No matter what one thinks about the rise of Donald Trump, it does make one think—or rage, in the case of our cultural and intellectual elite.
Take Washington Post regular Richard Cohen:
Donald Trump has taught me to fear my fellow American. I don’t mean the occasional yahoo who turns a Trump rally into a hate fest. I mean the ones who do nothing. Who are silent. Who look the other way. If you had told me a year ago that a hateful brat would be the presidential nominee of a major political party, I would have scoffed. Someone who denigrated women? Not possible. Someone who insulted Mexicans? No way. Someone who mocked the physically disabled? Not in America. Not in my America.
After years of dictating what constitutes “my America,” of deciding what is allowed as free speech and free exercise, the U.S. elite is having a hissy fit. Cohen is a bit more fervent than his fellows among mainstream-media progressives and neoconservative TV stars, but he expresses their torment perfectly. They can hardly come up with enough epithets.
Commenting on new polling showing that large numbers of Republicans and independents believe men and women should play different societal roles, even a thoughtful progressive like William Galston can write this about himself and his fellow liberals:
We had assumed that some beliefs had moved so far beyond the pale that those who continued to hold them would not dare to say so publicly. Mr. Trump has proved us wrong. His critique of political correctness has destroyed many taboos and has given his followers license to say what they really think.
Imagine, having the nerve to say what one really thinks in the good old USA!
The new candor in Trump’s wake has even reached progressives. Some of them told New York Times columnist Nicholas Kristof what they really thought when he suggested that the lack of conservative voices on campus was leading to intellectual stagnation on the left:
I wondered aloud whether universities stigmatize conservatives and undermine intellectual diversity. The scornful reaction from my fellow liberals proved the point. “Much of the ‘conservative’ worldview consists of ideas that are known empirically to be false,” said Carmi. “The truth has a liberal slant,” wrote Michelle. “Why stop there?” asked Steven. “How about we make faculties more diverse by hiring idiots?”
It is all almost enough for a conservative to welcome Trump as the Republican nominee for president—almost. He is driving the right people crazy, and in the unlikely case he is actually elected, he might even crack their cultural monopoly over speech.
The dilemma on the conservative side is that if one does not support the comic he is stuck with the crook, or, as even Dana Milbank calls her, Hunkered Hillary. She just cannot tell the truth. She might deep down even be more conservative than Trump, but she will be pushed to the far left by the base and the cultural elite, especially if Democrats take Congress. So she will certainly move the country further down into the social and economic void, while The Donald could do anything.
So, on balance, support for the TV comedian is inevitable, even if it leads to an historic defeat. That is, if he is actually nominated at the convention, which in this crazy year is no sure thing.
But there should be no illusions. He promises not to touch insolvent Social Security, Medicare, and other entitlements. He will enhance protectionism and encourage fellow crony capitalists at the expense of markets. Given his mixed record, social conservatives would gain only by chance, having proven themselves politically powerless. Originalist judges? That is not quite what he promised. On foreign policy, he might put America first, but he also keeps threatening big guys like China and neighbors like Mexico. After Barack Obama’s use of his phone and executive-order pen, it is improbable Trump would not continue the tradition, especially with a likely Democratic Senate, becoming the Americas’ northernmost caudillo.
Well, no one is perfect.
In another sense, it makes little difference in the long run. Both candidates have promised to protect entitlements and open the spending spigots. As the indispensable Niall Ferguson’s Civilization: The West and the Rest makes clear, debt has brought down as many civilizations as has war, indeed more in recent years.
I am the last to deny Ronald Reagan, Margaret Thatcher, and Pope John Paul II credit for undermining the Soviet Union, but (with reservations on many of his other points) Robert Skidelsky’s Road from Serfdom makes a convincing case that the proximate cause was bankruptcy. Debt also had an underappreciated role in the other cultural collapses of the modern era: war reconstruction and open welfare-state spigots prepared the way for the fall of the English and French empires after World War II, and German debt and inflation prepared the way for Hitler. The same can be said for Italy on the way to Mussolini, and even for ancient Rome and Ming China.
Ferguson is most perceptive in demonstrating that the end can come quickly. In disputing Edward Gibbon’s claim of a long decline for the Roman Empire, he argues that the presumed causes—barbarian invasions, epidemics, economic crises, rival empires, and the rest—were pretty much historical norms. Ferguson puts the beginning of the end in AD 406, with the advance of the Germanic tribes across the Rhine and into Italy—which was followed by Rome’s sacking by the Goths in 410, Genseric’s conquest of North Africa’s breadbasket between 429 and 439, and the loss of Britain and most of Spain and Gaul. By 476, Rome was gone, a fiefdom of the Scirii, accomplished in a mere 70 years.
In the modern era, England and France ended World War I as victors with a large slice of the world as colonies. Thirty-eight years later, President Dwight Eisenhower blithely dismissed them as inconsequential and waved them out of Suez. The Soviet Union ended even quicker: From March 1985, when Mikhail Gorbachev was appointed general secretary of the Politburo over a USSR the CIA thought richer than the U.S., to 1991, when Boris Yeltsin ended the attempted Communist Party coup, required a mere six years.
What is the situation for the U.S.? Based on Congressional Budget Office data, Ferguson estimated that U.S. debt could reach 90 percent of gross domestic product (GDP) by 2021, 150 percent by 2031, and 300 percent in 2047. This compares with 175 percent in bankrupt Greece, and it does not include state debt or the unfunded liabilities of Medicare, Social Security, and other government (or government-insured) pensions.
In my last book, I raised a comparison between America and Weimar Germany with great trepidation, fearing to appear overly melodramatic. Now, with one U.S. political party dreaming of recreating an already-failed European democratic socialism and the other explicitly repudiating its traditional limited-government policies, that prognosis seems prophetic. As Ferguson noted, all it takes is one wild circumstance to start a run, even on the world’s only true financial power.
It could take years, but “one day a seemingly random piece of bad news, perhaps a negative report by a rating agency,” could reach beyond the experts to panic the public at large or spook investors abroad, where half of U.S. public debt resides. One-fifth is owned by a fearful China alone, which already has referred to the Federal Reserve’s “quantitative easing” as “financial protectionism.” A worldwide panic over U.S. debt would have no backstop.
In the U.S., sufficient liabilities are already on the books, and both major parties are determined not to disturb public or ideological blindness. Hillary Clinton promises more, and should the Democrats win control of Congress as well, she could easily plunge the country joyfully into bankruptcy. In the less likely case of Trump’s election, policy becomes totally subject to the leader’s whims, which almost certainly do not include austerity—so even with good appointees (he is the boss), the best one could expect would be some rearguard blocking from the House.
Traditional, limited-government conservatives would be left with the small consolations that their understanding of the fundamental weakness of human nature had proven correct, that no battle is forever won or lost, and that their ultimate goal is in another world anyway.
Trump dominates the moment, but Konrad Adenauer may be the better long-term guide for the right. The Christian Democratic legislator survived the Weimer economic crash and endured a decade in and out of jail under Hitler, after which he was still able, at age 73, to become the conservative chancellor of the Federal Republic of Germany—and to serve for the next 14 years re-institutionalizing markets, sound financial policies, moral traditions, democracy, a fair and restrained judiciary, meaningful federalism, and economic prosperity.
Not a bad survival vantage point.
Donald Devine is a senior scholar at the Fund for American Studies, is the author of America’s Way Back: Reclaiming Freedom, Tradition and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term.
Reflecting on the coming nomination of Donald Trump, former Ronald Reagan associate Peggy Noonan hits where it hurts: “A large portion of the Republican base no longer sees itself as conservative, at least as that has been defined the past 15 years by Washington writers and thinkers.”
The no less perceptive progressive intellectual William Galston described the nomination of Trump as “the third major revolution in the Republican Party since World War II.”
Noonan believes Trump’s success was in reaction to George W. Bush’s attachment to neoconservatism and Barack Obama’s to “international climate change agreements and leftist views of gender, race and income inequality,” both of which ideologies came across as indifference to real people’s problems. Trump represented himself as being “on America’s side,” humanizing both abstractions and eschewing traditional ideologies, standing against both obviously failed alternatives.
It has been apparent for years that the problem is more basic than Trump. It is mostly us. Three years prior to running for president, Trump was introduced as a compatriot at the premier Conservative Political Action Conference, after making a $50,000 donation. Trump was on Fox and Friends Monday mornings for several years, received extended exposure from his 30-year friend on the O’Reilly Factor, and appeared on Hannity 41 times. Of course, that is dwarfed by the $2 billion of free TV Trump received from the mainstream media, including Fox, during the nomination process (three times that of second place Hillary Clinton). But his airtime started with presumed conservatives.
Conservatives have spent the last eight years complaining about President Obama with slogans and personal invective, but without answering populist angst. To some extent this was rational, since most people do not have time for long explanations and therefore could not have been convinced by sophisticated alternatives anyway. A successful message would require newsworthiness and time. There was an opportunity for Congressional Republicans and conservative leaders to make news. If they used Obama’s whole eight years, citing constant examples of government failure and striking alternatives, they might have been able to make a message sink in.
Every day the Washington Post provides the material, bursting with stories about government programs that do not work. People avoid this because they want to believe that inefficient government is caused by a bad person or the wrong party. Only constant examples to demonstrate a pattern of failure can overwhelm this prejudice. Citizens knew the status quo did not work, but it required examples to prove the larger reality that the welfare state itself was the problem. Unfortunately, both conservative politicians and policy leaders split into two camps, those who wanted to govern and those who wanted to send messages. The former were playing into Obama’s hand and the later played to Fox News and talk radio rather than to the unconvinced electorate.
It’s understandable that public officials want to be part of the governing process. Voters want to hear that all is right or at least that it can be easily fixed, and are encouraged by a simplistic and unsympathetic media seeking advertising revenue, which very much includes Fox. Public officials were easily coopted. However, those opposed to a governing strategy in favor of messaging also proposed too-easy solutions that linked them to a failing status quo.
The one exception was Obamacare. It is the one example where a majority is still basically on the Republican side. Even there much of the argument was too personal against Obama and alternatives were not provided or explained. On other policies, the failure was that virtually all Republicans in Congress and their support systems insisted on “governing” when the president had no intention of cooperating with them. Governing becomes a co-conspirator with the president when it expects that a tweak here and there will make things right.
The public is not so easily fooled. The result was eight years of losing battles against Obama without educating the public or even the base, which was promised success and then inevitably disappointed. Trump then picked up the pieces. Even if Trump were not the nominee, the likely result would still be eight more years of tweaking at the edges, and failure. With him, Democrats may gain control of both houses of Congress and force both “governing” Republicans and conservative revolutionaries into total policy irrelevance.
The progressive welfare state is now firmly established and will become more so with the election of either Hillary Clinton or Donald Trump. Centralized government, however, is dead on its feet and nothing Trump or Clinton can do will address the fundamental problem: Washington cannot manage the complex morass now and both candidates’ solutions for doing more will only make things worse.
This actually presents a great opportunity for conservatives. It is time to learn from Trump what politics is supposed to be about—to have a message and know how to communicate it. The difficulty is that conservatives no longer have a coherent message and even if they did, they think policy position papers are how to communicate one.
Conservatives who do have a message are split across the board: reform conservatives who think better national programs will make it all work and federalists who think only decentralization will change the dynamics; protectionists who fear trade and those who consider it essential to world prosperity; believers in markets and those who believe in central regulation; those for the U.S. as world policeman and those for a limited role; those who would have the Supreme Court force secular “freedom” on provincial rubes and those who find religious freedom an absolute right. There is no coherence at all.
First, conservatives—or at least some of them—must agree on a new synthesis. Once there is some coherent message, Trump can teach conservatives a great deal about communications: act like one believes what one says; do not back down to get universal approval; act boldly with some irreverence and good humor; smile or even laugh.
Then, assuming markets are part of the new synthesis, begin with the minimum wage. It is the Democrats’ number one priority even though most of its intellectuals know that too high a rate puts people out of work. Trump supports it too. How about a Trump-like teachable moment? Up his and Hillary Clinton’s $15 an hour minimum to $100 or $1,000 to really help folks get higher wages and higher unemployment. Call them cheap and heartless when they demur.
Or how about confronting the universal solution of “jobs”? Take some of the enormous funds otherwise wasted on election ads and have the Koch brothers bet Trump a million dollars for each U.S. job lost or gained if he limits trade?
Or challenge Trump or Hillary on why anyone would believe their 76th jobs program will work when none of the previous 75 did? Make them promise to resign for making false promises if the jobs do not appear after two years in office.
Or demand to know why the uncaring candidates are not being bold enough to propose mandatory single-sex open bathrooms and showers for all?
Finally, demand elimination of all federal taxes. Economics Professor Dwight Lee proposes collecting no national taxes but requiring that states give 25 percent of every dollar they raise to the Feds (to be elaborated in a forthcoming Mercatus Center publication). This would solve the Articles of Confederation problem that the states did not give funding to the national government and would shift most federal programs back to the states where the Founders believed they belong. It would be popular and drive even Trump crazy.
Critics need to get into the flow of the new Trump world and play the game. The new rules are not about governing—but call for winning supporters joyfully with better ideas.
When conservatives are neither snarling nor wimpish but having fun with politics, the public will get it. That will allow time to quietly re-do the message and build a new movement on ideas and good humor. This way conservatives can prepare for the day when Trump or Hillary fails, since voting against either possibility is a sucker’s bet.
Donald Devine is senior scholar at the Fund for American Studies, and the author of America’s Way Back: Reclaiming Freedom, Tradition and Constitution. He was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term.
Sheldon Richman has just given readers of The American Conservative a superb review of McGill University Professor Jacob T. Levy’s very important new book Rationalism, Pluralism and Freedom—but both are so good they require further elaboration.
Richman provides an insightful presentation of Levy’s argument that two seemingly opposed “strains” within liberalism, which he calls rationalism and pluralism, are actually both necessary to achieve freedom. Rationalism uses expertise to develop centralized laws that promote justice and positive freedom for society. Pluralism prefers free associations that develop multiple choices for their members, promote their various group interests, and act between the individual and state as barriers against government control of their freedoms.
Pluralism developed first in the Middle Ages but was eventually overwhelmed by the 14th-century divine right of kings. These state claims to total power were confronted by appeals to ancient constitutionalism to restore past group rights, culminating in the powerful writings of Montesquieu, who Levy sets as the first true pluralist. His opposite founding rationalist is Voltaire, who viewed these intermediate associations as the source of the ignorance and superstition that frustrated the social progress and freedoms implemented by the rational “enlightened absolutism” of Louis XIV, Frederick the Great, and Henry VIII.
This progress was thwarted by the French Revolution and Napoleon, but ultimately was superseded by the rise of the modern liberal state under the two “unarguably” modern liberal theorists, John Stuart Mill and Alexis de Tocqueville. The former is set as the archetypical rationalist liberal and the latter the ideal pluralist. By the latter 19th and 20th centuries Mill’s rationalist view had won the day with nation-states dominating their parochial associations to produce the rationality, law, rights, and freedoms of the modern world.
Levy writes that his “personal preference” was for the pluralist side but concedes these same groups can limit their members’ freedom through their internal rules and can lobby outside to have them inculcated as state policy. Therefore, rationalists like Voltaire had good reason to fear powerful plural associations like the church being allowed to provide education, for example. Indeed, both modern secular France and religious India have justified state control of education as a means to preserve a liberal order. The state likewise had reason to fear the family inculcating non-liberal ideas (about women for example). On the other hand, it is clear centralized state rationalism can go too far in restricting these freedoms.
After a scrupulously detailed history of both strains, Levy concludes that while the two advance freedom, both the central state of modern rationalism and the intermediate associations of classical pluralism have internal dynamics that “are more likely to threaten freedom than to protect it.” While the two are logically irreconcilable, they each need the insights of the other. Neither “complete congruence” with general state norms nor full group autonomy work. A “more nuanced” position is required.
Levy’s solution was to set associational freedom as the norm within general rational state oversight but to allow certain exceptions to group autonomy: first for size and extent, such as in a company town, the Mormons in Utah, or Catholic and Orthodox Christianity in certain places; and also for group actions that could undermine the “basic structure of society,” such as families perpetuating inequality, public accommodations denying access to outsiders, and private schools and housing covenants frustrating justice (as in the South to escape desegregation).
Richman was even more favorable toward the pluralist strain but conceded Levy made a powerful case for the necessity of both. As important as pluralist freedom is, it sometimes needs to be restricted by higher authority. He decided that if both are essential, the only solution can be “eternal vigilance”—especially against the much greater power of the centralized state. But he mischievously concluded by adding, “But how feasible is that?”
Richman wisely leaves it there, but there is more that needs to be said.
Strains of What?
Levy spends his final chapters arguing the impossibility of synthesizing the “genuine tension” between plural freedom of association and the rationalized freedom that requires the “possibility of freedom being enhanced by outside intervention.” The only solution is “living with a degree of disharmony in our social lives.” Yet, Levy implicitly accepts that some type of synthesis exists by assuming both strains exist within the whole he labels “liberalism.”
