, as hours and money are wasted simply trying to correctly fill out tax returns. Simplifying the code would relieve a substantial burden upon the American economy.

In regards to health saving accounts, a little free-market reform is exactly what is required to lower the costs of health care. When consumer choice is entered into the equation, costs decrease while quality increases.

Arguments like these, expanded upon of course, are the types that the president should be making repetitively.

------------

I would like to end in much the same place in which I began. The prospect of reinvigorating a presidency in it’s second term is daunting, given historical precedent and contemporary circumstances. The president may very well enact all the measures I suggested and still experience minimal improvement in his public popularity. The situation in Iraq, far more than any other issue, will ultimately determine public perception of the president.

Though it improves over there by the day, inching closer and closer to viable democracy, the American public’s mood continues to sour. At this point, barring some unforeseeable breakthrough or development, this trend is likely to continue. As long as there is a substantial American presence in Iraq Americans’ dour outlook is likely to persist and the president’s popularity is likely to wallow in the low thirties or forties. Staying the course is and will be politically costly.

The only question then becomes whether the president is willing to trade political popularity for persistence in Iraq. Given the president’s tendency, for better or for worse, to ignore the ever-changing winds of political pressure, I believe it is clear that it is a price he is ready to pay, and has been paying. The right thing to do is not always the popular thing to do, but that does not mean it is not worth doing. This fact the president understands, and for that I profoundly admire him.

If approval numbers in the low thirties are the cost of staying the course and finishing the job in Iraq, then so be it. It is worth it.

1. Woodward, Bob (2002). Bush at War. New York, NY: Simon & Schuster.

RE: "The End of Roe"

Before I respond to Mark Noonan's recent post let me begin by restating my own views on abortion. I am generally pro-life. I oppose abortion except in cases of rape, incest, or in instances to save the life of the mother. Every human life is valuable, no matter what circumstances the child may be born into. The practice of abortion robs each of it's victims of their right to life and the world of their unique talents and gifts. I believe a woman should be allowed to receive an abortion in the circumstances I listed above because I cannot, in good conscience, compel a woman to carry to term a pregnancy she had no choice in creating; nor can I compel a woman to give up her life in order to carry a pregnancy to term.

In regards to Mr. Noonan's post, I believe he makes some valid observations on the American public's fallacious understanding of the Supreme Court's landmark Roe decision and it's meaning and application. In his analysis of the data he discussed however, he makes some comments I find incendiary and excessive:

[Y]ou have to be a real, genuine, God-forsaken barbarian to think that abortion on demand is the correct course of action (heck, that is an insult to barbarians, actually); most Americans probably wouldn't imagine that the Supreme Court of the United States would rule that abortion is something that can happen any time for any reason whatsoever...I mean, think about it: what kind of inhuman SOB would do such a thing?

Abortion is a mostly objectionable, always tragic practice; but to classify anyone who supports abortion on demand, as extreme as they may be, as a "God-forsaken barbarian" is over the top. This form of rhetoric does a disservice to the pro-life movement and diminishes those who purvey it into a position equivalent to the most extreme abortion on demand proponent. It poisons the tone and substance of political discourse. Say what you will about abortion on demand proponents, they believe and support what they do not because they are barbarian or uncivilized, but because they, in good conscience, believe it is the most ethically tenable position to hold.

Moreover, this type of rhetoric is a repellant to moderate, mainstream Americans who are uncomfortable with abortion but acknowledge there are certain circumstances in which it's exercise is justifiable. Not many people will seriously listen to an individual who derides those he strongly disagrees with in such terms, and it may ultimately turn those still undecided away from the pro-life position.

If we are to have a mature and civil national discussion on abortion this type of over the top bombast needs to be restrained. Mr. Noonan is well within his right to freely express views such as these, I do not seek to deny him that. If given the opportunity though, I would advise him to more carefully and artfully select his words when discussing abortion and those with whom he disagrees, for all of those reasons I highlighted above.

