State of the Union

Hope for American Schools?

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.

Gay Marriage After SCOTUS

Flickr/Ted Eytan

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.

How to Fight the Bureaucratic State

Official White House Photo by Pete Souza
Official White House Photo by Pete Souza

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. 

A New Birth of Fusionism

President Reagan meeting with William F. Buckley in the Oval Office. / Wikimedia Commons

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.

The ISIS AUMF Scrambles Washington

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.

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.

Can U.S. Foreign Policy Be Saved?

Official White House Photo by Pete Souza
Official White House Photo by Pete Souza

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.

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.

A Victory for the Rule of Law

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.

Federalism Can Still Save Religious Liberty

American Life League / cc

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.

Devolution Is Superior to Secession

The 1996 Salzburg Seminar was a prestigious international gabfest organized to discuss “cross-cultural perspectives on conservatism.” Worldwide political parties and movements designated “conservative” at home or considered as such by Westerners were invited to explain their views on conservatism, to discuss what they held in common. With representatives from across Europe to Turkey, and even from China, obviously there was little commonality.

Playing by the rules, this U.S. representative suggested that localism and community could be a unifying ideal for the right, at which the French representative nearly swooned, furiously insisting that conservatism was precisely the opposite. It was love of the patria and of its representative the national state, whose point was seconded immediately by the Turkish representative. The Spanish, Italian, Belgian, and several Eastern European national representatives actually denounced local nationalistic movements as threats. But when I suggested sub-national movements were alive even in Britain, the idea was so preposterous the room immediately broke into laughter, with the Englishmen questioning my very sanity.

Two decades later Scotland massed 45 percent of its population willing to break 300 years of ties to become independent of England. Inspired, a million Catalans went to the street to demand independence, and its regional legislature voted to hold a (non-binding) referendum. Basques threatened the same. Flanders nationalists in Belgium promised that if Scotland received European Union representation, so would they. The Italian Northern League, organized around the ideal of separation, cheered Scotland on. Even Bavaria every so often threatens splitting from Germany. Norway and Sweden did separate in 1905, as did the Czech Republic and Slovakia in 1993.

All Europe was centralized under divine right kings and nationalisms at great cost in blood and treasure throughout the 16th and 17th centuries, forcing previously independent nations and peoples into the larger units we know today. Germany and Italy were not unified until the 1870s. Hundreds of independent states were dissolved over the period, but most of the successors retained local customs and institutions, many nursing old and developing new grievances against an often remote and unresponsive state. Even France still has restive Basques, Bretons, Savoyans, and others demanding local rights or independence.

Americans certainly have not been immune to the secession impulse, of course, including a great civil war costing millions of lives. While that war presumably settled the matter, even today a recent Reuters/Ipsos poll found that 23.9 percent of Americans would like to see their state pull away from the union, up from 18 percent in 2008. In the previous year under George W. Bush, 32 percent of liberals thought breaking away would be a good idea, compared to 17 percent of conservatives. Today under Barack Obama, 30 percent of Republicans and even 20 percent of Democrats would have their state secede.

Former congressman and presidential candidate Ron Paul even claimed a recent “growth of support for secession” inspired by Scotland and demonstrated by the one million Californians who supported dividing the state into six entities, saying this “should cheer all supporters of freedom.” He was congratulated for raising the issue by Daniel McCarthy of The American Conservative, but McCarthy responded that secession is not a principle of liberty. Not only does secession often trade one master for another—as Scotland would do under the European Union and NATO—but there is no guarantee the new state would foster internal liberty. McCarthy argues persuasively that for Scotland and America,

secession and union are questions of security and power, which undergird prosperity, self-government, and individual freedom. For much of the rest of the world, poisoned by ethnic and sectarian hatreds, secession means nationalism and civil strife. In both cases, breaking up existing states to create new ones is a revolutionary and dangerous act, one more apt to imperil liberty than advance it.