One can agree with him that Hegel’s synthesis—in the sense of absorption of competing theses into something fully new and rational—can only be achieved by defining the distinctions away. But this is only one understanding of synthesis, which can also be understood as a tension between certain values that are only reconcilable when one is forced to make a choice in concrete situations demanding a decision, rather than in Hegelian absorption. But does even this degree of cohesion exist between the presumed two strains of liberalism?
Consider Levy’s argument against pluralism’s claim that possible abuses of power by leaders over members are tenable as long as “exit” is available from such restrictions on freedom. However, not only do large size and geographical extent restrict exit, but decisions originally free can accumulate to allow “no place to go to exit the groups into which they are born.” One generation can freely choose, but its children may be trapped if the cult becomes very popular over extensive territorial ground. His main example is the medieval Catholic Church, although in another place he also pictured the Church as a complex institution with some means of exit.
Or consider the family, which presents an even greater restriction on exit since young children are unable to leave at all or to escape the benefits or disadvantages transferred from generation to generation by its strengths and weaknesses. Education or its lack has the same consequence. The poor, biologically limited, marginalized, or broken child has little “exit” across generations. The same applies to many other areas of life.
What is left of associational freedom when the exceptions are to religion, family, education, property, housing, and public accommodations? Using these examples to legitimize state control of group freedom simply reprises Plato’s Republic.
There is much positive about Levy’s insights into freedom. But at bottom his insistence on two strains does not work.
Consider Levy’s term, “rationalism.” Richman basically treats it as a synonym for rationalist centralization, as opposed to plural decentralization, both ranging along that one-dimensional orientation. It is easy to overlook, but Levy emphasizes at the very beginning that he uses the term rational as Max Weber did, in the sense of “bureaucratic rationalization.” He even warns the reader to keep this meaning in mind while reading the book. But why not use the term rationalization rather than rationalism, which to some extent misleads even Richman?
Even more confusing is the concept that holds his whole project together, the term “liberalism.” He concedes that even using the word liberalism is disputed until the time of Mill and de Tocqueville—but then he traces the proper use of the term back to Montesquieu’s pluralism and Voltaire’s rationalism anyway. Startlingly, he even says that “rationalism” and “pluralism” exist within conservatism and socialism too. So what makes these liberal conceptions?
Although he modifies this somewhat, Levy concludes that terms like liberalism, conservatism and socialism are “nothing but a party platform.” The “political program of liberalism is one about how to direct and limit the power of the modern state in ways that are only comprehensible after the state has taken form, the wars of religion have ended and the attractions of commerce came into focus.” Therefore he does not “think it makes sense to talk about liberalism before about 1700,” which he identifies with “the early modern Weberian state,” “all of which makes sense only in a world of strong executive and security capacity.”
Two Incompatible Views
So “liberalism” is associated with the rise of the Weberian nation-state. But Levy does not leave that impression unqualified. Therefore, he prefaces this discussion with a “prehistory of liberalism” and its “tremendous proliferation” of independent organizations such as universities, cities, the papacy, bishops, regional churches, monasteries, and other independent organizations such as guilds and feudal institutions and independent military orders, starting with the Cluniac reforms and blooming after 1050. On the other hand, he concedes this is the prehistory of conservatism too. So why is this pluralism considered a strain of liberalism at all?
Levy’s personification of rationalism, J.S. Mill, describes in On Liberty “regularly” allowing his “permanent interests as a progressive being” to “trump his commitments to individual freedom.” He found small group loyalties and customs stultifying to the interests of man’s development as a moral and cognitive person. Commenting on de Tocqueville’s pluralism, after offering vaguely positive statements on decentralization, Mill’s Representative Government made it the “principal business of the central authority” to instruct and “the local authority to apply it.” Does this not suggest more than “a degree” of disharmony?
The reference to the great sociologist Max Weber is the key. He is the father of American scientific administration, one of the “eminent German writers” Woodrow Wilson gave credit for his new rationalized liberalism. The word rationalization is critical. This term is easily associated by Americans (and Mill) with progressivism. It is hard to avoid the conclusion that this is an attempt by Levy to introduce pluralism into the dominant ideology of modern rationalistic Weberian progressivism, a fine project but confusing nonetheless.
Is Montesquieu chosen as a founder of pluralist liberalism to force his opposite to be the less attractive rationalist Voltaire, rather than de Tocqueville contrasted against the more attractive Mill? Voltaire in his stress on expertise and centralization is clearly the antecedent to Mill, Weber, and Wilson, but extolling “enlightened absolutism” is not really the best way to the modern progressive heart. Louis XIV, Frederick the Great, Henry VIII, and the other predecessors of the modern progressive welfare state are all pretty tough to defend these days.
As laudable as is Levy’s noble fiction, considering the two “strains” as related ultimately fails. That both use the term “freedom” is not sufficient. As George Orwell showed, its meaning is infinitely malleable. Levy mentions the great theorist F.A. Hayek as an inspiration in writing his book but he criticizes Hayek (referencing his Constitution of Liberty but not his more sophisticated “Kinds of Rationalism”) for insisting upon an absolute distinction between the two concepts.
Hayek has the better argument. Montesquieu, Tocqueville, and the other pluralists did not lack a central government to sometimes restrict subsidiary institutions (as Richman conceded), but they rejected the all-controlling, expert bureaucratic rationalization of Voltaire and Weber. The latter is a specific form of control requiring full convergence with a state definition of freedom that uniformly restricts all subgroups as the norm. Pluralism concedes a role for central authority but it is limited, requiring a plurality of independent institutions freely to do the rest.
Simply, one can find a central government compatible with freedom without having to concede the necessity for a Weberian bureaucratic state to rationalize all under a unitary conception of progressive freedom.
Donald Devine, senior scholar at the Fund for American Studies, and the author of America’s Way Back: Reconciling Freedom, Tradition and Constitution, was director of the U.S. Office of Personnel Management during Ronald Reagan’s first term.
Donald Trump may now be the presumed Republican candidate, but the party convention is not scheduled to close until July 21, and there will not be a nominee until then. Two and a half months is an eternity in this 24/7 media environment. There have been 22 contested party conventions since 1876, one lasting 103 ballots. The fat lady has not sung.
The GOP has survived Richard Nixon, Herbert Hoover, Progressive Teddy, and George W. Bush—and it will survive Trump too.
The Republican Party is an independent association recognized by the Supreme Court as such, able to set its own rules and procedures. And its ultimate rule is that the delegates elected to its convention every four years are in charge, just as state electoral votes are in the general election.
Trump will undoubtedly have 1,237 delegates pledged to him beforehand but that must be confirmed by actual votes from delegates.
After Indiana, the AP has Trump with 1,053 delegates. Forty or so of these are unbound to him and could change their mind. Ted Cruz, Marco Rubio, and John Kasich have 905 delegates, none of whom have been released. The AP cannot figure how another 69 elected delegates will vote. There are 445 delegates yet to be selected.
It is no secret that Cruz has been electing delegates in many states where Trump won the presidential preference but was too lordly to recruit mere party delegates. One estimate is that a third or more of Trump’s delegates really want someone else, giving the anti-Trumps a strong majority of delegates at the convention. Most are conservative or party activists who neither Trump nor the party establishment can control.
Does not Republican Rule 16(a)(2) say that if a delegate tries to vote for someone other than the candidate that won a binding primary that vote shall “not be recognized” by the secretary of the convention? Yes, but the delegates select the secretary.
Rules expert Republican National Committeeman Curly Haugland believes that Rule 37(b) trumps (sorry) 16(a) so that delegates can demand a roll call and vote any way they want. Who will decide? The chairman of the convention, who also is selected by the delegates, will make that decision.
The current rules moreover are only the temporary rules of the convention. Who decides what the permanent rules will be? The delegates do, of course.
Delegates control the credentials committee too. In 1952 Dwight Eisenhower establishment forces challenged three state delegations and that was enough to sink traditionalist conservative Sen. Robert Taft. Maybe turnabout would be fair play.
There would be riots? When the Democrats did that to Hubert Humphrey in 1968, he almost won the election anyway.
That may be unlikely but the delegates could easily choose whomever they desired for vice president, no matter what the nominee wanted, and they should. Liberal Democrat Adlai Stevenson was forced to accept conservative Sen. John Sparkman as vice presidential nominee in 1952 and threw the VP nomination open in 1956 too.
Just as important, the convention should set its own platform for this convention and at least the rules for the next convention as well. And they should insist upon featuring House and Senate candidates in prime time in the hope of minimizing Trump taking down Congress with him in the coming loss in November.
Won’t all this be fought by Trump and party forces? Yes, but party activists defeated even a sitting president on rules in 1972 and won major concessions on platform and rules in 1976 from another. In both cases fear of bad TV and the threat of a walkout led those interested in the presidency to concede the lesser evil of letting the delegates have their way.
A party convention is not bean bag and delegates should not blink at the challenge. It matters who sits in the White House and Congress especially in these days of supine legislatures and overactive courts.
An open convention in Cleveland with the Republican activist base in charge would be real party democracy at work, and it would be great spectacle too.
Relax. It is too early for hara-kiri. I was in the middle of the action at both of the last contested GOP convention votes and it took a few years—but there was a happy ending in the nomination of Ronald Reagan.
Donald Devine is senior scholar at the Fund for American Studies, the author of America’s Way Back: Reclaiming Freedom, Tradition and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term and was a senior consultant for his presidential campaigns.
Donald Trump, the presumptive presidential nominee of the Republican Party?
How could a non-conservative become the nominee of the conservative party when he clearly is not one at all? The uncomfortable fact is that conservative intellectuals and leaders have been working for years to make the term become meaningless, so some charlatan was inevitable.
What is the public face of conservatism today? A bunch of angry men and peevish women on Fox News speaking in the three second soundbites required for admission into celebrity space with slogan answers anyone could predict before they open their mouths. Talk radio at least allows a few minutes for some depth but even many of the magazines are mostly aimed at Twitter level.
It is all meaningless slogans: anti-taxes, anti-government, pro-life, pro-defense—who could disagree—or really care?
What message are they sending? Audience-building anger, first at President Obama, at almost anything he does. Then, anger at all groups supporting the president. Then anger at Republicans in Congress because they do not defeat that president, from those who also claim to be Constitutionalists but ignore the presidential veto and that Congress lacks the votes to impeach him. And anger at the Supreme Court for operating as a super-legislature by those who failed to complain when Republican presidents appointed them.
Now there is much to be angry about—entitlements threatening bankruptcy, courts becoming the supreme national legislature to determine the culture, regulations killing the economy and jobs, the Federal Reserve undermining the currency, a bureaucracy so overwhelmed its stasis frustrates all useful work, even Republican leaders not intelligently confronting Obama. But these do not fit on Twitter. Sloganeering is the easier course.
So when a Donald Trump comes along and is angry using the same catchphrases, why not support him? He was a celebrity par excellence and no one told ordinary conservatives what the mantras mean. So the uninformed and the inert rose to support him. Trump likes big government programs and might even increase entitlements as they near bankruptcy? Obamacare is not all that bad? He likes Planned Parenthood although they sell fetus parts? Free trade is not all it is cracked up to be? He wants more power for the president?
Who cares? He is angry against the right bad guys and he knows enough slogans to get by.
How did Trump get his conservative bona fides anyway? National Review was the founding magazine of the conservative movement. But its current editor initially welcomed Trump into the presidential race as filling a vacuum to speak out on controversial issues, although he later called him a “philosophically unmoored political opportunist.”
A former chairman of the American Conservative Union gave Trump a preeminent speaking platform at the leading conservative forum, the Conservative Political Action Conference, following a $50,000 contribution from the mogul to the organization. After these two endorsements, who could say Trump was not conservative?
Liberalism could correctly brag that conservatism barely existed in the U.S. until the success of Nobel Laureate F.A. Hayek’s Road to Serfdom in 1944, making the first intellectual case for modern conservatism. It was read by William F. Buckley Jr. and other early National Review editors such as Frank Meyer and Russell Kirk, who created an intellectual journal in the 1950s to translate the philosophy into politically relevant form.
Buckley explained that his role in founding the magazine and the movement was simply to bring the leading right-of-center intellectuals together and force them to synthesize each other’s ideas into a more-or-less coherent whole.
The early adherents ranged from monarchists to anarchists but somehow after prolonged serious intellectual debate they had created the modern conservative movement. Their disciples founded think tanks and other cultural and political institutions, published additional books and magazines and created activist organizations that developed the cadre that won the Republican nomination in 1964—and finally the presidency under an early adherent, Ronald Reagan.
It had its successes but it has been obvious for years that conservatism had lost its moorings. Trump simply sealed the movement’s end. He has already proved the slogans have no overall coherence and the mainstream media trumpeted the charade as the essence of conservatism. It turns out the media gave Trump $2 billion in free media (Hillary Clinton only got half that amount) to do the job.
Take the mantra of Republican leaders that “we all agree upon” reducing taxes. But remember what Reagan said about them. Right at the beginning of his presidency, he proclaimed he was not reducing spending and taxes primarily to save money but to return power to the states and people. There was a broader philosophy behind the slogan. That is what has been lost.
A serious conservatism needs to turn from the allure of power and celebrity and get back to serious deliberation, re-learning how to synthesize conservatism’s traditionalist and libertarian elements for today’s world. Inventing showy abbreviated conservatisms—neo, social, paleo, reform—distract from the fundamental necessity of synthesis. While Buckley and Reagan still have much to teach the movement, things have changed and new fusions of principles and events have become essential.
Indeed, the best thing about Trump’s success is that conservative intellectuals seem to be starting to think again, realizing slogans are not enough. With a bit of luck The American Conservative and other serious forums just may find the way back.
Donald Devine is senior scholar at the Fund for American Studies, the author of America’s Way Back: Reclaiming Freedom, Tradition, and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term and one of his campaign strategists.
Contrary to wishful thinking, the results of Iowa and New Hampshire only confirm the same stark reality that has haunted the Republican nomination process from the beginning: Party rules are a tragic accident waiting to happen.
The most obvious result of the opening contests is that selecting a nominee will be a drawn out affair. Donald Trump gets bragging rights for a big victory in New Hampshire but so does Ted Cruz for Iowa. Yet Trump underperformed by winning only a third of the vote when the polls predicted he would win more. He gained no new votes over the course of the campaign and the polls in South Carolina show him around the same one-third total. He will not run away with the nomination.
Cruz cannot dominate either, even after relatively strong showings in the first two contests. His 4 percentage point margin in Iowa was impressive since he was opposed by the entire state establishment for his opposition to ethanol subsidies, the supposed third-rail issue in Iowa. The popular sitting governor and the whole state agricultural industrial sector proclaimed that Cruz must lose to save the state. The fact he won against this headwind, to say nothing of Trump and a talented field of others, does show remarkable strength. But he did come in third in New Hampshire behind John Kasich.
What stops Cruz from opening a commanding lead as he heads into nine southern states that should be his natural base? The first obstacle is that the Washington Republican establishment simply loathes him. They recognize Cruz as someone who actually represents change that will threaten their privileged position of power in the nation’s capital. They will fight him with all it takes as long as it takes. The fact they prefer even Trump as one with whom they can cut deals demonstrates the strength of their convictions against a Cruz candidacy of principle.
Even that barrier to Cruz’s nomination is superseded by the threat from the new Republican Convention rules. The Southern Super Tuesday primaries and the other Southern contests before March 15 are required for the first time to award their primary delegates by proportional representation where each candidate wins only the percentage of delegates he receives from the popular vote, rather than the first-place candidate winning all delegates. That method guarantees no candidate will be able to build a commanding lead until after March 15 when winner-take-all nomination contests become possible.
Southern states have held Super Tuesday nomination contests since 1988 as a means to give the region more importance in deciding who will become the presidential nominee and to some extent it has worked. But until now they were not required to split their delegate votes. This year the southern state parties recognized that setting the dates before March 15 would dilute their importance but went ahead anyway in favor of winning mere media attention at the cost of real power, which is in delegate votes. As a result, not only will there be no bandwagon effect for a southern favorite like Cruz but the decision basically turns regional power to the Midwest, Northeast, Florida, and California, a moderate establishment’s dream for a Kasich or Jeb Bush.
Even if Cruz wins every southern state by 5 percent or more, he will only win a few more delegates than the second, third, or even fourth-place candidate. Even if he does well later, he and the rest of the candidates will most probably only be able to limp into a contested convention.
Republican party chairman Reince Priebus is confident that there will be no contested convention. He recently told Time magazine: “I know the rules pretty well, I’m pretty confident in how delegates are allocated, I helped write a lot of the rules and I believe that clarity will come very soon” as to who will win the nomination. The current plethora of candidates “doesn’t mean that, by the end of March or mid-April, the end of April, that it isn’t going to be very clear. There’s only so much money to go around, there’s only so long everyone can keep fighting.” He claimed he was prepared for a contested convention but based on his expertise did not expect one, “so it’s not like I need some sort of expert help to understand our own governing rules or how our convention might run.”