Iraq Takes Another Step

If it had not been already, the notion or claim that Iraq has descended into civil war was dispelled once again today by the appointment of a new prime minister, agreed to by both Sunni and Kurdish parties. The new prime minister will have thirty days to form a new government. A new speaker for the parliament and two deputies were also selected, along with the reelection of Kurdish President Jalal Talibani.

Though finding consensus on who will fill posts in the most significant ministries is likely to cause as much tension as finding a prime minister was, the fact that Iraq is making slow but steady progress is irrefutable. The next step in forming the nation’s first constitutionally formed government has been made, Iraqi security forces grow stronger and more experienced by the day, the economy is growing, and Iraqi civil society continues to develop. Sectarian strife and violence does exist, no one denies that, but exceeding that, at least at this point, is a broader desire within Iraq to keep the nation on the path towards secure democracy. There is no civil war, not now, because the Iraqi populace and it’s leaders have not allowed one.

On the Immigration Debate

The ongoing national debate over immigration has not been, as so many issues are, one of right vs. left or Republican vs. Democrat, but one between two diverse elements within the Republican Party. On one side you have the enforcement crowd, what I would say comprises the majority of the party. This wing is primarily interested in stronger border enforcement along the Mexican-American border and is intensely opposed to any amnesty, real or perceived, for illegal aliens currently within the country. On the other side are those Republicans, mostly the president and free marketers, who stress the importance of immigration to the country and the economy and support the enactment of a guest worker program.

As is always the case, political considerations are competing with substantive ones. The enforcement crowd points out that border insecurity is a major concern among rank-and-file conservatives and failure to address the situation will result in depressed conservative turnout in this year's mid-terms. Those supporting a guest worker program counter that an anti-immigration perception will be fatal to the party's chances in November and will reverse the inroads the party has made within the Hispanic community and thus jeopardize the party's majority status.

While the prospect of disenchanted Republican voters staying home in the fall is real, immigration has always been fool's gold for the Republican Party. Making the issue the centerpiece of any Republican campaign will ultimately repel more Hispanic and swing voters than it will attract conservative ones. Pete Wilson's disastrous Proposition 187 in '94, which helped him win re-election but led to minority status for the Republican Party in the Golden State since, serves as compelling evidence of this.

Substantively, the matter is complex and the task daunting. No one disputes that the situation along the border is, as of now, unacceptable. The millions of illegal aliens now residing within the United States constitute millions of undocumented individuals whose connections and backgrounds are unbeknownst to us. This is a tangible security concern, and the threat of an al-Qaida or terrorist operative crossing the border and invisibly entering the country is a very real possibility.

In trying to find an avenue to alleviate the border situation several interests have to be weighed. For one, what to do with those illegal aliens currently in the country? I agree with the enforcement crowd that these individuals should not be given simple amnesty; the law should not be altered to respect those who do not respect the laws of this country. With that said the idea of deporting all those who have illegally entered the country is logistically impossible. Moreover, they came here for the right reasons: they saw America as the "shining city on a hill" and place of opportunity that we as Americans have always prided our country in being. Simply deporting the millions of immigrants currently in the country would send the message that America is closed for business to all of those who come here seeking new opportunity and a better life.

The only avenue left then is something less than full deportation but still punitive in nature; a fine perhaps.

In regards to preventing more individuals from crossing the border illegally, simply increasing the amount of border security personnel or building a wall will not cut it. Increasing security personnel might help relieve some stress along the border and help re-enforce the over-stretched personnel currently there, but I shudder to think what kind of deleterious symbolic effect constructing a wall along the entirety of the American-Mexican border would have. The simple fact of the matter is that we will never have sufficient enforcement personnel along the border, unless of course we're interested in maintaining a permanent military force of some kind there. The economic incentive to cross the border is currently too much for any beefed up border security effort to overcome.