Indeed, Paul’s own original article on the matter viewed secession sentiments mostly as pressure on a national government to limit its power over local units as opposed to being valuable in itself. He specifically urged “devolution of power to smaller levels of government,” which can be a very different thing from secession. While secession is problematical as McCarthy argues, devolution of power within a national government is essential to liberty.

While unsuccessful as secession, Scotland’s threat forced even unionist party Prime Minister David Cameron to promise greater local autonomy not only for it but for Wales, Northern Ireland, and even England itself, although federalism will be challenging for Britain since England holds 85 percent of the population. While England basically invented local government with the parish (and transferred this ideal to America while it was being suffocated at home), it has long marginalized local government and restricted its powers. Margaret Thatcher, for all of her love of freedom, overrode local governments with abandon. Scotland’s message just might awaken England to its historical ties to local and regional government. Some useful ideas could be found by dusting off its 1957-1960 report of the Royal Commission on Local Government.

Centralization’s historic claim to greatness was ending Europe’s wars, especially those of religion through the 17th-century Treaty of Westphalia. Despite the claim by an overwhelming number of historians and commentators ever since, ending the 30 Years War did not end wars on the continent, much less elsewhere. A long series of dynastic wars followed, including the worldwide War of Spanish Succession, which Americans call the French and Indian War. More important, the 30 Years War was not a religious but a dynastic struggle. Catholic France actually fought on the supposed Protestant side. Major dynastic wars continued right up to World War I.

Westphalia actually created a number of powers sufficiently strong to challenge each other in alliances to decide which would rule, leading to the instability of the period. The world is more peaceful today because only one power emerged from World War II and the Cold War. While the U.S. has engaged more than was prudent, as McCarthy emphasizes, “a world consisting of more states more evenly matched, would almost certainly not be more peaceful.” Those who understand the fragility of freedom “should appreciate that all states are aggressive and seek to expand, if they can—the more of them, the more they fight, until big ones crush the smaller.”

American hegemony properly controlled thus assists world peace, and secession could threaten international and domestic liberty. Still, secession in its tamed form of federalism and decentralization presents the secret to domestic liberty, especially in larger states. The ability to devolve power to the lowest levels possible—first to the individual, then to the family, to free associations and businesses, to the community, to local and regional government, and only to the national state when no other institution can perform the function—allows freedom to adjust to community differences and make individuals more satisfied with their national state.

Where secession sentiments are high, it is a strong indicator that too much power is centralized. It is a lesson for Britain but, alas, increasingly one for the United States as well as a glance at recent federal court decisions immediately confirms.

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.

Race and Place in America

In 1993, Jesse Jackson told fellow Chicago activists: “There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery. Then look around and see somebody white and feel relieved.”

On Brown v. Board of Education’s 50th anniversary, Bill Cosby reminded the NAACP how we all get upset about black “people getting shot in the back of head over a piece of poundcake” and “we’re outraged. The cops shouldn’t have shot him.” But we don’t ask “What the hell was he doing with the poundcake in his hands?”

Responding to criticism from younger protestors about calling for restraint after the recent police shooting in Ferguson, Missouri, civil rights activist Rev. Al Sharpton replied: “To our young folk, we understand the anger. We are angry, but you are not more angry than [the 18 year old shot by a policeman, Michael’s Brown’s] parents … This is not about generation. There are young people who want justice who protest peacefully. Some are angry and out of control, other are taking advantage of it … But let me tell you there is a difference between an activist and a thug.”

There certainly is racism and hatred in American communities but the normal stereotypes are not all that can be said about the matter.

Harvard University’s Ryan Enos has conducted a little experiment in Boston that is relevant. He had two young Mexicans stand on a station talking in Spanish and then board trains leaving in rush hours to white suburbs with few Hispanics over a two-week period. Travelers were given questionnaires before and afterwards and tested against a control group of commuters without the Hispanic testers. They were asked their views on amnesty programs for illegal immigrants, more legal immigration from Mexico, and making English the official language.