Priebus did help write the rules, but he vastly underestimates the dangers they represent. Trump has spent almost nothing thus far, so why can’t he go on forever? Certainly, the establishment candidate will not lack funds and neither would a competitive Cruz.
Virginia National Committeeman and rule expert Morton Blackwell went to the winter meeting of the Republican National Committee to warn the party’s ruling body between elections of the danger represented by other rules that might affect the nomination even more if there is a contested convention. He reminded them that
at the 2012 Republican National Convention in Tampa, a great many Delegates’ votes were not counted in the convention’s tally of the ballot for the presidential nomination. After loud cries of outrage from the convention floor in Tampa, hundreds of Delegates went home furious at the Romney campaign. As the national Rules of the Republican Party now stand, something similar would certainly happen again at the 2016 Republican National Convention in Cleveland. This time, even more Republicans would be mad at their party. Perhaps worse, as the Rules of the Republican Party now stand, the 2016 Republican National Convention could nominate a candidate who does not receive the votes of a majority of the duly elected Delegates.
Blackwell explained that the procedural rules of the convention were changed years ago to accommodate TV by not allowing frivolous “favorite son” candidates to eat up valuable air time at the expense of the actual nominee. The rules were thus changed to require any candidate to have “substantial support” from several states to qualify for nominating speeches and floor demonstrations. At the last convention, “the Romney campaign amended the rules as the convention began in Tampa and changed the requirement from having a plurality of the delegations in five states to having a majority of the delegate votes in at least eight states. They knew that this rules change would prevent a nominating speech and a floor demonstration for Ron Paul or anyone else except Mitt Romney.” The rules were changed to prohibit “even the recording or tallying of delegate votes” for any candidate who did not meet the new threshold.
The critical action was that the Convention Chairman and the Convention Secretary held
that Rule 40(b), as adopted by the 2012 national convention, required that only candidates who had the support of a majority of the delegate votes in at least eight states could be formally placed in nomination as our presidential candidate and that, therefore, under new Rule 40(d), votes could not be counted for any candidate not meeting the threshold of eight states. To repeat this abusive procedure at the Cleveland convention would be a national scandal and would certainly damage the Republican ticket. At no time, not even at the 2012 convention, when any such threshold requirement was proposed, debated, passed, or amended, was there any suggestion that the national rules would prohibit the casting, recording, and counting of the votes of duly elected Delegates who cast their votes according to their state party rules and their state law. Yet the votes of delegates voting for Romney were the only votes announced by the 2012 Convention Secretary and counted in the final tally.
Here is what Blackwell calculates could happen at this year’s Republican Convention.
Assume that Candidate A wins 38% of the delegate votes at the national convention, then that Candidate B wins 39% of the delegate votes, and that candidates C, D, E, F, and G among them win the remaining 23% of the delegate votes. With many states binding their delegate votes proportionally to their presidential primary votes, this could happen.
Assume also that none of the five candidates whose numbers made up that 23% of the convention votes won the majority of delegate votes in at least eight states. That would be likely.
Then assume that a big majority of the Delegates whose votes were bound to Candidates C, D, E, F, and G would vote for Candidate A on a second ballot. That couldn’t happen because there wouldn’t be a second ballot. Under the current rules, the votes for Candidates C, D, E, F, and G wouldn’t be counted. Candidate B would receive the presidential nomination with the votes of only 39% of the duly elected Delegates, although a majority of the total number of Delegates preferred Candidate A over Candidate B.
Blackwell’s reform proposal was defeated by the RNC, to a great extent in deference to Priebus’s expertise, which insisted this chaotic scenario could not take place. But in fact, this remains a possibility.
One theory is that the Republican establishment does not care if there is a chaotic convention if Cruz would become the nominee since the negative reaction to such a convention would surely end in his loss of the general election and the establishment soon back in control of their party. The more ominous scenario would be for the establishment to manipulate the Republican Party mechanics that run the convention to have the secretary simply declare either Trump or the establishment candidate the winner by only counting those votes they deemed legitimate. Of course, the conservative base would be infuriated and the GOP would lose the general election, but the party would again be back in the hands of the establishment.
Heads we win, tails they lose.
This may all appear implausible in today’s modern media age, but this rules expert was himself a prime participant in the rules shenanigans at the last contested convention in 1976, assisted in the dramatic rules changes at the 1972 convention, managed several contested state conventions, and can testify that this possibility is not mere fable. Indeed, the 1952 Republican Convention did in fact refuse to count the delegate votes from Texas, Georgia, and Louisiana on key rules, votes denying the nomination to conservative favorite Robert Taft.
It happened before and it can happen again. Only this time it could be easier since the Republican National Committee has signaled beforehand that the convention secretary and chairman might just be able to settle the matter all on their own.
And the chairman will be Senate Majority Leader Mitch McConnell.
Donald Devine is senior scholar at the Fund for American Studies, the author of America’s Way Back: Reclaiming Freedom, Tradition, and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term and one of his campaign strategists.
All of the Republican presidential candidates compare themselves to Ronald Reagan. But almost every media outlet from the mainstream to the blogosphere predicts that Reagan would not even be able to win the Republican nomination if he were running for president today.
The Washington Post highlighted a study from the liberal Center for American Progress claiming to show how Reagan’s policy positions differed from those of today’s Republicans. He raised taxes 11 times, including on the rich; increased government size and spending; signed immigration reform legislation including a path to citizenship; advocated the Brady gun control law; agreed to a treaty on climate; signed a treaty to reduce nuclear arms with the Soviet Union; and took many other positions that would not pass muster with the right today. Back when he was governor of California, he even supported abortion.
Former Reagan appointee Bruce Bartlett took Reagan’s support for these positions as justifying abandoning today’s Republican Party altogether, claiming the real Reagan:
was not a radical who made extravagant claims or sought to destroy government, as most Republicans appear willing to do today. He believed in conservative governance and getting things done, and if bending on principle was necessary, then so be it. I think Republicans would be better off emulating the real Ronald Reagan and less demanding rigid adherence to unachievable principles.
There obviously is some truth to these claims. But they tend to ignore the fact that many of these differences were not positions Reagan supported. Instead, they were forced upon him by more moderate Republican and Democratic Congresses as compromises to obtain something he considered more important. Any Republican who might become president next year will be subject to similar constraints no matter what they say, or even think, today.
In fact, Reagan clearly did not support higher taxes or more domestic spending and would not consider making them part of his platform. He did raise them as part of much larger budget bills to obtain other goals. His largest increase was supposed to result in two dollars of reduced spending for every dollar of increased taxes. He later said it was the worst mistake he made as president. In fact, by the appropriate measure called Budget Authority, Reagan did reduce nondefense discretionary spending by almost 10 percent over his two terms. There is no ideological gap with today’s Republicans on what they desire regarding spending and taxes.
On guns, Reagan was an avid firearms supporter and even carried his own weapon once on a trip to the Soviet Union. He merely supported a waiting period for arms purchases, which is hardly gun control. He supported a climate treaty regarding world ozone levels but it only eliminated a few easily substitutable chemicals, nothing like reducing energy consumption. His conversion from his earlier abortion views was dramatic. On the other hand, Reagan did differ on foreign policy and immigration compared to today’s candidates, as Reagan was indeed less interventionist on foreign policy and more liberal on immigration than most of today’s Republican candidates.
Immigration was very important to Ronald Reagan. He saw the U.S. as a nation of immigrants including him and his family. He actually used the idea of a North American accord between Canada, Mexico, and the U.S. as a major proposal in announcing his 1976 presidential candidacy and positioned his 1984 campaign kick-off across from the Statue of Liberty noting her “golden door” open to immigrants. Yet he was also concerned about abuses resulting from the 1965 immigration act, especially chain-migration (where endless non-nuclear family members of one legalized person can become citizens too). Reagan actually supported Teddy Kennedy’s amnesty immigration bill in 1986 as a means to control those abuses. He was later chagrined when the enforcement aspects of the bill proved ineffective.
On foreign policy Reagan was clear about his anticommunism and supported an active role in world affairs. He described the U.S. Cold War with the Soviet Union as “we win, they lose.” He called the USSR evil. While he cut domestic spending, he increased defense spending dramatically. On the other hand, he signed a nuclear reduction treaty with the Soviets that led to the destruction of 2,692 nuclear and conventional ground-launched ballistic and cruise missiles, the largest reduction ever. He supported a large defense but hoped that made it less necessary to commit troops. Margaret Thatcher said he won the Cold War but added “without firing a shot.” A study at the Naval Historical Center shows Reagan committed fewer U.S. ground troops abroad than any recent president other than Jimmy Carter. As Martin and Annelise Anderson demonstrate, peace and nuclear arms control were lifetime passions of the former president.
How do these views compare to those of today’s presidential candidates? The nonpartisan CROWDPAC website has created an empirical measure of issue positions and group support to compare today’s candidates in a more objective manner. Fortunately, it calculated a Reagan score too. The measures can be faulted but seem unbiased, supporting its mission to put data in citizen hands and allow them to make informed decisions. They rate on a 20-point scale from the most liberal Bernie Sanders at 8.7 and Hillary Clinton at 6.5 liberal to the zero scale point with George Pataki (0.9) and Donald Trump (1.5), then moving toward the more establishment conservative end with Graham, Santorum, Bush and Kasich with four-point conservative ratings, followed by Rubio, Florina and Huckabee all with 6.0. Reagan earned a 7.0 out toward the conservative end with Ben Carson (8.4), Ted Cruz (9.6) and Rand Paul (10).
Reagan, of course, was the most conservative of the plausible Republicans in the races in 1976 and 1980. On the basis of the scores, if he ran today Reagan would still be toward the right end of the candidate spectrum, perhaps perfectly positioned. All of the Republicans above a score of 6.0 (except Huckabee on economic issues) pretty much agree with Reagan on domestic issues, especially the three at the right end, with Carson most like Reagan on personality. What about on the two policies where Reagan was most different, immigration and defense? Only Rubio and Paul seem close to Reagan on immigration. Only Cruz and Paul seem as pragmatic on foreign policy, with the latter taking the most heat on the issue from the others.
A fair analysis suggests Reagan could be a credible candidate for the Republican nomination in 2016 if such a thing were possible. Several candidates have similar scores to Reagan’s, which might leave them well positioned. Yet Trump is least like Reagan and he leads in the polls. Actually the CROWDPAC scoring represents Reagan after he became president. Candidate Reagan would be much further to the right, perhaps all the way with Paul, who is also most like him on the two outlying issues. On the other hand, Paul lags in the polls.
Whether a Reagan or those like him today could win these days is another matter. We shall soon see. While principles may be immutable, situations change. Sixteen years of pretty much ignoring Reaganism has turned the electorate very sour.
Donald Devine is senior scholar at the Fund for American Studies, the author of America’s Way Back: Reclaiming Freedom, Tradition, and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term and one of his campaign strategists.
The real shock of the terrorist mass murders in Paris and San Bernardino is the lack of seriousness in the responses from America’s ruling class, on both the left and right. They let political correctness get in the way of sensible homeland-security policies, and since they misunderstand the relationship between various branches of Islam, our leaders seem unlikely to mount a realistic campaign against the Islamic State.
Last week, in the wake of the attacks, President Obama tried to reassure the nation, but presented no new strategy other than blaming Republican gun-rights activists for refusing to enact tougher national laws, even though the San Bernardino massacre took place in the state with the most gun regulations. He urged that we not “turn against one another by letting this fight be defined as a war between America and Islam” but asked for those merely under suspicion on the no-fly list to be prohibited from purchasing firearms. Republicans responded with an undefined greater toughness and no additional gun control.
Regarding the Islamic State killing of 130 Parisian innocents, Obama labeled it a “terrible and sickening setback” but then angrily turned the blame to Republicans. “I cannot think of a more potent recruitment tool for ISIL than some of the rhetoric that’s coming out of here during the course of this debate.” He accused them of “hysteria,” an “exaggeration of risks” and for creating “fear and panic” among Americans. He labeled it offensive and discriminatory that some conservatives suggested accepting Christian refugees over Muslims.
Republican Speaker of the House Paul Ryan responded with legislation to delay acceptance of the 10,000 Syrian refugees proposed by the president until “certified” by the intelligence agencies as terrorism-free and then—bowing to the president—promised that there would be no “religious discrimination” favoring any group over another. But why did both party leaders think it was improper to notice that in the Middle East, Christians and other minorities (such as Yazidis and Jews) are the ones being beheaded and crucified and have no recent history of jihad?
President Obama blithely insisted that intelligence data and interviews could determine which refugees were safe. But FBI Director James Comey testified before Congress last month that “a number of people who were of serious concern” slipped through the screening of Iraq war refugees, including two arrested on terrorism-related charges. “There’s no doubt that was the product of a less than excellent vetting,” he admitted.
Comey insisted the process has “improved dramatically” since, but that Syrian refugees will be even harder to check because, unlike in Iraq, U.S. soldiers have not been on the ground collecting information about the local population. “If we don’t know much about somebody, there won’t be anything in our data,” he said. “I can’t sit here and offer anybody an absolute assurance that there’s no risk associated with this.” And the one characteristic easiest to use to verify those less likely to bomb Westerners, religion, is disallowed by both political party leaders as improper discrimination rather than common sense.
Nor, as Chris Christie has charged, were Republicans who supported limits on government surveillance activities negligent. France has fewer limitations on domestic spying, and that did not prevent the Paris attacks.
A Refresher Course on the Politics of Islam
Fourteen years after 9/11, U.S. leaders still cannot even identify the enemy. Obama, imitating his supposedly incompetent predecessor, rejects any reference to Islam and only decries “terrorists,” as does most of the media. In his White House address, he correctly said that “ISIL does not speak for Islam” but only identified the attackers as those “embracing a perverted interpretation of Islam that calls for war against America and the West,” saying “an extremist ideology has spread within some Muslim communities,” without naming it. Interestingly, he then reversed himself in less than a month and called for “stronger screening” for visas, noting that the “female terrorist” had entered the country through a waiver.
In contrast, the hawkish neoconservatives insist on calling the enemy “Islamic extremists.” Islam, however, is not a unitary religion, no more than is Christianity. All have had divergent sects almost from the very beginning. The New York Times reported last year that the top FBI counterterrorism chief could not distinguish between the two main divisions of Islam, Sunni and Shia. It is not Islam but Sunni Islam, or more particularly Salafi Sunni Arab Islam—or even Wahhabi Sunni Salafi Islam or Deobandi Asian Islam (evolved from Sunni and today Wahhabi) that have been the source of most of the terrorism, almost all of it lately against Americans.
The San Bernardino killings shocked conventional wisdom when it was reported that Tashfeen Malik shot first and was only followed by her more reluctant husband Syed Farook. We learned more not from the FBI or the president but from a single Washington Post reporter who interviewed the female terrorist’s best friend in Pakistan, who said Malik became radicalized while going “nearly every day” to a madrassa school that “belongs to the Wahhabi branch of Sunni Islam.” Still the rest of the media remained fixated upon some amorphous notion of “terrorism.”
Who specifically has attacked the U.S.? It was, of course, al-Qaeda that was responsible for the horrendous attack on 9/11 that opened the current phase of attacks. Its founder Osama bin Laden was a Saudi Arabian Sunni Wahhabi. Salafist-derived Wahhabism is a Sunni puritan school that idealizes the early Muhammad and his first associates and rejects any later liberalization or technical or moral modernizing, which it considers as the cause of Islam’s modern decline. Bin Laden, following Salafi Abdallah ‘Azzam’s teaching that every Muslim is obliged to defend Islamic lands against infidels and their teachings, objected violently to U.S. presence on Saudi soil after the Gulf War.
Having accused the Saudis of insufficient zeal against infidels, bin Laden was forced into exile in Sunni Sudan. Expelled from there under U.S. pressure in 1996, he moved to Afghanistan to secure the protection of the Deobandi Sunni Taliban. From his exile, he issued “a declaration of war” and armed struggle against U.S. troops stationed in Arabia and for harming Sunnis in Iraq by sanctioning Saddam Hussein. Bin Laden claimed responsibility for the 1996 explosions in Dhahran, which killed 19 U.S. servicemen, saying they were a warning to avenge the collusion between the Saudi regime and the “Zionist-Crusade” alliance.
Al-Qaeda continues in Syria today under the name al-Nusra and is probably still the next most effective force in the region, and of course is still Sunni Salafi. What is now known as the Islamic State (or ISIL or ISIS) separated from al-Qaeda by claiming to be the “commander of the faithful,” intending to then claim the Caliphate, including the power to decide what is and is not Sunni. Its Salafi roots have not been mitigated by the fact that former Saddam military officers became a critical part of the its leadership and perhaps to some extent manipulated the true believers. But if there was manipulation, it was in the context of Sunni Wahhabi doctrine.