The only way to tangibly rectify our border problem is to alter this so the incentive then becomes to come here legally. A guest-worker program, whether it be the president's version or some other, is about the only solution to the problem, at least the only one I am able to envision. Those who come here legally have to wait in long-lines and go through an entire process to gain citizenship or a green card. The process to legally gain entry into the country needs to be expedited and a means in allowing workers from Mexico to come here temporarily so they may earn some money for their family back home, as many come here to do, should be created.

If a tenable solution is to be achieved we must not only increase actual security along the border, but also create new incentive for Mexicans workers to come here legally as opposed to illegally. Granted, creating and enforcing a guest-worker program will be a bureaucratic headache and a daunting challenge. However the question is, would it be any harder to maintain the current situation, which has been impossible to maintain? Something has to change, and the only way to really change the border situation for the better is to not only increase enforcement there, but to de-incentivize coming here illegally which will, more than anything, prevent hordes of illegal immigrants from crossing the border illegally.

Bi-Partisan Panel on Iraq

Any reasonable individual can see the congressionally-christened bi-partisan panel to examine the situation in Iraq for what it is: a gratuitous publicity stunt and a disingenuous and cynical ploy veiled as a serious attempt at assessing the situation in Iraq.

What can this panel possibly reveal about the circumstances in Iraq that would be of any value? Perhaps if it were created in the interest of developing an honest and objective assessment, tasked to do so by a body interested and serious about receiving one, it’s mission would be of some value. But this is not the case. This is a panel crafted by a hyper-partisan body in a hyper-partisan atmosphere whose findings, as worthless as they undoubtedly will be, will be distorted to fit partisan interests.

If congress is serious in ascertaining the state of circumstances in Iraq, instead of simply trying to politically profiteer off of the issue, it can ask the military leaders who are currently leading and executing American operations there. They are the ones capable of providing a competent, valuable assessment, not retired secretaries of state and former congressman.

Hat Tip: Paul Mirengoff

For the Line-Item Veto

Progressing (or regressing) in the direction of the Dodo bird are congressional legislators who responsibly administer the nation’s finances and exercise fiscal prioritization with the federal government’s abundant, but not unlimited resources. In the unending effort to garner public support and political advantage for the next election, legislators spend excessively for short-term political gain, to the detriment of the nation’s long-term financial health.

Of this both parties are guilty, and there is little will within the prevailing political culture in congress to desist the profligate spending so many of it’s members indulge in, largely for their own political and parochial self-interest. The most recent illustration of this is a $1 billion subsidy for home-heating bills, energetically but ultimately ineffectively opposed by Sen. Tom Coburn, who in his opposition acutely stated "there is very limited authorization in the constitution for us to be paying the heating bills of people in this country." That may be so Sen. Coburn, but it sure is politically advantageous with the folks back home in an election year.

With no apparent legislative recourse to curbing excessive spending, and the prospect of presidentially vetoing entire bills because of exorbitant pork located on it’s fringes unappealing, the only viable tool left is the creation of the line-item veto.

The president briefly possessed this tool in the mid-nineties, but the Supreme Court ruled it unconstitutional shortly thereafter. That nullified version allowed the president to veto certain portions of spending bills and not others. Congress could override these vetoes, individually, with a two-thirds vote in each house (as has always been the case under the constitution with every presidential veto). This version essentially extended the president’s power from the ability to veto a congressionally-enacted bill in it’s entirety to the ability to veto particular aspects of a spending bill without having to reject the whole.

The new version proposed by President Bush gives the president the ability to designate certain provisions of a spending bill for congressional reconsideration. Both houses, within a timely manner, must then uphold or rescind said provisions by a majority vote without the ability to amend. It is not a "line-item veto" so much as a presidential directive to congress to reconsider.

Though I don’t agree with the Supreme Court that the previous version was unconstitutional (see Section III of Justice Scalia’s opinion in Clinton v. City of New York 524 U.S. 417 {998}), and I would prefer that version over President Bush’s, I see the president’s proposal as one of the only viable means possible in checking the irresponsible culture of profligacy in Washington.