Enos’ paper for the National Academy of Science concludes that “exclusionary attitudes can be stimulated by even very minor, noninvasive demographic changes, here even the introduction of only two persons.” Those who witnessed the Mexican travelers were “far more likely” to oppose amnesty and more legal immigration and “somewhat more likely” to support official English. He predicted that the continuing demographic changes throughout the West expected in the future will increase “intergroup exclusion” and conflict, although it may be ameliorated somewhat by the pass of time. Critically, it was not that conservatives became more anti-immigrant but that liberals and moderates came to think more like those on the right, a finding Wall Street Journal science writer Robert Sapolsky found “pretty depressing,” especially coming from Boston.

This, of course, merely confirms Robert Putnam’s classic “E Pluribus Unum” and James Q. Wilson’s “Bowling with Others” research a decade ago that this phenomenon goes well beyond race. As Putnam summarized, “inhabitants of diverse communities tend to withdraw from collective life, to distrust their neighbors regardless of the color of their skin … to expect the worst of their community and its leaders, to give less to charity and work on community projects less often, to register to vote less, to agitate for social reform more, but have less faith they can make a difference, and to huddle unhappily in front of the television.”

A recent survey by Dorceta Taylor of the University of Michigan and paid for by the liberal environmental group Green 2.0 found that even the top progressive private and governmental environmental organizations were race conscious. Of the 3,140 paid staff of the leading groups such as the Sierra Club, Natural Resources Defense Council, and the Nature Conservancy, 88 percent were white. On their governing boards 95 percent were white. Only 15 percent of staff at green government agencies was non-white. Even the Environmental Protection Agency increased minority representation only for a bit after it was created a half-century ago but could not retain it even with government affirmative laws requiring it to do so.

The Russell Sage Foundation’s Residential Segregation by Income, 1970-2009 by Kendra Bischoff and Sean F. Reardon found that residential income segregation grew by 29 percent over these years. In 1970 only 15 percent of Americans lived in areas of either concentrated poverty or wealth. Today, a third of families live in those extremes and only 42 percent live in middle-class neighborhoods.

While claiming that neighborhood segregation had “ended,” Manhattan Institute for Policy Research’s “The End of the Segregated Century: Racial Separation in America’s Neighborhoods, 1890-2010” by Edward Glaeser and Jacob Vigdor also conceded: “The decline in segregation since 1970 has been no less dramatic than the earlier rise. As of 2010, dissimilarity had declined to its lowest level in a century and isolation to its lowest level in 90 years. This shift does not mean that segregation has disappeared: the typical urban African-American lives in a housing market where more than half the black population would need to move in order to achieve complete integration. The average African-American lives in a neighborhood where the share of population that is black exceeds the metropolitan average by roughly 30 percentage points.”

In education, with all of its laws and efforts directed toward diversity, low-income black children’s isolation has increased. It is a problem of both poverty and race. The share of black students attending schools that are more than 90 percent minority grew from 34 percent in 1989 to 39 percent in 2007. In 1989, black students typically attended schools in which 43 percent of their fellow students were low-income; by 2007, this figure had risen to 59 percent.

So, race is part of the problem of living together but so is economic and cultural choice to be with people like themselves. When diversity is forced or occurs naturally, the minority might be discouraged from becoming part of the community or decide themselves to remain separate, either way promoting alienation and distrust and, occasionally, ending in gunfire and riots. A half-century of national laws to enforce diversity and control its effects have neither increased integration nor community trust. The U.S. Attorney General came to small-town Ferguson representing national power but with little real authority to affect results other than identifying with the victim, inflaming police supporters, but not strongly enough to satisfy followers of Mr. Brown. The Governor flew in with the state police and the National Guard but looked like a foreign occupying power. Is there no other way?