Sunni and Shia forces have been competing since the seventh century. Their war against each other shapes all events in the region. Because al-Qaeda and ISIL are Sunni, they regard Shi’ites as heretical. But while al-Qaeda’s leadership in Pakistan underplayed the differences between Sunni and Shia, its Iraqi branch—the group that transmuted into ISIL—insisted on war with Shi’ites generally, demanding that all Sunnis in Iraq attack Shi’ite civilians and holy sites. Iraq’s Shia majority struck back with equal ferocity against the Sunni minority. Thus when ISIL, which had gathered strength in Syria, marched back into Iraq in force in 2014, the Sunni population first greeted it as its protector.
Syria’s Sunni majority had rebelled against the Shi’ite-related Alawite dictator Bashar Assad beginning in 2011. Iran, the one and only Shia power, went to Assad’s aid, along with its Lebanese Shia ally, Hezbollah. Together they saved the Assad regime’s hold in Syria. ISIL, however, took control of the Sunni-majority northeast and erased the border with Iraq. Thus, ISIL runs what one might call the Sunni-stan that stretches from Raqqa to Ramadi.
The U.S. government’s response has been to try straddling the Sunni/Shia divide, confusing and infuriating both sides. The U.S. allied with a self-described Sunni, Saddam Hussein, in the Iran-Iraq war. By overthrowing Saddam in the following Iraq war, it allied de facto with Shi’ites. Now the U.S. has allied with Sunnis again in the former Syria (and former Iraq) in the forlorn hope that they will fight ISIL for us. This is unlikely to work with their fellow Sunni Salafi.
At a minimum, we must identify who the enemy is now—not all Islam, although all of it is affected to some degree by its early militaristic orientation. Shi’ites in Iran did take U.S. embassy staff hostage in the 1970s, were involved in the bombing of U.S. troops in Lebanon in 1983, and some militias fought sporadically against Americans in Iraq. The U.S. may still owe them some retribution for these attacks but that is not today’s pressing business. Shi’ites certainly had nothing to do with 9/11 or Paris or Syria or the recent attacks in Europe or America. The current enemy from the West’s perspective cannot be Shi’ites or even all Sunnis but is—and must be clearly labeled—Salafi Jihadism or Wahhabi Jihadism, sects which unfortunately are embedded in the Sunni world, making U.S. alliances with Sunnis difficult.
A Realistic Challenge to the Islamic State
Once the competing forces are identified, one must look carefully at the facts on the ground in Syria. One careful evaluation comes from Senator Rand Paul, who last month argued:
There may be no good guys in this war. You have ISIS on one side and Assad on the other. Really, part of the problem is ourselves [since allies] Saudi Arabia and Qatar poured millions of tons of weapons into that civil war. That pushed Assad back and allowed ISIS to grow. Remember, only a year or two ago, President Obama, Hillary Clinton and many Republicans wanted to bomb Assad. I think had we done that, ISIS may well now be in control of all Syria. We need to think before we act and understand that intervention doesn’t always achieve the intended consequences.
President Obama and even “hawks in our party” supported giving arms indiscriminately to the so-called Syrian moderates, Paul continued. Both groups made Assad the primary enemy and the U.S. almost went to war against him. The U.S.-trained Syrian moderates crumbled at their first engagement, abandoning weapons that were “snapped up by ISIS,” as Paul put it last May. He was criticized then by neoconservative Charles Krauthammer for supposedly not realizing that Assad was in cahoots with ISIS in agreeing not to attack each other—even though ISIS took the city of Palmyra from Assad’s forces the next week.
Secretary of State John Kerry’s discussions in Vienna proposing a Syrian ceasefire at least include Assad supporters Russia and Iran, but the United States is still insisting with Saudi Arabia and Turkey that Assad must be removed immediately, rejecting Russia’s suggestion of even an 18-month transition until the next presidential election in Syria. No Syrians were invited to the discussions of their own fate.
In fact, other than the Syrian Kurds, Assad and his Iranian surrogates are the only troops on the ground fighting effectively against ISIL. Expecting Sunni Turkey or especially Wahhabi Saudi Arabia to send troops against their fellow sectarians is naïve. At best the latter might be convinced to stop arming al-Nusra and the former from attacking the Kurds. All of the participants on both sides are less than perfect and Europe does not have the firepower to be effective. Twenty French bombs as a first response to the attack on their capital city was a pathetic admission of weakness, and even that required U.S. assistance. At least Russia has real air power. But as the deep underground tunnels in liberated Sinjar demonstrated, air is not enough.
Obama allows his ideology to get in the way of recognizing that as “evil” as Senator Paul said Assad was, the Syrian president represents the lesser of two evils in Syria. The Islamic State attacked Paris and set Washington D.C. as the next target. The horrific group is today’s problem. It is even more evil and is directly threatening the U.S. with its own promised attack. While ISIL’s threat was only to Western “crusaders,” they target all Westerners—even the most secular atheists. Assad, on the other hand, tends to protect or at least not persecute Jews and Christians. And Assad and his allies at least have ground troops. By not understanding that such distinctions between evils are the essence of statecraft, Obama proves that he simply is not up to the job. There is no solution without Assad forces.
While the pacifist left might think that all would be fine if America had stayed home (and I did write a column in late 2002 opposing the coming Iraq invasion), the present reality finds the U.S. mired down. President Obama may think that if the West makes nice with Islam the majority of Sunnis “who share our values” will defeat the terrorists and Assad will somehow just go away because he is a bad guy. This is delusional. They certainly do not share our values.
Neoconservatives and liberal interventionists are just as mistaken for calling for U.S. ground forces “for as long as it takes.” Robert Kagan’s plan is to send 30,000 troops to establish a “safe zone” for refugees and 10,000 to 20,000 more to “uproot” Islamic State from Syria and Iraq. Then he would apply pressure to remove Assad and Russia, just as the U.S. has used its muscle to create today’s “liberal world order” these “past 70 years.” Once this is successful, French, Turkish, NATO and Arab forces would replace U.S. forces. Good luck with that given Kagan’s own admission that NATO has no replacement forces and that Arabs will help only when we fully subdue the region. And after fourteen years in the Middle East, Americans are not likely to accept Kagan’s insistence on “keeping a lid on things” indefinitely. This is a dream world.
The U.S. must show some response to the horrific Paris and San Bernardino attacks and especially the ISIL threat to attack Washington D.C. First, Salafi Jihadism and its branches must be identified as the problem, then confronted and properly distinguished from Islam generally.
The only military solution, without years of massive numbers of American boots on the ground, is to continue the limited U.S. role, but with perhaps more air power. We must start cooperating with Russia, and supporting Assad and Kurdish land forces against the Islamic State barbarians. Only then can the U.S. consider becoming a less prominent ingredient in the Middle East cauldron, where ancient vendettas continue to poison the region.
Millennials entered the popular imagination in 2008, when pollsters found people born between 1980 and 2000 were overwhelmingly supportive of Barack Obama for president. While the term had been used earlier, the dramatic election results that year permanently established the new designation. Millennials voted for Obama by an impressive two-to-one margin, 66 to 32 percent, higher than any group other than African-Americans. As a result they were labeled as ideological left-liberals, a solid base for Democratic victories for as far as the eye could see.
This view of millennials as left-leaning was reinforced by the more recent gay marriage debate, where polls found millennials supporting same sex marriage much more than other generational cohorts, at 70 percent, 10 percent higher than the next most supportive generation. As millennials surged this year to become America’s largest generation, this solidified the view of them as Democrats-forever, especially by a media with liberal predilections.
But this characterization has always been a myth.
A Reason-Rupe Poll last year presented a more nuanced view. A majority of millennials did tell pollsters they preferred a larger government with more liberal services. But when asked about such a government if it required higher taxes to pay for the services, 57 percent preferred a smaller conservative government with fewer services. Almost two-thirds not only thought government was usually wasteful but preferred free markets to a regulating government. Yet, substantial majorities supported government to provide for the poor, build public housing, support college education, and guarantee living wages (although the question did not mention the level of government required to achieve such goals).
Two-thirds of millennials did self-identify as moderate or strong liberals on social issues, generally were opposed to government restrictions on lifestyle matters, supported same-sex marriage legalization, and opposed government restrictions on abortion. Yet, as on economic issues, there were qualifications. Only one-quarter of millennials favored legalizing abortion “in all cases,” but most would restrict them only under some circumstances. Even for same-sex marriage legalization, only 25 percent said they felt so strongly about the matter that they would vote against a candidate on those grounds alone, as opposed to 20 percent who would not vote for a candidate who favored such marriages.
Even politically, Pew found that millennials changed over time, being rather evenly split between Democrats and Republicans in the 2000 election, zooming to 53 to 37 percent toward Democrats in 2004, and up again to 62 to 30 percent for Obama in 2008; but they were back down to 54 to 43 percent Democratic in 2014.
Way back in 2010, when the Pew Research Center first popularized the category, millennials were asked open-ended questions about what were the “most important things in their lives.” The five most spontaneously-mentioned priorities were: becoming a good parent (52 percent), having a successful marriage (30 percent), helping others (21 percent), owning a home (20 percent), and living a religious life (15 percent); only then followed by having a high-paying career (15 percent) and having more free time (9 percent). Millennials reported closer relationships with their families and were much more supportive of a responsibility to care for elderly parents than earlier generations. These do not seem to be wildly leftist views.
What is most obvious about millennials is that they are less trusting of individuals and less comfortable with social institutions, including government. A mere 19 percent told Pew in 2014 that most people can be trusted compared to twice that level of trust among seniors that year. Half called themselves independents rather than identifying as Republican or Democrat, compared to only a third of their elders. And while they were three times less attached to institutional religion as seniors, still only 29 percent said they did not belong to a religion at all.
Pew found fewer millennials considered themselves religious, patriotic, or environmentalist than any earlier generation. Still, 86 percent said that they believed in God, although with less certainty than older Americans, and only 11 percent said they did not believe at all. All in all, the only convincing support for the liberal typecast was that only 26 percent of millennials were married compared to 36 percent of Generation Xers and 48 percent of Boomers.
Even the marriage stereotype might be premature. A new forecast by Recent Demographic Intelligence notes that when the oldest of the millennials reached marriageable age in their twenties the economy was just recovering from the Great Recession, a time when all groups were delaying marriage or having children, married or not. Now, as the millennials are nearing their 30s, 59 percent of children born to them had married parents in 2015, which RDI forecasted will rise to 77 percent over the next decade. More are getting married, having children, and buying homes. Pew estimated that while the marriage rate of millennials will remain below earlier generations, in the end only one quarter will remain unmarried.
Why do millennials seem to be settling down like earlier generations, especially when a recent study in Germany by Rachel Margolis and Mikko Myrskyla found that married people with children are sadder than those without? Self-described “Gay Uncle” Brett Berk—who considered himself happier because he and his partner never had children—questioned why so many prefer having children anyway. He concluded that other studies do show that longer-term life satisfaction is higher among those who have children, because at the end they “feel they have accomplished something meaningful.” They “feel supported in their old age by the close community of relatives they’ve created.” Apparently millennials came to the same conclusion.
In sum, millennials seemed perhaps a bit more liberal on social and economic issues than the population but not much. A prediction: as millennials mature they will become increasingly conservative and indeed, with the younger millennial unemployment rate still double the overall rate, will probably even vote Republican in the 2016 presidential election, undermining the myth entirely.
Ryan T. Anderson has written what will become the standard argument for traditional marriage. Truth Overruled: The Future of Marriage and Religious Freedom is his rational explanation of what marriage is, why it is essential to society, and why it is necessary to enshrine the traditional position in law.
His most important contribution is to identify the two fundamentally competing views of marriage that uncomfortably co-exist in America today. The first is the traditional view of the permanent, exclusive union of one man and one woman inherently aimed at the rearing of children. The competing “consent” version of marriage, in contrast, does not require monogamy, exclusivity, or permanence—only deep consensual romantic attachment.
The foundation of Anderson’s argument for traditional marriage is that it is natural, based in human nature, and required for the procreation and development of children within a protective environment. The second type of union puts the “emotional commitment” of the partners before all else and could characterize a heterosexual, homosexual, or other relationship.
Of course, not all traditional marriages produce children, but it remains possible in a male-female relationship through changes in desires for children, natural recovery from periods of sterility, or new technologies. Until “about the year 2000” the idea of marriage as only between one man and one woman “has been nearly a human universal.” The basic fact is that it “takes two to make a baby.” Here the “lovemaking act is also the life-giving act.” It requires exclusivity and permanence to keep the “comprehensive community” of union together, including the wider community of the extended family, all for the protection and development of children.
When a child is born a mother is naturally there. Having a husband “increases the odds the father of the child will be committed” to the mother and child. Anderson argues there is no such thing as “parenting” but merely mothering and fathering, with different but complementary “gifts to the parenting enterprise.” Citing social science research he argues mothers bring feeding, understanding of infants, and comfort. Fathers bring discipline, play, and social challenge. Research finds the importance of marriage clearest when it breaks down: “Being raised in a married family reduces a child’s probability of living in poverty by about 82 percent.”
The rival, emotional type of union is open to any set of individuals who desire to be in union, gay or straight, monogamous or multiple, or otherwise. While children may be produced, they are secondary. The only criterion of union is love and desire. The difference between the traditional and consent relationships is most clear when it comes to gay unions and conflicts over the right to the term “marriage” and its meaning in law. Anderson quotes activists such as Masha Gessen arguing that the whole point of legalizing gay marriage is to supersede the idea of traditional marriage, which she does not believe should even exist. Andrew Sullivan predicts the lower rate of sexual exclusivity in same-sex unions will lead to the same “openness” in traditional marriages. E.J. Graff acknowledges same-sex marriage changes the meaning of marriage from “sex and diapers” to “sexual choice.”
The traditional or “comprehensive” view of marriage is not anti-gay but is conceived as the natural means of most effectively raising children from ancient times until today. Anderson argues that limiting marriage to one man and one woman does not violate anyone’s rights. Same-sex relationships have been legal for a decade everywhere in the U.S., may even be consecrated by a religion, and most employers will grant them equal benefits.
The government, of course, settled the debate by imposing the consensual definition of marriage from above, indeed through the courts with little public involvement. Anderson recognizes that the breakdown of the traditional marriage culture and the adoption even by many straight marriages of the consent ethic long preceded the court decision. Permanence, exclusivity, and monogamy had all broken down with the rise of no-fault divorce, cohabitation, non-marital childbearing, recreational sex, and pornography—promoted by a counter-cultural media, Hollywood, and intellectual elite. Reversing this “judicial tyranny” and culture requires a powerful opposition movement, one that creates and funds numerous traditional institutions to confront and challenge consensual marriage in both culture and law.
Anderson sets a fourfold mission for his most important institutions in this battle, the churches: they must frame an appealing case for traditional sexuality; create ministries and meaningful non-marital relationships for those with same-sex attractions; defend their own and others’ religious liberties; and provide guidance for those forced to choose between following their faith and the law. Church members must find ways to “live out the truth about marriage and human sexuality” in mutual faithfulness for themselves, their children and their religion.
Such a counter-movement would need dedicated individuals. “So the first thing we need to do is live the truth about marriage ourselves.” He asks each individual to become a “countercultural witness” using reasoned debate and Christian-like “discipleship” to change the moral climate of America. His model for such an ambitious goal is the success of Christianity worldwide with all its faults, changing the world for the better.
Anderson views religion as an inherent natural right to act on individual “judgments of what truth demands.” Thus he objects to activists who would use nondiscrimination laws to penalize those not wishing to participate in gay weddings, to force Catholic Charities out of foster care and adoption services, and to threaten private religious colleges and schools if they do not accept gay organizations. This differs from government anti-discrimination laws against racism, since anti-black bias was deeply entrenched by years of slavery and segregation law that required significant limits on private actions. He supports the proposed First Amendment Defense Act, which would forbid discrimination against supporters of traditional marriage in government grant-making.
But beyond political organizing, how will the government adopt such laws when they are the source of the threats he wants it to correct? Although Anderson sets religious freedom as a right to act on its truths, he is forced to add “within the limits of justice and the common good,” which will be defined by the government. While he correctly recognizes the danger government presents to traditional marriage, his program is caught in its web. In any event, it is clear that organizing a counter movement will take time, perhaps a very long time when the opposition controls the culture (even, he concedes, Fox News). That means gay marriage will become institutionalized. He might have explored what might be done at more local levels.
First, the states will all have to rewrite their laws. Much can be accomplished by understanding how children are to be treated under different parental relationships. Actually, government has done little to regulate marriage itself and that will continue. But the fact of children cannot be ignored. Court cases at the state level already have had to deal with the children of gay couples differently, especially in custody cases after divorce. There is a natural equality in two biological parents seeking custody that does not exist in gay relationships since in the latter both did not participate equally in the creation. So two streams of law will naturally evolve for each type of union and this development will help elaborate natural differences.