I am by no means suggesting the line-item veto will be a magical silver bullet. For it to be effective there must be 1) a president willing to single out needless and wasteful spending provisions and 2) a congress willing to follow the president’s lead and rescind spending it had recently approved. Satisfying one of these requirements, let alone both, will be tough, for the same perpetrators and creators of any fiscal waste will be the ones charged with rescinding it.

But with all that said, the unitary power of the presidency is probably the only efficacious tool in slashing the various pet projects individual legislators smuggle into legislation (neither house itself has any means at it’s disposal to discard earmarks for legislation without rejecting the entire piece of legislation). In this light, presidential singling-out of certain spending provisions for congressional reconsideration will bring to the public forefront gratuitous earmarks which would have previously gone through literally unnoticed. The line-item veto will, as The Washington Post stated, "spotlight earmarks and the corruption that can come with them." Hopefully anonymous and virtually invisible earmarks will disintegrate under the sheer embarrassment of public exposure.

If we are to drastically overhaul the budget however, an action long overdue, congress is going to have to alter the very culture it operates in. The line-item veto is only a treatment to all that ills congress and Washington, not a cure. Either the current stewards of congress must put the nation’s long-term interests above all else or Americans must elect ones who will. There is only so much minor procedural remedies can accomplish.

Hat Tip: John Hinderaker

RE: "Iraq is Lost"

In a startling act of pure Hagelism, conservative icon William F. Buckley elementarily labeled the American project in Iraq a failure. "Our mission has failed because Iraqi animosities have proved uncontainable. The great human reserves that call for civil life haven’t proved strong enough."

Problematic for Mr. Buckley’s assertion is the shallow foundation he lays in supporting it. He cites a man-on-the-street interview of a Sunni merchant published in The New York Times, warranting the obvious response: would you expect the average Sunni to say anything else, given the perch of power America knocked them from in deposing Saddam Hussein? Army Lieutenant Colonel John M. Kanaley, currently stationed in Iraq, opined that the "same interviewing technique would have produced the same result from Berlin in 1945."

Mr. Buckley’s evidentiary support grows only more questionable. Supposedly the anti-American denunciations of Iran’s fanatical and deeply belligerent president further elucidate America’s failure to pacify sectarian hostilities in Iraq. In fact, they elucidate nothing. Democracy in Iraq threatens the theocracy in Iran, and it is no secret that Iran has been actively engaged in subverting Iraqi democracy. That the president of Iran would be condemning America’s mission there should be of little surprise. Further, the statements of a man who has denied the Holocaust ever occurred and who expresses a desire to wipe Israel off the map should not be relied upon as a factor in determining America’s performance in Iraq. I’m surprised an esteemed intellect such as Mr. Buckley has.

Beyond his shaky support Mr. Buckley’s thesis and conclusion are questionable. His claim that Iraqi animosities are "uncontrollable" is dubious. The Samarra bombing was not the first time a Shiite shrine has been targeted by terrorists, and it won’t be the last. It has been the strategy of al Qaeda in Iraq all along to incite civil war and, though sectarian motivated attacks have produced spells of intermittent sectarian violence, civil war has not transpired, at least not yet. Iraq’s political and religious leaders have proven themselves to be remarkably restrained and patient, and the various popular demonstrations for peace in Iraqi cities and towns are indicative of a broad desire within the country to overcome violence and murder and continue on towards a viable democracy and peaceful nation.

Mr. Buckley’s mistaken assessment is not collaborated by circumstances on the ground, but instead reflects the perception of Iraq the mainstream media has decided to cultivate. The media coverage of Iraq has employed a, in the words of Victor Davis Hanson, "if it bleeds, it leads brand of journalism", which highlights "the severed head in the street over the completion of yet another Iraqi school." America sees only an Iraq full of terrorism and sectarian strife, and the public’s mood on Iraq, as well as Mr. Buckley’s, is thus explained.