One looks with hope to a new book discussing these and other problems of community titled Why Place Matters: Geography, Identity and Civic Life in Modern America by Wilfred McClay and Ted V. McAllister. The editors see themselves swimming “against the principle currents of our times,” globalized commerce, communications and transportation and trying to finding room for “place” because we are “corporal beings, grounded in the particular.” Sounds promising.

The book grew out of an academic conference, and unfortunately it shows. The editors and authors are very sensitive to their work being viewed as “just a symptom of backward-looking nostalgia” and so they cleave closely to academic specialties so as not to lose a proper scholastic tenor. The general result is very high-level discussion of very narrow academic issues but not much light on building or repairing civic life in modern America. Most pieces assume the current setting of national leadership, local followership and the current structure of local governance that has dominated such discussions for the past century.

Articles by McAllister, Peter Peterson, and William A. Schambra come closest to breaking the mold by tracing our current problem to the founders of modern public administration such as Woodrow Wilson who viewed it as a science to replace the decentralized “parochialism” of earlier America. Even these authors basically equate community to existing local governments, including very large ones. While the remainder of the articles tend to be narrowly academic although often interesting, most end as they initially feared, sounding too much like simple nostalgia. They mostly skirt that local governments themselves are too big, centralized, and bureaucratic—but mostly too big with power not local but at county, state, and national levels.

A Weekly Standard article by Christopher Caldwell is symptomatic of the problem. He traced the present Ferguson disorder to a 1876 decision by St. Louis City not to incorporate the rest of the county under its rule (as the progressives demanded) making “the shortsighted decision to slough their rural precincts” resulting in the 90 current municipalities with their “rinky-dink” forces unable to solve big modern problems. What escapes Caldwell is that the progressives took the other tack of expanding County power to control the municipalities, although St. Louis escaped the worst of the county bureaucratization so dominant elsewhere by allowing the municipalities to survive and have some say in administering the area.

Harvard’s, Indianapolis’, and New York City’s innovative Stephen Goldsmith is mentioned in the Place book but not his concept of “municipal federalism,” to break large and even small cities down to real community levels where citizens have actual power to make decisions. As long as Washington, Jefferson City, and St. Louis County are making the real decisions local citizens will not increase their participation as the Place authors hope. The black citizens of Ferguson saw—or thought they did—who was in charge when the U.S. Attorney General and governor took control. Blacks already have 70 percent of the population and could be in charge of the Ferguson police force already if they thought it was worth the effort. But they left it to Washington.

As Vincent Ostrom’s The Intellectual Crisis in American Public Administration demonstrated, centralization’s single solution cannot substitute for decentralization’s forcing of internal cohesion through compromise or for the external need for cooperation with other governments. Externally, small local governments can contract with other small governments to achieve efficiencies of scale, as noted by the U.S. Advisory Commission on Intergovernmental Relations, and very many have. Small cities have privatized many functions unions would have frustrated in larger units. Small cities can create independent business districts that now represent a large proportion of the country’s office space. National governments simply issue orders to subordinates while locals must compromise with equals.

As George W. Liebmann’s Neighborhood Futures shows, face-to-face groups can resolve internal conflicts because they are facing each other. They can go deeper into the community to form neighborhood associations, street governance committees, amenity cooperatives, neighborhood councils, street closing regimes, block associations and the most popular, Residential Community Associations. Actually more people live under fully voluntary RCAs than live in cities over 200,000 in population; but they are basically invisible to progressive leadership even in counties, much less in Washington.

Empowering local institutions would be radical, questioning the whole progressive assumption that the experts know better. But how long can we ignore that forcing resolution from the top does not allay local fears and actually creates more discord? Militarized police and armed troops do not make for civic peace. Is it not time America finally recognizes what made it great, as the marvelous Alexis de Tocqueville taught us, was that people in free communities actually can resolve matters between themselves better than the experts?

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.