Second, as gay unions become institutionalized in law, some distinction can be kept between the two versions socially. While civil and religious marriage have been interwoven over the years of common definition, it is no longer possible when the basic conceptions diverge. Most evangelical churches; the Catholic, Orthodox, and even some mainline Protestant churches; and Jewish and Islamic orthodoxies actually require a distinction. These faith communities can separate civil marriage from their religious rites and resign from being state agents certifying civil marriages. Requiring a separate certificate would probably reduce religious marriages but would preserve their definition and keep their ministers from participating in a practice proscribed by their faiths. Such religious marriages might even change their terminology to use the word “matrimony” to affirm the distinction. For Catholics the term is already in their catechism.
For Anderson, the urgent need is re-focusing marriage on children. If marriage is not about “sex and diapers,” what happens to the kids? Today, “we have seen the unfettered desire of the strong—adults, the affluent—pursued at the expense of the vulnerable—children, the poor.” Two thousand years of Western history gives him hope that a richer sense of human life, including traditional marriage—which has been history’s least restrictive means of ensuring the well-being of children—can be recovered if those who agree have the courage of their convictions.
It was long ago, but the scene is burned in my memory. My Army drill sergeant informed us how lucky we were that a previous recruit had died on the infantry range. The drill instructors (DIs) had been told to loosen procedures so as not to kill any more of “you college boys.” We were mostly New York City wise-guy reservists taking basic training after university graduation.
Our DI sure seemed to push the edge anyway and, struggling as I did, I always wondered how tough the previous training must have been. Later I had the opportunity to learn that the training loosened even more over the years to accommodate what Arnold Schwarzenegger called the increasing number of “girlie men” in our times.
By 2010, the Army’s top trainer, Lt. Gen. Mark Hertling, told the New York Times that “the soldiers we’re getting in today’s Army are not in as good shape as they used to be.” The percentage of male recruits who failed the most basic fitness test at his training center rose to “more than one in five in 2006, up from just 4 percent in 2000.” In 2002, only three recruits suffered stress fractures. But last year the number rose to 39 and the percentages were “higher” for women.
The Army’s solution was to deemphasize “traditional sit-ups,” for more agility and balance training, while increasing the difficulty more gradually and setting up a multi-week course of linked exercises, rather than offering separate drills. There were fewer sit-ups, different kinds of push-ups, and fewer long runs, which may be good for building strength and endurance but also increased injuries. The new procedures also did not necessarily prepare soldiers for carrying heavy packs or sprinting short distances. “We haven’t eliminated running,” General Hertling said. “But it’s trying to get away from that being the only thing we do.”
Physical requirements have been gradually sliding downhill for a long time. When I was personnel director for the U.S. civilian government, recommendations for reducing physical qualifications for demanding occupational classifications such as firefighters, police, welders, masons, press operators, carpenters and the like were a constant during my tenure.
This summer’s controversy surrounding the successful completion of Ranger training by two women—Army Capt. Kristen Griest and First Lt. Shaye Haver—has been brewing for a very long time and is only incidentally about sex. There is no question that these are remarkable women whose determination should inspire anyone. But the Army had to explain that these first two female Ranger school graduates had twice failed the physically demanding first phase of the training but were allowed to take it a third time, together with the remaining phases, at which time they successfully completed the requirements. The spokesman conceded it was “rare” to allow a soldier to be allowed to start over from the beginning after failing the same phase twice. Reporters were assured that the two women met all of the requirements the third time.
Major Jim Hathaway, the number two official in the Airborne and Ranger Training Brigade, modified this explanation a bit, taking to Facebook to respond to the criticism:
The women were not afforded any advantage on recycles. They went through Darby Phase, recycled and were Darby inserts. Upon a second failure they were offered a Day 1 recycle. This means they started Day 1 and had to complete the Ranger Assessment Phase a second time. There is no advantage to this. Would any of you volunteered to go through RAP week twice and take a Day 1 recycle? Most people would not as evident by the several men who were also offered a Day 1, but declined. The Day 1 recycle precedent has been in place for many years, and is nothing new. Unless you have been part of the [Ranger Training Brigade] leadership … and have sat on the academic boards you would not know how common it actually is.
William Sabata, a former Ranger, 25-year soldier, and military science professor, was unconvinced, pointing to “the overwhelming amount of effort put into getting women into the course” and getting two to finish it:
Even before the 20 women were selected, there was a concentrated effort to prepare them and the cadre at the school. Once these arrangements were in place and 19 of the 20 women arrived, there were multiple failures in passing course requirements that led to an attrition rate of 90 percent, and the women who graduated from the 62-day program had recycled through several phases and took an additional 67 days to finish.
Sabata also cited the “pressure on the officers of the training brigade,” with “higher commands … scrutinizing and evaluating the actions at the school.” These officials “expected results (read graduates) and would not look kindly on the failure to graduate at least some women from the course.”
Lieutenant Michael Janowski took the course with the two women and defended them. He told a press conference that he was the gunner for a M320 grenade launcher for one long march in the mountains during the training test. “I had a lot of weight on me, and I was struggling, so I stopped and asked at the halfway point, ‘Hey, can anyone help take some of this weight?’” His fellow male Ranger trainees responded with “a lot of deer-in-the-headlights looks,” he said. “Shaye was the only one who volunteered to take that weight. She took the weight off me, she carried it for the last half of that ruck.” That act “literally saved me,” he said. “I probably wouldn’t be sitting here right now if it wasn’t for Shaye.”
But of course the men were acting like soldiers while the woman allowed compassion to trump the others’ refusal. Should a soldier who needed such help be graduated? Interestingly, Janowsky had “med-ed” out of Ranger training twice before due to what turned into stage IV testicular cancer. His determination and courage are commendable. But why are those with serious medical conditions like cancer needed in Ranger school? Were the other “common” recycles that Hathaway mentioned due to medical issues? The are no reports on whether the women had medical problems.
My comments as a long-ago reservist grunt for six years are more blunt than the (few) professional soldiers who have spoken on the matter. Any soldier knows when a high-ranking officer sends a work product back, one had better be sure it is done right the second time. If it is returned a second time, the officer will get whatever he wants on the third try, at least in any army I know.
Most serious defenders of women in special forces say they only support them if standards are maintained. Yet standards have already been bent generally, and particularly when allowing both men and women to retake the test three times. As Hathaway admitted this is “common”–even in Ranger training!
I write this with little expectation that women will not be allowed into the infantry and all special forces. More general grade officers have been disciplined for transgressing sexual standards than for all military actions combined. No officer with any expectation of a career will say a word. No politician will dare speak to be accused of sexism by those who place ideology over facts.
I am not really looking for policy change, but only to offer commiseration for the decline of a great institution, the U.S. Army, and in the future, all special forces.
Patrick Buchanan gets right to the core of the phenomenon called Donald Trump with his headline, “The Rebirth of Nationalism.”
Because of America’s two-party system and the dominance of individualistic libertarians and social conservatives in one party and left-egalitarians and interest-group liberals in the other, we forget the basics. As the late great political scientist Aaron Wildavsky taught us years ago there are four fundamental political types: egalitarians, individualists, social conservatives, and—the ones we forget about—what he called “fatalists.”
We tend to forget the fatalists because they tend not to vote. They view the world as foreign, chaotic, ephemeral, dangerous, on the edge of falling into bedlam. He used the analogy that their world is like a marble rolling unsteadily on a glass surface, rolling and pitching who knows where. Government has some control but is run by an untouchable, all-powerful elite acting in its own interest. Such a world can only be tamed by something enormously powerful and masterful, and only during a crisis. Then a strong central government supported by angry, patriotic nationalists and led by a popular Napoleon on his white horse can arrest the anarchy. Trump’s autobiography is titled Think Big and Kick Ass.
Buchanan tapped into the same world—although with vastly more intellect and subtlety—but he learned Wildavsky’s lesson. Fatalists do not vote, except perhaps enough to win a primary or two, and the elite strike back hard. It is difficult to sustain the anger, although Buchanan came closer than many remember. Trump may turn out to be more fortunate since popular resentment has risen to a boil this time. Bernie Sanders taps into it too, and when fatalists do vote they might go for either party. But the Vermont socialist has no horse; Trump has billions and the celebrity, willingness, and audacity to ride them.
Pollster Frank Luntz came reeling out of one of his distinctive focus groups the other day crying “my legs are shaking” from seeing the depth of commitment of the Trump supporters he interviewed at the session. “I want to put the Republican leadership behind this mirror and let them see. They need to wake up. They don’t realize how the grassroots have abandoned them. Donald Trump is punishment to a Republican elite that wasn’t listening to their grassroots.” He even showed the audience unflattering images of and statements by Trump meant to turn them off. It did not work. At the end they were more committed than at the beginning.
Political analyst Tom Charles Huston predicts the establishment Republican presidential candidates will sputter—Trump quipped Jeb Bush puts his audiences to sleep—and the business “donor class” elite will desert them, happy to support Hillary or Joe Biden to advance their crony capitalism rather than moving to a conservative with an edge who might be able to confront Trump—and them.
If Trump wins Iowa and New Hampshire, it is difficult to see any opponent who could rally South Carolina two weeks later, or Nevada. Then on March 1 a half-dozen Southern states with many fatalists (remember Huey Long) will split the opponent’s ranks further. On March 15 Bush could be ousted by Marco Rubio in Florida, with John Kasich winning by a smaller than expected margin in Ohio. Trump could win by losing, saying they were only favorite sons. No one would be left anyway. If he wins either state, it is all over.
So what was impossible a few weeks ago now becomes a real possibility.
The willfully blind establishment in Italy did not think Benito Mussolini or even Silvio Berlusconi could win, either; both succeeded because the reasonable right floundered. The latter became prime minister three times. How does President Trump sound? Or President Hillary?
With the House passing a bill to limit the federal role in K-to-12 schooling and a unanimous Senate committee doing the same, it might look as if there is finally some progress in fixing the broken over-centralized national educational system.
The bill is the brainchild of education committee chairman Sen. Lamar Alexander, who claims it would “ban the federal government from mandating any sort of education standards, Common Core or otherwise.” If it becomes law, “it would lessen federal control in the education system and help calm heated debates about Common Core standards. Rather than the Feds making the decisions, the bill would allow states to create their own accountability systems and determine how much standardized tests should account for student and faculty evaluations.”
Alexander predicts he has the votes to pass the whole Senate based upon the overwhelming support of his committee, ranging from Elizabeth Warren to Rand Paul. Sen. Patty Murray is the co-sponsor. Of course, that means things have been compromised quite a bit, but it is headway made against federal control. The fact that the progressive Center for American Progress fears that the bill will weaken national standards and allow states to change one-size-fits-all “maintenance of effort” funding standards suggests things are going in the right direction.
Of course, in federal education policy, nothing is that simple. Obama officials are resisting and so are some conservative representatives who want to allow states to opt-out of federal education controls entirely without any financial penalty. House Education Committee Chairman John Kline says he supports the concept of the conservative amendment and allowed a vote on it, but it failed. The bill passed the House without a single Democrat—who objected to the loss of federal control—and was opposed by two dozen Republicans, who said the bill did not go far enough in limiting control. Kline hopes a conference with the Senate might eliminate the test mandates and work out the other details.
The House bill would make some major changes. While, like the Senate version, it would still require states to hold annual standardized tests in reading and math from third to eighth grades and once again in high school, and publish data on results, it would allow students to opt out of tests without loss of federal funds. It would largely allow states to spend federal money as they pleased and would not require them to meet federal benchmarks for success. States would still be required to intervene in local schools that need improvement, but the type and number of interventions would be up to the states. A new provision called “portability” would allow federal funds to “follow the child” if he or she transferred to a school not covered by current law.
Alexander’s response, in a The Hill newspaper interview, to conservatives who think the bill does not go far enough was, “If you leave No Child Left Behind like it is, you are leaving in place a national school board and a Common Core mandate. From a Republicans or conservative point of view, I would think you would want to move away from that.”
It will be a tough call for conservatives who have been at the forefront of the twin activities that have led to Congressional willingness to consider reform: the movements to limit the national education standards regime called Common Core, and the one in the states promoting charter schools, often at the urging of governors, are now overwhelmingly Republican. While touted as originating in the states, Common Core sputtered until President Obama used his Race To The Top legislation to promise to moderate some No Child Left Behind Act burdens and to acquire new financial grants if states adopted Common Core standards. In 2010, Obama ordered that all federal education grants be conditioned on adopting the standards. Even with this pressure, bipartisan majorities in Congress and in many states have now soured on Common Core.
The other grassroots reform of offering charter alternatives to traditional public schooling has become almost mainstream. Today, a majority of students in the overwhelmingly Democratic District of Columbia have escaped failing public schools to enroll in charters. Even Democratic New York Governor Andrew Cuomo has supported raising the limit on the number of charter schools, which has been the main teacher association strategy to stifle the idea. Democratic Mayor Bill de Blasio, the Democratic majority in the New York lower legislative body, and the teachers unions are the last holdouts against reform even in the Empire state. Even President Obama concedes American education is failing. There is a growing understanding that bureaucratization, union self-interest, and method-over-substance do not work.
One of the pioneers of entrepreneurial education and advocates for lifting governmental restrictions on innovation argues the movement must now go further. Bob Luddy, chairman and founder of a $300 million commercial kitchen ventilation company, CaptiveAire, based in Raleigh, North Carolina, created one of the state’s early charter schools, Franklin Academy, in 1998. He started with a handful of students in a single location. Franklin now has 1,650 students at five locations in two K-2 schools, two 3-8 schools, and a $9 million high school. With a 1,500 student waiting list, Franklin has perhaps the largest demand for admission in the country. After making his own charter school a success, Luddy was instrumental in increasing North Carolina’s numerical limit on charters to make similar opportunities available for other parents and their children.
Although less regulated than traditional public schooling, charters are subject to pressure from well-funded education lobbyists interested in limiting charter competition to their union-dominated public school clients. Unfortunately, they have been more successful than not. Frustrated by such charter restrictions, Luddy concluded that true reform must free itself from state bureaucratization. With the knowledge garnered by previously founding a religious private high school called St. Thomas More Academy with 180 students, he launched a classical curriculum private school he called Thales Academy, named for the Greek philosopher. Today Thales Academy boasts 1,700 students and 150 faculty in three K-5 locations and two 6-12 locations in the greater Raleigh area, with an average growth rate of 15 percent per year.
Luddy’s educational philosophy parallels that of his business: keep overhead low and deliver quality to customers. Administrators are few and sports are de-emphasized. As Luddy told the American Spectator, “A lot of people say you shouldn’t talk of education as a business, but the reality is, it is a business.” The weakest elements he sees in current education are rules that limit innovation, weak curricula, and high costs. Private education is the answer to the first, rigorous classical education to the second, and business acumen to the third. Luddy provided all three.
Thales’ test scores are higher than even charter schools. Where the average building cost for a new public school nears $100 million, Thales delivered it for $10 million. Student tuition is $5,300 per year for kindergarten through fifth grade and $6,000 for sixth through 12th grades at Thales, compared to $11,000 for the average local private school and $9,000 (in per pupil cost) for public schooling. Now Luddy wants to take his idea national. “My idea was that parents should have hundreds of choices, whereas currently if they go to the public school system, they have one maybe two. They have precious few choices. Once you open up competition, the choices will be abundant.”
It is a long road from Alexander’s first steps away from centralized administration, content-less curriculum and vanilla character training, and expensive and politicized teacher-oriented rather than student-focused education today to Luddy’s ideal of thousands of private schools offering choice by actually educating America’s youth. But, at last, there is some sense of hope.
Donald Devine is senior scholar at the Fund for American Studies, the author of America’s Way Back: Reclaiming Freedom, Tradition, and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term.
The Supreme Court is expected to rule that defining marriage to be only between one man and one woman denies equal protection under the law and is therefore unconstitutional. The court could even rule that opposition to same-sex rights is generally discriminatory under the civil rights laws. That will be the law—and that is that.
Those with religious objections will be expected to forget about it and get on with their lives. But will they be able to do so?
When Barronelle Stutzman, the Southern Baptist owner of Arlene’s Flowers, was asked to cater a gay wedding in Washington state, she held hands with the customer, pleaded she could not religiously attend such a function, and referred the customer to three other florists. Still, she was fined $1,000 for discrimination and the American Civil Liberties Union lawyers demanded such high legal fees that the business went bankrupt. The florist was still ordered to perform these services she found religiously objectionable for any future such weddings.
Photographer Elaine Huguenin politely declined to photo a gay wedding and was ordered to appear before the New Mexico Human Rights Commission even though a replacement photographer had been hired. The Commission ruled that the Religious Freedom Restoration Act exemption for religion did not apply to any business open to the public and the state supreme court concurred. In a unanimous verdict the court ruled: “When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act] in the same way as if it had refused to photograph a wedding between people of different races.” The cost for such discrimination was $6,637.94 in fines and attorneys’ fees.