American soldiers on the ground remain optimistic as the training of Iraqi soldiers continues. As Mr. Hanson described circumstances on the ground, soon "ten divisions of Iraqi soldiers, and over 100,000 police, should be able to crush the insurgency, with the help of a public tired of violence and assured that the future of Iraq is their own".

America has not lost, and our mission in Iraq has not failed. Progress continues to be made in the country, and each day brings the Iraqis closer to the point when a viable and authentic government will emerge and Iraqi forces will be able to fully and effectively engage the enemy. Now is not the time to succumb to a defeatist mentality predicated on an incomplete perspective provided by shameless media coverage. I am surprised and saddened Mr. Buckley, a man whom I respect and admire, has done so.

RE: "The Judging Process and the Judge's Personality" Frank, Jerome

Frank, J. (1930). Law and the Modern Mind. Coward McCann, Inc.

I accept the assertion that stimuli, prejudices, and biases, both conscious and unconscious, are unavoidable in the legal process and, more specifically, in judicial adjudication. An intellectually honest judge, one committed to the ideal of simply applying the law as written, will overcome this however.

Allow me to elaborate. When I first hear of a case and the circumstances and questions it presents I usually develop an opinion, or conclusion, on the spot, without contemplation or due research. This conclusion may be moral or political—outside of the law and without regard for it—and/or based on prior knowledge or conception of the law. If after further examination however, provided I am interested or motivated into going deeper than initial prejudice, I discover legal facts which contradict my opinion, or insufficient legal justification to bear the weight of it, I will reverse my opinion and/or reach or concede to a conclusion opposite of my personal inclinations. I will do this if I am at all intellectually honest that is. Not so much with others but with myself.

As evidence of this I offer the example of the federal ban on partial-birth abortion and it’s questioned constitutionality before the courts. On personal grounds I support the bill and it’s purpose. I oppose abortion in general but the practice of partial-birth abortion strikes me as especially abhorrent. It is a brutal and gruesome practice antithetical to the ethical and moral standards I believe we as a nation should hold. This is a personal moral or values judgment—a personal inclination if you will.

On deeper inspection and contemplation however I realized I had to set aside my personal prejudice and accept a justification which contradicted it. The federal government is one of limited and enumerated powers, with all powers not given to it in the constitution, or not denied to the states, belonging to the states. Nowhere in the constitution is a power granted to the federal government allowing it to venture into the issue of abortion. It is a state issue, sovereign of all federal interference.

Though I think the federal partial-birth abortion ban to be a good idea and a good law, it is not the federal government’s law to make. As a result the only honest avenue left for me to take is to espouse the opinion that yes, the law is unconstitutional.

My personal opinions and inclinations, nor the personal opinions and inclinations of any man, are not supercedent to the law. Assuming our judges are not only cognizant of this, but abide by it, than conscious and unconscious stimuli, prejudices, and biases are not a problem. Guided by this principle the rule of law will continue on.

RE: "The Democrats' Real Problem"

Mr. Dionne is off base in his editorial of this past Tuesday. His general thesis, that "Democrats' real problem is that they have failed to show that their critique of the Republican status quo is the essential first step toward an alternative program" is slightly askew, for it is based off of a false premise. The public does not see a "Republican status quo" so much as they see a larger and heavily political status quo in Washington, cultivated by both parties and deeply odious to the prevailing public sense. A recent Battleground poll demonstrates that the public places a pox on both houses, not Republicans or Democrats alone. 92% of Americans feel lawmakers in Washington place partisan politics above all else and 64% believe both parties are equally responsible for the current problems facing congress in regards to lobbyist reform. Democrats will be hard-pressed to run against the status quo on a national basis when the American people find them equally complicit in creating and propagating that status quo. "The bottom line", says Republican pollster Ed Goeas, "is that the mood of the electorate is not an anti-incumbent mood, an anti-Democratic or anti-Republican mood, but an anti-Washington mood." He is exactly right.