An American Return to Peace

The Quiet Man has only recently been moved to the top bracket of director John Ford’s great films. As with so many Ford classics, this hilarious but wise story of an Irish-American former boxer (played by John Wayne) is often ignored. The film contains many highlights, but Wayne’s fight with the Irish bully (Victor McLaglen) remains this political science teacher’s favorite.

Wayne’s character went to Ireland to recover psychologically after accidentally killing another boxer in a professional match. Reluctant to fight again,—“quiet”—he is forced into the ring by McLaglen. Locals insist the battle be held under formal Marquis of Queensbury rules to demonstrate their sophistication. The rascally McLaglen professes to agree and circles the area continuously shouting “Marquis of Queensbury rules.” When Wayne follows suit, the burly McLaglen lands an enormous blow to the back of Wayne’s head, knocking him down and almost out.

If only everyone followed Queensbury’s rules, even the many who profess them. That reality is the specialty of foreign policy political scientist par excellence, Angelo Codevilla, who taught for many years at Boston University and is now a fellow at the Claremont Institute. His earlier classic Advice To War Presidents was aimed at the experts, but now he has written a book for all of us, To Make and Keep Peace: Among Ourselves and with All Nations. Unfortunately, most experts in the field never quite caught the Quiet Man lesson. Codevilla tries to educate them.

None of the major foreign policy schools get it. Pacifism enables the bully and finally promotes aggression and war, neither very peaceful. Liberal internationalism denies that nations can be bullies when we understand them better and teach them to be good democrats. Realism thinks we can convince the McLaglen’s to see their better interest in making a deal rather than fighting. Neoconservatism has Wayne become a bully too, not only winning the fight as Wayne does but to reform McLaglen and the whole countryside of unsophisticated rubes to accept the American way, by force if necessary. Codevilla stresses that the word “peace” is foreign to them all.

Codevilla builds his theory on the radical idea that the purpose of foreign policy, especially for the U.S., is peace. This was the ideal that motivated the Founders like George Washington, who urged the nation to “cultivate peace and harmony with all” as its “only” foreign policy goal and John Quincy Adams who set “the first and paramount duty of the government is to maintain peace amidst all the convulsions of foreign wars, and to enter the lists as parties to no cause other than our own.” If war was required by a vital national interest, the goal was to return to peace as soon as possible. This remained U.S. national policy right up to the 20th century and the rise of philosophical progressivism in both political parties.

Progressive leader Woodrow Wilson changed it all, synthesizing Elihu Root’s utopian faith in rational treaty-making, Nicholas Murray Butler’s belief in the obsolescence of war, and David Starr Jordan’s conviction that just men can reform the world. Wilson believed “America’s mission is to bring peace and unity to mankind.” He “had replaced the compass of concrete peace with a utopian creed” expressed in his idealistic Fourteen Points program for the post-World War I world and a League of Nations to manage it thereafter. While his vision was frustrated by his traditionalist successors Warren Harding and Calvin Coolidge, ever since Franklin Roosevelt progressivism has ruled the foreign policy roost; and the U.S. has been in a constant state of war.

Codevilla holds that all four of today’s foreign policy ideologies are based upon the same progressive idealism. The only way back to a national interest of realism based on peace is to reject its premises. “Gradual and sinuous as wise changes in U.S. foreign policy would have to be, the intellectual challenge would have to begin simply with reversing the progressive movement’s erasure of the distinction between America’s interest and that of mankind, between what is ‘our business’ and what is ‘their business,’ between peace and war.” What is our business? Militarily defending the nation is, by building the best possible missile defense and “behind that shield to wield diplomacy and military power to guard our peace and win our wars.”

Codevilla can offend advocates for peace by his hard Machiavellian assumptions and conclusions (Codevilla is a translator of The Prince). Human beings “naturally crave excuses for treating political opponents as bad people.” In response, the job of 21st century Americans is “giving no offense and suffering none.” And “When others trouble our peace, we impose it upon them by war—war as terribly decisive as we can make it.” Machiavelli warned “never do an enemy a little harm.” But his anchor to peace rests in the same realism. A “green-eye-shade comparison of costs and benefits” is required before any military action. “Discernment of what does and does not impinge on our peace is essential because there is no such thing as a small war.” As much justification as the elder Assad gave by supporting the truck-bombing of U.S. troops in Lebanon, Codevilla argues against U.S. troops in Syria today. If early America could live with despotic czarist Russia, it is possible to harmonize relations with China and Russia today if we respect their business and they ours.