In 2013 Oregon, Aaron and Melissa Klein asked to be excused from baking a cake for a lesbian wedding as being against their Christian beliefs and were threatened with a $135,000 anti-discrimination fine for “emotional distress” inflicted on the gay couple. When the Klines went on the “crowdfunding” web GoFundMe, they raised much of the fine but were denied further blog space by GoFundMe after complaints of discrimination. In a Colorado case its commission ordered a baker with religious objections to cater a gay wedding, with one commission member proposing “reeducation” to cleanse the baker and his staff of their “despicable” discriminatory language implying gay inequality.
So, the choice for those with religious concerns may be between violating their religious beliefs and being fined and ordered to comply in any event. The response of the most important institutions opposing this possibility—headed by the influential Family Research Council—is to insist upon a religious exception to discrimination charges based upon the First Amendment right to “free exercise of religion.” Yet, the presumption in such cases would still be against discrimination, requiring a special religious exemption, which in a secular legal (as opposed to legislative) culture might seem unwarranted. The probable Democratic presidential nominee Hillary Clinton seems suspicious of such an exemption. In a speech to the “Women in the World Summit” she argued that “deep-seated cultural codes, religious beliefs and structural biases have to be changed” for women to have free access to their rights, specifically criticizing the family firm Hobby Lobby for refusing contraception coverage to its employees on religious grounds.
Recognizing the limits of appeals to religious rights to those indisposed to them, religious leaders led by James Dobson and Franklin Graham responded with a Pledge in Solidarity to Defend Marriage proclaiming,
Experience and history have shown us that if the government redefines marriage to grant a legal equivalency to same-sex couples, that same government will then enforce such an action with the police power of the State. This will bring about an inevitable collision with religious freedom and conscience rights. The precedent established will leave no room for any limitation on what can constitute such a redefined notion of marriage or human sexuality. We cannot and will not allow this to occur on our watch.
The signers pledged “obedience to our Creator when the State directly conflicts with higher law” in redefining marriage and rights, reflecting back to Martin Luther King’s “civil disobedience,” refusing to obey unjust laws that are “out of harmony with the moral law.” It is true, as critic James Poulos notes, that such an appeal by religious conservatives will be seen as ideological and partisan unlike King’s appeal to universal conscience; but he assumes the goal would be to change public opinion. Such a strategy would more follow Charles Murray’s recommended course of action against excessive economic regulation, to clog the administrative machinery of government and force the authorities to concede, which come to think of it was also a large part of King’s success.
Federalism could be a resource too. Texas State Rep. Cecil Bell introduced a bill to prohibit state and local officials from using state funds “to issue, enforce, or recognize a marriage license … for a union other than a union between one man and one woman.” The gay group Equality Texas claimed the bill sought “to subvert any ruling this summer by the U.S. Supreme Court” and could at least tie the issue in litigation for years. The end of its legislative session stalled the bill but the sponsor claimed he had majority support and would be back next session to try again.
Facing a U.S. court order finding Alabama’s law defining marriage as a union between a man and a woman unconstitutional, the state’s Supreme Court Chief Justice Roy Moore ordered probate judges under his supervision not to issue marriage licenses to same-sex couples. The federal court modified its order to apply to state judicial officials but the matter is still under higher level judicial review. In May, its state senate even passed a bill 22-3 to end licenses for marriage entirely, which would become simple contracts filed with its probate offices.
Such actions are not without some popular support. The Associate Press recently found that 57 percent of Americans would allow businesses with religious objections to refuse to serve gay weddings, even though the public was evenly split on favoring or opposing gay marriage and on whether the Supreme Court should rule that gays have a national constitutional right to marriage. An earlier poll by the Christian research firm LifeWay was surprised in its national poll that 59 percent said marriage should not be “defined and regulated by the state” at all and 49 percent said “religious weddings should not be connected to the state’s definition and recognition of marriage.”
It looks like gay rights will reprise the abortion issue. The Supreme Court will probably declare a constitutional right to same sex marriage and this will encourage gay rights supporters to enforce and expand discrimination against these new rights. But opponents will be invigorated too, winning some victories locally, with more conservative states limiting the effect of the national decisions on marriage and discrimination as they have on abortion. Over the years the latter strategy has had enormous success in limiting the original Roe v Wade abortion decision and even in changing national public opinion on its legitimacy.
The next phase of the culture wars will result in some very interesting political changes.
Donald Devine is senior scholar at the Fund for American Studies, the author of America’s Way Back: Reclaiming Freedom, Tradition, and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term.
Is there anything more clear in the Constitution than the fact that “All legislative powers herein granted shall be vested in a Congress of the United States”? Nevertheless, there are currently about 23,000 pages of federal laws passed by Congress and almost 80,000 pages of regulations by executive bureaucracies.
Until recently, no one seemed to care. But in 2010, House Republicans appealed to the rising Tea Party movement by pledging to “require congressional approval of any new federal regulation that has an annual cost to our economy of $100 million or more.” In 2011, Rep. Geoff Davis introduced just such a bill, the “Regulations from the Executive In Need of Scrutiny” (REINS) Act, passed the House with the support of all 237 Republicans, and four Democrats. But President Barack Obama pledged to veto it, and a similar bill sponsored by Sen. Rand Paul died in the Democratic Senate.
Congress, of course, has always been able to override bureaucratic rules even without REINS. However, as Heritage Foundation’s James Gattuso has noted, the process is cumbersome. To try and address this, Congress adopted “expedited resolutions of disapproval” in 1996, to encourage up-or-downs vote to reverse counterproductive bureaucratic regulations. Since that time, however, Congressional reluctance to override the president and the politicians’ fears of taking responsibility for controversial regulatory acts has resulted in only one such disapproval passing Congress, allowing all other rules to go into effect. REINS is aimed at forcing legislative responsibility by requiring every rule with a large economic impact to be obtain specific approval from each house, without which the regulation would never go into effect.
With newfound Republican control of the Senate following the 2014 elections, there has been a renewed interest in passing such a bill. Of course, President Obama would still veto it and Democrats will make it very difficult to corral the 60 votes needed to pass the Senate. With this solution stymied, top regulatory expert Wayne Crews proposes creating a bipartisan commission to identify regulations that must be voted upon by Congress to remain in effect. Even that has met substantial opposition, including from some frightened Republicans.
Substantive objections to requiring Congressional approval are few and weak. The best that the progressive Center for Effective Government could do was to warn that this would allow Congress to “second-guess agency expertise and science on food safety, worker safety, air pollution, water contamination, and a host of other issues.” But even disregarding the fact that bureaucratic expertise in these areas is often more in the promise than in performance, is not voting on such issues precisely what the Founders expected Congress to do?
As Crews notes, the number of federal regulations has been exploding. “While an utterly imperfect gauge, the number of pages in the Federal Register is probably the most frequently cited measure of regulation’s scope, which unintentionally highlights the abysmal condition of regulatory oversight and measurement. At the end of 2014, the page count stood at 78,978, the fifth highest level in the Register’s history.” He estimates the real cost (mostly hidden in “guidance’ and sotto-voice threats) could be higher than the formal debt of $18 trillion.
In an important Frazer Institute essay published in What America’s Decline in Economic Freedom Means for Entrepreneurship and Prosperity, Crews notes the baleful results:
An astounding 92 million Americans are not working, positioning labor-force participation at a 36 year low, with nearly 12 million having dropped out during the Obama administration. Data point to high debt per capita, and to the highest part-time and temporary-job creation rates in contrast to full-time career positions. A popular blog laments the “slow death of American entrepreneurship” Headlines tell painful tales, like that of January 2015 in Investor’s Business Daily reporting on businesses dying faster than they’re being created, a circumstance the Washington Post had noted in 2014. Likewise a Brookings study on small business formation noted declining rates, as did a Wall Street Journal report on reduced business ownership rates among the young. One recruiter described to the Wall Street Journal how regulations undermine employment, while others point to an inverse correlation between regulation and innovation.
The World Economic Forum’s “burden of government regulation” places the U.S. 87th most onerous of 144 nations globally on complying with administrative regulations on business.
Indeed, Supreme Court Justice Clarence Thomas has recently questioned the entire logic and wisdom of regulatory delegation. First, in Perez v. Mortgage Bankers, he asked whether the Court’s precedent in Seminole Rock, requiring judicial deference to executive interpretation of regulations, improperly “represents a transfer of judicial power to the Executive Branch.” He says that decision “precludes judges from independently determining” the meaning of laws and unfairly favors the executive against the legislative branch in interpreting the law.
In Department of Transportation v. Association of American Railroads, Thomas even demanded judicial review of the Court’s whole existing standard, which delegates rulemaking to the executive as long as there is an “intelligible principle” in the law to guide the executive. Thomas argues, to the contrary, that that principle has become “boundless” today, undermining the original constitutional understanding of legislative power.
Pretty much everyone knows the regulatory system is broken and probably unconstitutionally so; but nothing ever changes. The executive loves to boss folks around, Congress is afraid to act, and the courts are so isolated they actually think the regulators know what they are doing.
Just in time to prevent despair, however, the nation’s most inventive social scientist, Charles Murray, has written another ground-breaking book, mischievously titled By the People: Rebuilding Liberty Without Permission. Murray concludes that the government is incapable of changing its ingrained irresponsibility, so he suggests that reform should be initiated by the people themselves.
Murray starts with the fact that there are so many federal regulations on so many daily behaviors that it is impossible for the regulators to enforce them. The traffic police can issue tickets on rural roads, but they cannot enforce reasonably-over-the-speed-limit driving on crowded highways. It is the same with regulators. They can only effectively police when few disregard the rules. They can then come down good and hard on them. Most settle without a trial, knowing that bureaucratic courts are rigged against them. Murray would create a Madison Fund named for the father of the Constitution to provide legal assistance to the public, which is encouraged to simply ignore the screwiest regulations. If Americans refused to obey irrational regulations and were backed by an insurance-like fund that would provide legal support to, and publicity for, those unreasonably harassed, regulators themselves would soon learn not to enforce indefensible rules.
Murray believes it would only take a few wealthy contributors to get the Fund established, and that trade associations might get into the business too. Congress might even find enough courage to act constitutionally, if enough people get involved. There are many devils in the details, but sign me up anyway.
Donald Devine is senior scholar at the Fund for American Studies, the author of America’s Way Back: Reclaiming Freedom, Tradition, and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term.
Charles C.W. Cooke’s The Conservatarian Manifesto is a delightful call for a fusion of conserva(tive) and (liber)tarian ideals into a new synthesis that can lead the right to victory after eight years under George W. Bush “ruined its reputation, giving conservatism a bad name.”
“Republicans spent too much, subsidized too much, spied too much, and controlled too much.” The GOP “abandoned its core principle of federalism, undermined free trade, favored the interests of big business” over a free market, “used government power to push social issues too aggressively” and “lost its reputation for fiscal restraint, constitutional propriety and mastery of foreign affairs.” He justifies his indictment in crisp prose and difficult to dispute facts.
The best news is that Cooke’s solution is federalism and decentralization. The difference between the left and right, he argues, is that conservatives and libertarians do not insist on telling people hundreds and thousands of miles away how to live their lives. Progressive philosophy “is built upon the core belief that an educated and well-staffed central authority can determine how citizens should live their lives.” But, he argues, Utah and New York, indeed New York City and Buffalo, are very different places and deserve very different policies. Federalism is the answer.
In one of his few references to philosophical sources, Cooke questions whether it is even possible to run things well from the center. He references Nobel laureate F.A. Hayek’s magisterial “The Use of Knowledge in Society” to demonstrate that decisions must be left to people who are familiar with specific circumstances and know directly of resources and the changes in them necessary to make rational decisions. President Obama admits that many national agencies are “outdated” and “designed poorly” but he proceeds to utilize them to dramatically change and affect peoples’ lives. The result is today’s governmental dysfunction.
The intellectual elite in the media and education simply keep repeating the progressive mantra, blind to any alternative. The differences between this refrain and conservatarianism, Cooke insists, are fundamental and “utterly irreconcilable.” The solution for the right is to build competing institutions to influence those with an open mind as it has already begun through alternative media, talk radio, journals and think tanks. He concedes these are no match to the resources of establishment progressivism but is optimistic that the young represent “a generation of nonconformists” who will adopt his conservatarianism if it is presented attractively to them.
A sound platform must begin with the Constitution, the fount of federalism. But its central message is distorted by progressive intellectualism reading its prejudices into that document. He quotes progressive icon Woodrow Wilson that “The Constitution was not made to fit us like a straightjacket. In its elasticity lies its genuine greatness.” The conservative response should be the “simple idea” that “law should continue to mean what it meant when it was adopted,” which progressives seem to understand except when it comes to the Constitution. Before the progressive revolution, courts did not find black or female suffrage hidden somewhere in the Constitution. They required amendments, as required explicitly in Article V, which were in fact adopted in the 13th, 14th, 15th, and 19th amendments. Today, rights to sodomy, gay marriage, abortion, and the like are “discovered” in a Constitution that has nothing to say about them. Although he seems to concede past anti-federalist interpretations, his basic solution is to defend that document as written, leaving issues not in the Constitution to the states and using the amendment process when national change is thought necessary.
At least in theory, Cooke’s manifesto preaches rational balance in foreign policy. He identifies himself as a firm believer in American world leadership but finds that “a contingent on the right that is hostile to the heady interventionism of the Bush years is a healthy thing indeed. [But] That there is a tendency to extend this skepticism beyond prudence into all out disengagement is worrying.” America, he believes, “can lead without needing to rush to the scene of every fire in every corner of the world.” Military spending should be privileged but the right should be in the forefront of “rallying against waste” and against using defense for pork-barrel spending.
Many conservatives will be upset with Cooke on social issues. On the positive side, he is a serious opponent of gun control and attributes the right’s success on this issue to having “the facts on its side” in a local-oriented policy (ignoring the Heller decision) that respects legitimate desires for protection and sportsmanship as well as differences between central city and rural life. Years of drug control policy (beginning with Wilson in 1914) have been a failure because it is national and cannot take into account local differences. It discriminates against African Americans, makes the U.S. the world leader in prison populations, and has contributed to the militarization of police forces. Drug policy should be decentralized to relate to local circumstances.
Cooke becomes provocative when he claims the whole idea of “social issues” is a myth. Each policy instead requires a pragmatic approach sensitive to different circumstances. Although specifying he is an atheist, he says abortion is settled by the simple and coherent argument that “a life is a life and that anybody who is interested in individual liberty is duty bound to protect the innocent.” Gay marriage is different. While Americans tend to oppose abortion—at least after the first three months—a large majority now support gay marriage.
Surprisingly, Cooke does not support the libertarian solution of privatizing marriage but does say that there is no Constitutional right to gay unions. The problem is that government is so intertwined in marriage that in a practical sense either gay unions must be recognized or gays must be deprived of too many government services, even ones libertarians recognize. Indeed, contracts cannot allow every human relationship (e.g. bondage or slavery) so the state cannot be excluded even when it is just enforcing free contracting. The solution again is local, to work out specific real-world difficulties. Minimally, those who do not wish to offer services to such marriages should not be coerced to do so.
Overall, Cooke presents a lively and interesting discussion of issues that should be widely read especially among America’s millennials and younger generations. This rising cohort should just buy the book and stop reading this review.
To older generations the book reminds one of Athena emerging full grown from the skull of Zeus. Here is an argument for some type of traditional and libertarian fusion written by an intellectual at the magazine National Review, who seems to have no idea that his magazine had developed the whole concept of conservative fusionism a half century earlier. Its founder William F. Buckley Jr., an editor Frank Meyer, and their acolytes promoted the idea of a conservatism based upon a synthesis between pursuing traditional value ends and utilizing free means to do so. While preferring “tension” to “fusionism,” both Buckley and Meyer adopted the latter as the least objectionable designation. At least it iterates better than conservatarianism.
Cooke’s omission is mitigated by the fact he is British by birth and young and so would have no reason to know this history. Yet, it is remarkable that no one at the magazine alerted him to its paternity. Perhaps no one remembers. The current mini revival of fusionism (the Heritage Foundation, Philadelphia Society, Intercollegiate Studies Institute among others) apparently passed them by. Indeed, this lineage traces back much further. As Meyer and Hayek both emphasized, the fusion of freedom and tradition was derived from the medieval synthesis of faith and reason that formed European civilization culminating in the Magna Carta, which in turn was grounded on St. Paul’s synthesis of Greek and Jew that created Western Christendom.
But these big issues are not required to enjoy this bright, reasonable to the max, and readable book. It is a good place for the younger generation to begin the long journey back from monochromatic utopian thinking, especially the modern progressive version being force-fed to them at their colleges and universities every day.
Donald Devine is senior scholar at the Fund for American Studies, the author of the fusionist America’s Way Back: Reclaiming Freedom, Tradition, and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term.
Barack Obama’s request for a formal Congressional authorization to use military force (AUMF) against the Islamic State has produced the most amazing responses. Everyone seems to be switching sides and one cannot tell the players without a scorecard.
Senate Armed Services Committee Chairman John McCain went from earlier introducing a new War Powers Act requiring the president consult with Congress if he plans military action lasting more than seven days to saying, “To restrain [the president] in our authorization of him taking military action, I think, frankly, is unconstitutional and eventually leads to 535 commanders in chief.” Ranking Foreign Relations Democrat Robert Menendez went from introducing a more restrictive AUMF in December to supporting the president’s broader authority now.