Prior to the statement of his thesis, Mr. Dionne mis-characterizes and misinterprets the substance of the '94 mid-terms, discounting the necessity of "offering a clear program" to achieving broad victories in a national election. He correctly states that in '94 "it was disaffection with Bill Clinton.....which created the Republicans' opportunity", but he does not follow this valid argument to it's valid and logical conclusion. Public dissatisfaction with President Clinton created an atmosphere where the public was open and receptive to "a clear program" from Republicans, which Republicans provided. Republicans could not have seized control of congress on public dissatisfaction with President Clinton alone however. They had to complete the sale of a clear plan to the American public who, through their dissatisfaction with the president, gave Republicans the opportunity to pitch. In other words, there was a two-step process towards widespread Republican victories that year. Insinuating Democrats can succeed based on President Bush's unpopularity alone without "offering a clear program" of their own is wishful thinking. They may enjoy modest, scattered gains in one or both houses---such is historically typical for the party out of the White House in mid-terms---but not the massive, nationwide gains Republicans achieved in '94.

Mr. Dionne moves on to dropping a few disingenuous assertions typical of liberal critics of the president. He laments the "budget policies saddling our kids with debt tomorrow to pay for tax cuts for the wealthy today." It is not tax cuts which are saddling future generations with debt, but monstrous and rising entitlement costs and profligate federal spending. As one very wise man once said, "we don't have a trillion-dollar debt because we haven't taxed enough; we have a trillion-dollar debt because we spend too much."

Moreover, if we got rid of the Bush tax-cuts federal revenues would increase in the short-term but begin to lag as time progressed. It was the tax-cuts which stimulated the economy in the midst of the last recession and made it much shorter and shallower than it would have been without them. Mr. Dionne seems ignorant of the fact that the millions of jobs created in the last two years and the subsequent growing federal revenues have been predicated on the economic stimulus the tax-cuts provided.

Refusing to stop there, Mr. Dionne asserted that neither Democrats nor President Bush have any "good answer to Iraq." Whether an answer is good or not is subjective, but Mr. Dionne may rest assured that both Democrats and the president have one. Democrats want to get out now while the president continues to execute a policy of supporting and allowing Iraqis to set up their government and nation while training Iraqi security forces to secure their own country. On this front progress is being made. Victor Davis Hanson, a renowned historical scholar and someone far more knowledgeable on the subject of Iraq than Mr. Dionne, says of the situation, "[a]fter visiting the country, I think we can and will win, but just as importantly, unlike in 2003-4, there does not seem to be much of anything we should be doing there that in fact we are not." Iraqis are well on their way down the rocky path to self-sufficiency, terrorism and violence aside. Mr. Dionne is just going to have to deal with the intellectual insult he claims to feel by the president's refusal to vacate a working policy.

Mr. Dionne's general thesis, along with these substantive errors, is intrinsically flawed. Democrat's central problem is not that they have not formed a cogent critique of the Republican status quo, but that the public views them as part of the general status quo in Washington it has grown tired of. If Democrats want to achieve a general, nationwide victory in November they have to change their own course and prove they can change their own churlish behavior and thus alter the culture in Washington. If they do not negligible change in the composition of congress will occur in '07.

Hat Tip: Tom Bevan

On Precedent & Stare Decisis

Reliance on precedent—or adherence to the legal principle of stare decisis—is an integral aspect of the adjudication of the law, and for good reason. Uniformity and consistency, as has often been stated, is the most practical method in insuring consistency, fairness, and the equal protection of the law to all citizens.

Further, seeking guidance from past experience is a completely natural human phenomena. Each individual will, in the course of their day-to-day lives, refer to their own past experiences and/or the past experiences of others when confronted with the necessity of successfully completing an endeavor. As Karl N. Llewellyn has pointed out, "[i]t takes time to solve problems. Once you have solved one it seems foolish to reopen it."

Neither I, nor any other reasonable person denies this. Past experience is not only helpful in solving contemporary problems and challenges, it is a necessity.

What this does not mean however is that precedent or past experience should be blindly followed simply because it is precedent, for such an approach must base itself completely on the assumption that precedent or past experience is always correct, which it surely is not. I would never refer to a past example if I knew, or even suspected that it was incorrect. Neither should a jurist, or tribunal of jurists, follow and replicate a precedent if they know or believe it to be wrong. As important as learning from past successes so that they may be replicated is, so is learning from past wrongs so that they may be rectified. Adherence to bad precedent insures not only that prior wrongs are replicated, but propagated and multiplied into the present and future as well. The re-application of incorrect precedent is, in practical terms, nothing short of adding fuel to the fire.

Those against the reversal of Roe v. Wade on the basis of stare decisis alone would do well to keep this in mind.

RE: "Islamistphobia-Phobia"

Tony Blankley takes umbrage at perceived charges from "free market and other conservative commentators" of nativism and Islamophoiba leveled at critics of the controversial port deal. "With 70 percent of the public in opposition to the port deal, this is as searing a criticism of American tolerance as ever has been hurled from America’s cultural or political opponents over the years. No Soviet propagandist or third-world revolutionary has more stingingly libeled the American people."

Mr. Blankley, a columnist and man of intellect I highly respect, is exaggerating the substance and effect of conservative criticism. Conservatives such as myself, in my view at least, have criticized the rank hypocrisy on the part of liberals, not conservatives, who have opposed this deal yet, as I said in a previous post, "cry injustice" when young Arab males are the subject of greater scrutiny in airport security screening. Conservatives don’t squirm at a limited level of profiling and support a form of it in this prospective port deal and, ergo, are entirely consistent. We believe as a matter of practicality that security threats of a specific terrorist nature are more likely to emanate from Arab males (I believe there is a more likely general threat posed by all young males, of all colors and ethnicities—Jose Padilla and John Walker Lindh bear this out) and, in extension, from Arab countries.

Personally, my main criticism of the port deal’s critics is not that they are motivated by any prejudices or unfounded fears, but they are motivated by un-substantive political concerns (outflanking President Bush on national security or establishing their independence from him). No one seriously accuses the American people and legitimate critics, such as Mr. Blankley, of nativism or Islamophobia. The American people are a tolerant, broad-minded people, and their concerns with this deal are much more substantive and legitimate than the concerns of their leaders in congress.

Hamas & Democracy in the Middle East

One of the issues central to the debate over the war on terror is whether the Middle East is ready for and/or capable of democratic governance. Elements who believe, for whatever reason, the region is culturally inhospitable to democracy, on both the right and left, point to Hamas’ success in recent parliamentary elections within the Palestinian territories as evidence of the tenet that democracy is not the ultimate solution there; it is unpredictable and dangerous in a region permeated with discontent and radicalism and, ergo, may produce leaders openly hostile towards the United States and western democracies.

I reject this conclusion. It is true the Middle East is ripe with discontent and radicalism. But this is why democracy promotion should be America’s policy in the Middle East, not why we should avoid it. Hamas’ success in the Palestinian elections demonstrates only that elections alone do not a democracy make. A democracy is a nation-state with an educated citizenry, one properly disposed to defend their rights and freedoms and to secure the well-being of themselves, their children, their neighbors, and their posterity. It also has certain hallmarks and institutions, which I will enumerate later. Elections are simply a function of a legitimate democracy; a sign, but not proof, that one exists.

Immediately following Yasser Arafat’s death in December ‘04 I and many others believed the years of indoctrination he instigated and sponsored within the Palestinian territories would prevent the Palestinians from forming a legitimate democracy in the foreseeable future. Under Arafat textbooks taught anti-Semitic/anti-Israel propaganda to Palestinian children, dissent was stifled, legitimate news and information was prevented from being disseminated. The Palestinians had been so conditioned to point the blame for their poverty and misery on Israel—not on Arafat’s authoritarian rule, where it belonged—and to support terror as a viable political tool that reversing this mind-set would and will take years.