For the past several months as the Islamic State or ISIS has expanded from Syria into Iraq and created a large non-state-state “caliphate,” the U.S. has responded with air strikes to blunt its advances. The president had argued that he was already authorized to respond by an AUMF enacted in the wake of the 9/11 attack in 2001 that gave him power to use:
all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Both parties had argued this was inadequate and requested the president submit a new AUMF that specifically covered ISIL. Now neither side is sure they want one. The leftist Huffington Post fumed that Obama’s proposal represented a “rubber stamp for his perpetual war.” Coming from the opposite side, the rightist Real Clear Politics complained that the president’s new AUMF actually “prohibits him from using force” and will bind his successors from taking necessary military action.
Criticism was widespread because Obama’s proposal is quite vague. First, it did not revoke the 2001 AUMF. It did not even claim a new authorization was necessary to continue fighting ISIS, or that the earlier authorization could not still allow even greater force in the future. Does this mean that any limitations in the new version could be overridden by the earlier version? Does it mean that if the new version is approved and expires in 2018 that an ISIS war could continue afterwards under the earlier version? Or could the president’s general commander-in-chief powers override both AUMFs? If so, why is a new authorization necessary at all?
Second, the new proposal “does not authorize the use of the United States Armed Forces in enduring offensive ground operations.” This was proposed to satisfy the majority in the Senate opposed to using ground forces. But what does “enduring” mean? What is offensive as opposed to defensive action? Third, besides allowing military force against ISIS it also authorizes action against “associated persons or forces’’ defined as “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor.” What is “closely-related”? ISIS is supposedly close to al-Qaeda under the 2001 version, even though the two forces have now formally separated and even fight each other.
Former Attorney General Michael Mukaesy (and David Rivkin) support McCain in arguing that the Constitution forbids Congress from restricting the president on military policy: “Congress cannot restrain the president’s core authority to wage war, even when congressionally-imposed restrictions are minor.” Mukaesy claims, “The Founders were careful to vest responsibility for waging war in a unitary executive, rather than a multi-member legislature.” Of course, this former attorney general knows the Constitution did give Congress the power to “raise and support armies,” “provide and maintain a navy,” and “declare war,” and that the “careful” vesting in the president is merely as its “commander in chief” without any specifics.
Former Assistant Attorney General Jack Goldsmith responded: “Some of Congress’s very first authorizations of force, in the quasi-war with France in the 1790s, authorized the President to use only limited military means (U.S. armed vessels) against limited targets (certain French armed vessels). The Supreme Court recognized these limits in Bas v. Tingy.” Indeed as Goldsmith and Curt Bradley argued, “most authorizations to use force in U.S. history have been of this limited or partial nature. (For more on the constitutionality of this longstanding practice, see the evidence and arguments in this article by Barron and Lederman).”
Even the normally coolheaded seem flabbergasted by recent ISIS and other extremist attacks. To make the case that these are no longer “normal times,” Daniel Henninger cites ISIS’s beheadings in Iraq, its immolation of a Jordanian pilot, but also its Libyan offshoot beheading 21 Egyptian Coptic Christians, Nigeria’s Boko Haram’s capture of young women with its murders spilling into Niger and Chad, terrorist acts and anti-Semitism in France and Denmark, and Russian aggression in Ukraine. He criticized President Obama for his decision “not to deploy American resources” in his “thought-out, brutal and unapologetic” policy that ignores the international environment only so that he can institute a leftist domestic agenda in the United States.
While understanding his frustration, can Obama’s foreign policy really be described as not deploying American resources when he proposes a defense budget of $585 billion for the coming year? He is managing a major drone and air-centered antiterrorism policy in Iraq, Afghanistan, Syria, and elsewhere. As Huffington Post’s Marjorie Cohen stated from an opposing perspective: “Obama has launched 2,300 airstrikes in Iraq and Syria since August 8, 2014. In his six years as president, he has killed more people than died on 9/11 with drones and other forms of targeted killing in Pakistan, Yemen and Somalia — countries with which the United States is not at war.”
Moreover, coalition commander Lt. General James L. Terry believes the current limited strategy against terrorism is working. President Obama’s policies certainly can be questioned, but how do they relate to the atrocities Henninger and the public are rightly concerned about? Could they have been avoided by the most active policy imaginable including occupation of all nine nations mentioned? Even holding local leaders accountable with their lives cannot force weak and dysfunctional governments to control their angry and divided populations.
ISIS’s despicable acts should not panic the West to run off in all directions without a rational plan. The continuing problems in Iraq and Afghanistan after such great human and material cost over so many years should give one pause. So should Atlantic editor Graeme Wood’s warning that ISIS’s plan is to draw the U.S. further into the morass.
A serious Congressional debate on a new AUMF provides a real opportunity to move from emotion to serious thinking about U.S. interests and what can and should be done about advancing them in this very complex and dangerous world.
Halfway through Barack Obama’s second term it is obvious that the state of the foreign policy union is flat. Whether it is his mushy liberal internationalism, his left critics’ pacifism, his establishment’s illusional “realism,” or his right opponent’s rabid neoconservatism, all babel from set scripts that could be spewed from a child’s Fun Tab computer.
Three recent books try to break this rote by bringing fresh thinking to the table, by Barry R. Posen, director of the Security Studies Program at the Massachusetts Institute of Technology, Bret Stephens, the Wall Street Journal editorialist, and Angelo M. Codevilla, senior fellow at the Claremont Institute and professor emeritus of International Relations at Boston University. The former has just published Restraint: A New Foundation for U.S. Grand Strategy, Stephens composed America in Retreat: The New Isolationism and the Coming Global Disorder, and the latter wrote To Make and Keep Peace: Among Ourselves and with All Nations and a new essay “While the Storm Clouds Gather,” which with his review of the other two will be the focus here.
All three consider the status quo as unsatisfactory, but come from radically different perspectives as to what its actual state is. Stephens finds America tending to isolationism but Posen says just the opposite, that the U.S. is too involved in the world, while Codevilla considers the U.S. as both too involved as world policeman while not sufficiently active in what counts. While Stephens denies America’s role as “world policeman” and urges only enforcement of U.S. interests, those interests include pursuing “broken window policing” of unstable world regions, especially “those on the borders of existing free societies.” Codevilla responds “that relevance to freedom or to regional stability is not the same as relevance to U.S. interests.” Indeed, Stephens’ “fundamental assumption—that there exists a set of ‘geopolitical norms,’ which some nation or coalition of nations establishes and enforces—may be widely shared … But it is unfounded.”
In fact, such manifestations of order as historians discern, happen as individual nations each pursue their own objectives. Stephens wants us to enforce “geopolitical norms.” But whose? Only persons brought up in a latter-day Western academic environment can believe all, or even a significant part, of mankind can agree about such norms. The Chinese, the Muslims, the Hindus, the Russians, even the French are likely to have their own expectations about who is to prevail over whom, why, and how in any given circumstance. There is no reason why foreigners should see Stephens’ global cop as doing anything but advancing America’s peculiar proclivities.
Posen is likewise dismissive of neoconservative abstractions and overreach and indeed sees this as the prevailing foreign policy view today, ever since traditional liberal internationalism incorporated neocon “primacist” assumptions into Clinton administration policy, noting that the doctrine of preventive war was proclaimed before 9/11 by Madeline Albright when she was secretary of state. Foreign policy activism then merged into a doctrine for both political party establishments that he calls Liberal Hegemony. Posen’s alternative is what he calls Restraint, which he summarizes as to “focus on vital U.S. interests and at the same time reduce the pernicious consequences of the last twenty years of activism.” Posen finds liberal hegemony costly, wasteful, self-defeating, and inherently expansionist, being at war nearly twice as often since the Cold War ended as during it.
Codevilla says the problem is more fundamental and traces it much further back:
In 1919, Woodrow Wilson said that America had no other purpose than to serve mankind. At the Paris Peace Conference that concluded World War I he imagined that he could pacify all nations for all time by promoting democracy, order, and progress. But the borders he brokered spawned wars that have yet to end, while his pursuit of Progressive fantasies reaped Lenin, Mussolini, Stalin, Hitler, and Mao. Yet those fantasies remain our bipartisan ruling class’s orthodoxy. …
A hundred years later, we know all too well what we got from trying to improve the world by reordering it: a century of war and upheaval that cost hundreds of millions of innocent lives.
All three analysts see America as the dominant power in the world militarily, economically, and culturally. Posen, however, rejects Stephens’ assumption that the U.S. can be a hegemon. Posen argues that the resource balance between the U.S. and the world is changing against the former with China passing the U.S. in economic output by 2030, measured by market exchange rates. Even if such a measure overemphasizes certain factors, even a dominant U.S. has limited resources. Indeed, Codevilla says the fact the U.S. is so wealthy misleads its foreign policy elites into the “fantasy” that “they can accomplish great things without bothering to square the ends sought with the means necessary to achieve them.” Posen is equally blunt. “The continued pursuit of this policy, without the real power to match it, however, will likely prove not merely costly and counterproductive, as it has been in the recent past, but disastrous.”
Posen presents his Grand Strategy alternative by setting its goal as finding a way to balance power “in a world without a policeman.” While he agrees with Codevilla that the general objective is to assure no one nation dominates the Eurasian landmass, Posen is more optimistic that with America’s vast oceans extending from both ends of the landmass, its nuclear deterrent, and the number of possible nations available there to balance any potential hegemon such as China, or very unlikely, Russia, he considers domination only a “muted” threat, while still urging the U.S. retain some capacity to deter if such a threat did emerge. Muslim terrorism is another key threat. But it is of a different kind.
The major value of Posen’s strategic analysis is that he sets nuclear weapons as the first and most dangerous threat to the U.S. and its interests. They are the only direct threat to the actual survival of the U.S. Russia has the largest number, close to the 1500-2000 in the U.S. arsenal, and the ability to deliver them. But France, Britain, China and Israel, have hundreds, and even Pakistan, India, and North Korea are in double digits. While America might be able to defend against the later three, there is no way to stop a major Russian launch or even more limited launches from the only other possible major culprit, China. Posen believes the credible threat of nuclear retaliation is the major defense against all nuclear powers and “where possible to avoid confrontations” with nations possessing the power to retaliate in return.” He ignores the possibility of missile defense.
Both Posen and Codevilla view Islamic extremism as a manageable problem. Posen views oil as the strategic interest for the U.S. in the Middle East but also notes that the U.S. imports only 20 percent of its oil from the Persian Gulf. Still, the fall of the Gulf states to hostile extremists is a possibility that could disrupt prices worldwide and thus affect America. In general, he urges disengagement from the region and even to cut aid to Israel after pressuring it to become self-sufficient, while guaranteeing purchase of U. S. military technology, forcing it in its own interest to relate threats to costs. Still, the possible theft or access of Muslim extremists of nuclear weapons and other technology do necessitate good relations with all governments in power in the region and a stress on intelligence. These changes will take time and the U.S. must retain capabilities to reengage if conditions change.
Codevilla is characteristically blunt.
Guarding ourselves from the dangers emanating from Muslim civilization’s decay is the least of our problems, though it is emblematic of them all. These dangers stem not so much from any resources, strength, or attractiveness on the part of our enemies as they do from our own bad judgment and weakness of character…
Protecting ourselves from the troubles of the Muslim world requires that our officials dispense with crippling political correctness, and face reality. The U.S. government’s official position, as President Obama has stated repeatedly, is that the self-declared Islamic State is not Islamic. But the people who run I.S. and who actually have Islamic credentials think otherwise…Being clear with ourselves, that orthodox Islam—never mind the Wahhabi version that rules Saudi Arabia and the Sunni Gulf states—dictates savage cruelty toward any resistance to its rule, should, at the very least, keep our government from continuing to empower, enrich, and accredit persons who have done, are doing, and will continue to do harm to us. A new generation of statesmen must dispel their predecessors’ dreams that the Muslim world, and the entire “Third World,” will rise to new ways of life superior in justice and morality to our own. Once we recognize who these peoples are and resolve to defend our principles and identity, that set of storm clouds will loom small. The same cannot be said about our other foreign policy problems.
The major threat comes from an emerging China. Posen, relying on the U.S. National Intelligence Council’s measure of “aggregate national power,” expects that China will surpass the U.S. by 2040. Still, on a per capita basis, the U.S. would remain twice as wealthy as China, wealth and this estimate overvalues population benefits. Posen claims that China’s intentions are “opaque,” believing that while it is more dynamic than the Soviet Union in adopting markets, it is more hedged in by nuclear powers Russia and India (and even potentially Japan) and subject to minority unrest. Its trading success yields benefits but also allows the West to disrupt it. Given China’s lack of direct access into open seas and the difficulty of amphibious invasions, as long as the U.S. keeps naval, air, and space superiority, Chinese expansionism is limited. Still, Posen concludes China will soon “look like” a peer to the U.S., and will at least be near the top of any multipolar world even if Europe, Japan, and India develop militarily.
Codevilla is more wary about Chinese intentions. “With regard to China’s drive for hegemony over the Western Pacific, our choices are anything but simple, and are fraught with all manner of danger. They are a severe test of statesmanship.”
The military situation is straightforward: China’s strategy is to prevent interference by the United States and to establish military control over the western Pacific some hundreds of miles offshore and over as many of the islands there as possible. It has developed and is perfecting ballistic and cruise missiles, as well as aircraft and submarines optimized to do just that. It intends its small but growing force of intercontinental ballistic missiles to force the U.S. to realize that protecting Taiwan, Japan, and other nations in the region risks the destruction of American cities. China has antisatellite weapons with which it would try to destroy the space-based communications and intelligence assets on which the U.S. military relies. In response, though our government has “pivoted” naval and air forces from other regions to the Pacific, the total U.S. military inventory in the region continues to decline. More importantly, the U.S. has no military strategy for safeguarding the aircraft carriers that would be its principal instrument in a military confrontation. We have no defenses against China’s long-range missiles and no means of defending our Pacific bases against the medium-range missiles that would be aimed at them.
Codevilla’s solution: if you will have peace, prepare for war by building capacity such as missile and conventional defense, rejecting “creative ambiguity” with China by clearly specifying U.S. interests and what it would be willing to do to protect them. “Serious, clear, unambiguous policy that communicates clearly to all what the United States is ready, willing, and able to do is the key to such peace as may be possible.” Posen too recommends clarity regarding how much change in relationships the U.S. can allow for China and what “might be worth a fight.” He proposes a maritime military strategy sufficient to command the “world commons” of sea, air, and space that would limit Chinese breakout capacity, backed by limited ground forces.
In some senses, Russia policy is simpler and both Posen and Codevilla treat it so. Yet, it is the only nuclear power equal to the U.S. and the only one that can actually annihilate it. Posen especially emphasizes its weaknesses:
Russia is a somewhat bumptious middle power concerned with its prestige, security and economic development. Its conventional forces are weak and its economy cannot support anything like the legions of the Soviet Union. Russia cannot threaten the principle powers of Europe, and if Europeans small and large choose to hang together, Russia cannot do much. It certainly can make no bid for hegemony.
The solution to any possible threat is for other European powers to build their capabilities sufficiently to balance against this one dissatisfied power in the region. Posen’s dramatic solution is to end American guarantees and force allies to assume their own defenses. Germany is the largest free rider and the only one without nuclear weapons or even a credible military force, but it is also the most able to afford them. Posen suggests it join Britain and/or France to achieve nuclear deterrence and that NATO be replaced by a European Union alliance of continentals to meet conventional threats from Russia or elsewhere. Both moves would separate Europe from NATO nuclear and defense guarantees but would result in a stronger Europe that is also less likely to drag the U.S. into unnecessary wars. At the Asian end of the Eurasian continent, India and Japan should become natural balances against Russia and China, especially if encouraged to do so.
Codevilla believes Russia is determined to “reconstitute as much as it can of the old Soviet Union” which poses “a classic geopolitical challenge: the possibility that all of Europe might be dominated by a hostile power. Russia’s leaders think in Soviet terms and possess a major stock of nuclear arms.” Stephens agrees, but unlike him Codevilla recognizes Russia’s military weakness and short reach resting upon a fragile economy based on volatile oil and gas. Codevilla differs most from Posen in believing Europe would not stand even against a weak opponent.
Western Europe’s readiness to acquiesce to Russia’s domination of the former Soviet Empire makes it all too clear that, were Russia to succeed, Europe would not resist any demands that Russia might make. Thus Russia would become Eurasia’s hegemon, radiating power into the Atlantic. This is the danger for us. But we must be clear about the nature of the problem: which is not Russia’s power, but rather the civilizational collapse of Europe’s capacity to resist Russia, or the Islamic world, or anything else for that matter. This means that in order to safeguard our Atlantic flank, which is of high interest we will have to act without the help and often in defiance, of some of the countries whose independence we must protect. Though the U.S. cannot exert decisive military force deep in Eurasia, it does not need to do so, much less to fight Russia militarily anywhere. Supplying military hardware to the peoples who are threatened directly by Russian military power would be enough to make them nuts sufficiently hard for the Russians to crack as to make doing so a daunting domestic problem for Russia’s rulers. America’s main leverage against Russia’s resumption of something like the Soviet Union is economic. We have the decisive power to cut Russia off from the world through secondary economic sanctions. … Both Republican and Democratic administrations have used non-disruptive sanctions to express displeasure at Russia’s expansion first in Georgia and then in Ukraine, but cheap sanctions are not serious, and serious ones are not cheap. Our choice regarding the Russian storm that is moving toward the Atlantic is straightforward: we can stop it, probably without bloodshed, by bending short-term economic interest to long-term geopolitical interest, or we can continue the kind of crony capitalism that prefers making money over keeping our peace.
Yet, Codevilla’s strategy depends on the assumption that “notwithstanding the awful possibility that any quarrel with Russia might involve nuclear war, our resistance to its expansion is highly unlikely to lead to nuclear war because the use of such weapons would be counterproductive to Russia’s purpose.” But with Russia’s centralization of power to popular applause and with domestic institutional support for Vladimir Putin and his nationalism high, it is Putin’s purposes more than Russia’s that will matter most. Overly severe sanctions on the assumption of a rational response from such an egocentric leader might just as well lead to the awful possibility.
Codevilla’s main argument against Posen is that “the ideological thoroughness of his emphasis upon restraint” attempts to turn the instrumental necessity of prudence into a comprehensive strategy, one that assumes that enmities will work themselves out without requiring more than restraint. He has two specific charges. First, Posen assumes the U.S. nuclear arsenal will deter nuclear attack and there is no “plausible” response to such a threat. Codevilla insists Posen’s opposition is ideological since nuclear defense can work to some degree if we are serious about building it. Second, Posen urges diplomacy with problematic states that are, or harbor, terrorists. Codevilla argues that diplomacy without consequences has been the root cause of America’s weakness and induces contempt from its enemies. His solution is “holding the Muslim world’s ruling classes responsible with their lives for any violence or incitement that comes from the areas of their sovereignty or influence—that is the only thing that would turn these potentates into part of the solution rather than being, as they are now, among the problem’s principal parts.”
Codevilla believes nothing short of the creation of a new U.S. counter-political elite more in tune with popular desires for peace as the norm and action only when truly serious national interests are threatened. Stephens and the neoconservatives, he believes, define interests too broadly, which results in permanent war. Posen and the establishment seek restraint even above interests thus likewise threatening peace. Instead,
Let us follow the example of John Quincy Adams’s relations with Russia, the despotism par excellence of his day, which had proclaimed the supremacy of monarchical over republican ways and had signaled its intention to expand its settlements in North America. Adams, wanting peace and friendship with the tsar while keeping more of his settlements out of North America and asserting our own identity, left no doubt in Russia’s mind about where America stood on these matters.
The good news is that all three defer to the classic concept of national interest, relating policies to available resources and clarifying what is worth fighting for. Indeed everyone today pays at least lip service to that principle as a limit on foreign policy adventurism. While Stephens’ neoconservatism adds a broken windows policing function that expands the ideal exponentially, it is an excess paying homage to a truth. While Posen seems at times to put restraint above national interest, it is a deviation from the right principle. While Codevilla may overstate some threats to national interest, the principle is always his guide to action. All of this represents improvement over the morass of sentimentality and fantasy produced by liberal internationalism that has so long frustrated a serious rethinking of American foreign policy.
So does Martha Stewart now get her five months in Alderson Prison Camp, five months of electronic monitoring, five years of supervised probation, two years of court trials, $225,000 in fines and her reputation restored?
While finally dismissed by the trial court as prosecutorial overreach, Stewart’s original crime was “insider trading” upon which ruthless prosecutors added amorphous “conspiracy” and “lying” charges to convince the jury she must have done something wrong. Now in a dramatic decision the Second U.S. Circuit Court of Appeals in New York that oversees Wall Street has drastically reduced the range of actions that prosecutors can call “insider trading.”
Why does this matter when it concerns the rich and famous? Even my right-leaning friends have questioned my interest. They understand how unnatural it is for the law to expect someone who hears that a stock he owns will decline in value to not sell it, or buy it when the news is good—or then be subject to jail for 20 years for doing what any rational person would do. But who cares about these rich guys in New York who the data show mostly financially supported Barack Obama anyway? As a matter of fact, a majority of Americans—54 percent today and 65 percent before the recession—say they have money invested in stocks and are thus potentially subject to the same prosecutorial abuse.
Of course prosecutors like the U.S. Attorney in New York Preet Bharara, who a Time magazine cover story called the man “busting Wall Street,” seek out celebrities to assure prime media attention; but ordinary folks walk into the trap too. There have been 81 convictions and plea settlements on insider trading (and of course conspiracy) in the past five years. Securities and Exchange Commission agents recently even leaked to the press that popular golfer Phil Mickelson was being investigated for insider trading. Plea agreements are aimed at lower-level associates, threatening longer jail time unless they testify against the big fish. It works: President Obama was believed to have Bharara second on his list for Attorney General.
The new court decision concerned two portfolio managers, Anthony Chaisson and Todd Newman, who were accused by Bharara of using confidential information in an insider trading scheme to amass a $72 million profit by trading technology stocks Dell Inc. and Nvidia Corp in 2012. Yet, Chaisson and Newman’s information came through a network of investor relations representatives and analysts until it finally reached one of their employees. Trial U.S. District Judge Richard Sullivan instructed the jury that the two investors should be convicted if jurors believed there was a breach of trust that led to the release of the information—but he did not instruct them that the original leaker must have done so for personal benefit.
In overruling Sullivan, Judge Barrington Parker for a unanimous court noted that the traders were “three and four levels removed from the inside trader” and concluded: “even assuming that the scant evidence offered on the issue of personal benefit was sufficient, which we conclude it was not, the Government presented no evidence that Newman and Chaisson knew that they were trading on information obtained by insiders in violation of those insiders’ fiduciary duties.” He noted that criminal intent was required and that Bharara and Sullivan ignored two Supreme Court decisions reflecting its necessity. Bharara had alerted the media he would re-indict the traders if he lost but the appeal judges dismissed the case “with prejudice” to make re-indictment unlikely. In the initial appeals hearing, Judge Ralph Winter pointedly noted the “sheer coincidence that the judge who bought into the government’s theory” was the same judge assigned to other recent insider trading trials and asked whether prosecutors were “abating” courthouse rules that bar them from steering cases to judges they believe are sympathetic to their views.
Unfortunately, Chaisson and Newman were not Bharara’s only target. Celebrity trader Raj Rajaratnam did trade on information he knew was leaked by a corporate fiduciary but Bharara could not resist expanding the case to his younger brother Renjan who was later acquitted by a New York jury. The founding partner of Wynnefield capital Nelson Obus was acquitted as well, although it cost him 12 years and $12 million in legal expenses. The recent decision will re-open other celebrity victim cases such as SAC Capital’s Steven Cohen and Michael Steinberg. Many of the prosecutions that were settled for testimony against higher-ups—such as several manipulated by prosecutors against Newman and Chaisson—will find it very difficult to prevail in appeals.
The good news is that the appeals court decision will undoubtedly restrain future prosecutorial abuses. Success at the Supreme Court is probable. In discussing a recent case concerning Security and Exchange Commission interpretation of insider trading, Justice Antonin Scalia said he hoped to find an appeal that would not bind courts to “the prosecutor’s interpretation” of criminal law since “the rule of lenity requires interpreters to resolve ambiguity in criminal law in in favor of defendants.” If such a case “comes before us I will be receptive to it.”
Law is most dangerous when it is ambiguous and leaves discretion to ambitious executives who do not consider wider implications. As Judge Parker said at the trial, “We sit in the financial capital of the world and the amorphous theory you [prosecutors] have presented gives precious little guidance to all these financial institutions and all these hedge funds out there about a bright-line theory as to what they can and cannot do.”
Parker is merely asking for a return to the traditional Western understanding of the rule of law. As philosopher John Locke, in his foundational Second Treatise on Government insisted, a valid rule of law must be “established, settled, known law received and allowed by common sense to be the standard of right and wrong and the common measure to decide all controversies between them.” Commonwealths must govern by “established laws, not to be varied in particular cases but to have one rule for rich and poor, the favorite at court and the countryman at plow.” Economic Nobel Laureate F.A. Hayek makes the same point in his authoritative Constitution of Liberty but adds that all economic prosperity rests on such law.
It has long been this author’s belief, as expressed in his recent book for example, that the decline in the rule of law—its ambiguity, its unreasonableness, and its sheer volume—is a major reason why the present recovery has been so tepid. Any sane financier or executive must be hesitant to act in the face of such “little guidance” in how to avoid possible prosecution and ruin. This fear has enormous practical effects in suppressing entrepreneurship and the risk-taking that produces enough wealth and jobs to produce a sustained recovery.
Just consider the travail of Mr. Chaisson’s firm alone. As noted by the Wall Street Journal, the company he co-founded, Level Global, was raided by Bharara, the FBI, and SEC in November 2010, melodramatically seizing documents, data, and computers, all witnessed by the media who naturally were alerted by Mr. Bharara. Two months later Chaisson’s co-founder David Ganek, who was never implicated in the former’s technology trades, shuttered the $4 billion fund, dismissing 80 employees due to the “cloud of uncertainty” following the raid. How many other Level Globals, banks, and firms remained in business but learned the lesson that it is smarter to play safe rather than speculate in businesses that produce jobs and wealth?
This problem is not unique to Mr. Bharara or to President Obama. The explosion of insider trading charges started under George W. Bush and his Department of Justice Corporate Fraud Task Force. Nothing less than a total rewrite of the whole moribund welfare state regulatory regime to adhere to the rule of law and limited government can restore American prosperity.
Donald Devine is senior scholar at the Fund for American Studies, the author ofAmerica’s Way Back: Reclaiming Freedom, Tradition and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term.
We live in a post-Christian America, broods the insightful “natural pessimist” on morality and religion, Rod Dreher, writing two long pieces on his The American Conservative blog that feature theologian Peter Leithart coming to this dramatic conclusion about government and Christianity in America today:
We’ve fooled ourselves for decades into believing that Christian America was derailed recently and by a small elite. It’s tough medicine to realize that principles inimical to traditional Christian morals are now deeply embedded in our laws, institutions and culture. The only America that actually exists is one in which “marriage” includes same-sex couples and women have a Constitutional right to kill their babies. To be faithful, Christian witness must be witness against America.
Specifically, Leithart had predicted beforehand that “Tax exemption will be challenged, and so will accreditation for Christian colleges and schools that hold to traditional views of marriage. Once opposition to same-sex marriage is judged discriminatory, no institution that opposes it will be unaffected.” He justified his pessimism by Supreme Court Justice Antonin Scalia’s dissent in Windsor:
In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
Dreher concluded with an even darker insight, from Catholic Cardinal Francis George:
I am (correctly) quoted as saying that I expected to die in bed, my successor will die in prison and his successor will die a martyr in the public square. What is omitted from the reports is a final phrase I added about the bishop who follows a possibly martyred bishop: “His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the church has done so often in human history.”
Dreher bases his grim view from the passion on the matter exercised by the other side of the debate. He recalled that Maggie Gallagher had reported on a 2006 Becket Fund conference about the now EEOC Commissioner Chai Feldblum who, raised as an Orthodox Jew, was open enough to attend the symposium with the goal of showing gay respect for religion. Yet, it turned out to be a limited type of respect.
To Feldblum the emerging conflicts between free exercise of religion and sexual liberty are real: “When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians.” Most of the time, the need to protect the dignity of gay people will justify burdening religious belief, she argues. But that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don’t matter.
Feldblum believes this sincerely and with passion, and clearly (as she reminds me) against the vast majority of opinion of her own community. And yet when push comes to shove, when religious liberty and sexual liberty conflict, she admits, “I’m having a hard time coming up with any case in which religious liberty should win.”
And it appears that public opinion is now on the side of the gay community. Case closed.
Is America really on the verge of a civil war in which Christians replay the early persecutions? Actually, the most recent Pew survey finds only a plurality of 49 percent in the U.S. support gay marriage but also that 51 percent still think such marriages are sinful. Gays may have won the marriage law but they still lack the legitimacy they demand. The public is split down the middle on whether caterers and florists who have religious objections should be able to refuse services to gays. As far as political elites, region and urbanization play big roles. California has required churches to purchase insurance that includes abortions. Oregon required bakers to supply gay marriage ceremonies. Washington state sued to require a florist to garnish for a gay marriage. Catholic dioceses in Washington D.C. and Boston have left adoption services because forced to refer children to gay couples against church policy. The city of Coeur d’Alene, Idaho demanded married, ordained Christian ministers running a wedding chapel, marry gays. The New England Association of Schools and Colleges threatened to revoke their accreditation of Massachusetts’ evangelical Gordon College if it did not change its policy on homosexuals.
This division reflects that of U.S. politics and culture generally: left and right coasts verses middle America, blue verses red states, sophisticates verses rednecks, religious against secularists, conservatives against liberals. The difference is that power has shifted radically left through the Ivy League elite-dominated Supreme and lower federal courts. But does this mean civil strife? Leithart recommends that discriminated-against Christians witness peacefully even at the cost of reputation, economic opportunity and income or even more serious repression. James Davidson Hunter has long recommended shunning politics and especially national policy and going local to reconnect with Jesus and community. Are the catacombs, then, the only remedy for traditionalists determined to follow their faith as courts take decision-making from local control?
Fortunately, federalism is not that brittle. While granting national appeal courts a strong hand against the states on gay marriage, the most recent Supreme Court decision actually turned the matter back to the states for administrative disposition. National courts have limited ability to write their own marriage laws and even with their oversight there is much room for state action to limit the damage as traditionalists await future changes in the complexion of federal courts and law-making.
Before the Supreme Court ruled, 24 states more-or-less voluntarily adopted or accepted same sex marriage. That means remedies are potentially available in the other 26 states to consider legislative remedies to preserve, in some manner or another, marriage between one man and one woman as a unique relationship. The fact that Republicans now control two-thirds of state legislative bodies makes this possible. At least some gay marriage supporters—for example law professor James G. Dwyer–recognize there is a sufficient state interest to pass federal judicial rational-basis review in treating traditional marriage distinctively based upon the unique biological composition of such unions in producing children and perhaps even because children may benefit more under such relationships.
State regulation of marriage itself could remain minimal as at present, being basically a contract between the couple being married. Only with children and the possibility of their abuse, or in separation or divorce is state regulation of marriage per se common. Marriage could even be a purely private or religious contract without government controls other than offering an alternative state contract for those who might prefer one and for all of them being enforceable in state courts. Divorce and separation options could be specified in the original contract, perhaps with limited additional state oversight. When children are involved, the law could distinguish between different child situations: most sections of traditional state child protection law could be re-organized under the title of biological family law and new titles added for adoption and artificial insemination for other child custody originations, which clearly present different issues. Rational differences could be deduced and the state interest in each identified, including any empirical benefits to children under different relationships.
Significant privatization is essential for marriage and social policy generally if force and severe civil conflict are to be avoided. Justice Anthony Kennedy’s main concern was to provide equal material benefits to homosexuals as granted to heterosexual couples under Federal laws. That can easily be achieved by granting all welfare benefits to individuals, to children through whoever has legal custody. As far as anti-discrimination laws, these were adopted as an extreme means to combat the extreme evils of slavery and legal segregation. Over time, new aggrieved groups demanded equal remedy for less cause. Applying such laws to sexual preferences and religious disagreements on morality would be momentous. The European religious wars of the past are not appealing futures and make no mistake, a secular demand for moral equality is a religious claim under a different label. One need only look to the Middle East to see what we should want to avoid. Any real reform of marriage must take place freely in what future pope Joseph Ratzinger then called an attitude of “non-conformity” toward the dictates of current fashion.
Conditions change. Christian marriage did not even require clerical witnesses for its first millennium. The state did not control marriage in Britain until 1754 or in France until the Revolution, before America broke free of both. Catholic marriages were not recognized in the United Kingdom until 1836. Meanwhile, American federalism provided the means for cooling things off. It managed tensions well enough to take extremely diverse colonies, from Puritan New England, to Anglican Virginia, to Quaker Pennsylvania, to Catholic Maryland, to mixes of these and others throughout the colonies and early states finally developing into a nation by allowing each to develop independently and freely. It failed in 1860 with a civil war but slowly a rose again to a reasonably peaceful, just and prosperous America in modern times.
The U.S. is divided once again by strong views on social policy and wisdom suggests the solution once again is regional diversity, federalism, and a live-and-let-live culture. Without them, Dreher, Leithart, and George might just be proven prophetic.
Donald Devine is senior scholar at the Fund for American Studies, the author of America’s Way Back: Reconciling Freedom, Tradition and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term.