Hamas’ popularly-endowed majority is no surprise, for it reflects the undemocratic society that Arafat so carefully contrived. With an atmosphere such as this popular elections will always produce men and leaders antithetical to American and other western democracies’ interests.

Democracy, legitimate democracy, is the only solution to this. Fostering the rise of democratic societies in the Middle East will curtail the atmosphere that prompts the democratic ascension of individuals and factions such as Hamas to power. It will also re-cultivate the soil which terrorism finds so fertile. Tyranny fosters poverty and discontent, which in turn fosters radicalism and terrorism. To eradicate radical Islamic terrorism it’s root cause, the fires of tyranny, will have to be extinguished, replaced by a new fire capable of consuming an entire country and region once lit. The birth of democracy within Iraq and it’s effects on it’s neighbors in the Middle East affirm this.

If elections in the greater Middle East are ever to be more than the popular expression of undemocratic societies a democratic culture and a free and open society have to be developed. An open and free flow of information must be allowed. Democratic dissidents must be empowered. Meaningful political discourse must transpire. Tyrants and despots must be de-legitimized and weakened. A free press, an independent judiciary, religious freedom, etc., will have to be established. Then, and only then, will popular elections bear desirable fruit.

Democracy can work in the Middle East, and it must work if the region is ever to cease breeding radical Islamic terrorism. Given the chance and the support it will work, and is working. However, as the Palestinian elections exhibit, popular elections will only reflect a legitimate democracy if the institutions and traits defining one already exist.

American Foreign Interests over Politics Please

There is very little of substance behind the impending port deal with a government run firm from the United Arab Emirates beyond bipartisan and baseless hysteria and political posturing. On the matter of port security the sale will change virtually nothing. The U.A.E. firm will run commercial operations while the Department of Homeland Security will continue to oversee security and inspections, just as it always has.

Moreover, that a company from an Islamic country should not be able to run the commercial operations of various American ports is an amplified version of the type of racial and ethnic profiling Democrats usually condemn. In a Friday column Charles Krauthammer spoke of the fact that the same Democrats who object to this port deal would cry injustice if "a citizen of the U.A.E. walked into an airport in full burnoose and flowing robes, speaking only Arabic" and was given "any more scrutiny than....my sweet 84-year-old mother." The hypocrisy is evident and obvious.

In that same column Mr. Krauthammer provided the only legitimate security concern associated with the deal’s consummation raised so far; the possibility that al-Qaeda sympathizers or agents within the company might, through the obvious cooperation and consultation that will have to take place between the U.A.E. company and D.H.S., become aware of sensitive port security information and share it with al-Qaeda members stationed either overseas or, possibly, in America.

This possibility is not motivating congressional opposition to the deal however; a desire to either, depending on what side of the aisle they are on, outflank the president on national security or establish their independence from him is.

But political motivations should not derail a deal when such an outcome could damage the diplomatic relationship with a country providing valuable assistance in the execution of the war on terror. The president is right to support the deal and would be right in vetoing any legislation which would invalidate it.

Hat Tip: OpinionJournal

South Dakota Abortion Legislation

The South Dakota legislature passed a comprehensive piece of legislation yesterday which, if signed by the governor, would prohibit abortions in all circumstances excluding those performed to save the mother’s life.

Consensus among the punditry fashions the legislation as the next major challenge to Roe. Though I don’t believe anyone can speak to that quite yet, this bill will inevitably spark a challenge in federal court and, probably, a reversal. District and circuit courts are bound by Supreme Court decisions and precedent, which have decidedly frowned upon any statutory restrictions on abortion. If such narrowly constructed restrictions, such as those on partial-birth abortion, are antithetical to the constitution than surely so to is this bill.

Substantively, I would personally oppose the bill’s passage into law. I am generally pro-life and would support a general ban on abortion here in Washington State—provided that bill contained exceptions for victims of rape and incest, provisions absent from South Dakota’s version. I simply do not believe you can force a woman, victimized by either act, to carry a pregnancy to term in which they had no choice in creating.