“America’s paramount interest is remaining itself, remaining the place to which would-be Americans born elsewhere come to live in a unique way, without a ruling class.” “‘All men are created equal’ is the heart and soul of what makes America different from the rest of the world. Preserving that exceptional nature is American statecraft’s natural, paramount objective.” The greatest problem with permanent war is that it needs a permanent elite to run it. This ruling class in both parties turns a war on terror into a surveillance operation against “all citizens equally rather than plausible enemies discriminately, it stumbled into a state of domestic siege that foredoomed America to domestic strife.”

Elite power over “homeland security,” in turn, “fueled its sense of moral-political-intellectual entitlement to nation-build fellow Americans” as well as foreigners, labeling dissenting citizens terrorists, producing animosity “among ourselves.” The Department of Homeland Security’s Hot Spots of Terrorism and Other Crimes in the United States, 1970-2008 classified persons “suspicious of centralized federal authority” or “reverent of individual liberty” as “extreme right-wing terrorists.” So U.S. citizens become monitored by increasingly militaristic police.

Perpetual involvement in international disputes leads U.S. leaders to expect foreign nations to follow their ways. These leaders “promote the same recipe of secularism and sex roles” to a very traditionalist world as they do domestically. All U.S. embassies celebrate gay rights for a month each year, with Secretary of State Hillary Clinton proclaiming “gay rights are human rights and human rights are gay rights.” As a result, Islam comes to believe that the U.S. “exports godlessness, immorality, the dissolution of families” to them. This affects us too. American troops originally complained of Afghan troops using street waifs for sex and for torturing dogs but Pentagon higher-ups set up training to show American troops how to tolerate their ways for the greater good of winning the forever war.

The world is dangerous and war is sometimes necessary. Strength is required—but it should be to keep the peace. As Ronald Reagan put it, “Peace is the highest aspiration of the American people. We will negotiate for it, sacrifice for it; we will not surrender for it. Our forbearance should never be misunderstood. Our reluctance for conflict should not be misjudged as a failure of will. When action is required to preserve our national security, we will act. We will maintain sufficient strength to prevail if need be, knowing that if we do so we have the best chance of never having to use it.” Reagan made mistakes in foreign policy, especially in Lebanon, but he did remove the troops sent there after deciding it was not worth the cost. More important, Reagan committed fewer troops than any recent president other than Jimmy Carter and negotiated with the Soviet Union in a way that led to the end of the Cold War in peace, without firing a shot.

Codevilla brings a healthy dose of reality and common sense into the foreign policy debate. His realism will shock many in today’s Oprah-sensitivity world. But getting back to basics should be welcomed if Americans are ever to return to peaceful times. This Irish reviewer personally has a higher threshold for threat and a lower one for requiring “respect” than does the author, but Codevilla’s logic is impeccable. The goal domestically and internationally is peace, and that is achieved by being strong and minding only our business and not that of others. A healthy debate is taking place over foreign policy these days, especially among Republicans, and Codevilla should be the invaluable quiet man in guiding an intelligent discussion.

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.

Gay Marriage as Modern Marriage

In her essay “Can Marriage Be Saved?,” Boston College Scholar in Residence Laura L. Garcia suggests we may be looking at marriage from the wrong perspective:

I conclude that given the values dominating our culture today, the ideal marriage might be that between two homosexuals. There is no possibility that children will enter the picture unexpectedly to create burdens on the couple’s time or money or freedom. Partners are free to leave whenever the relationship no longer suits them, with no repercussions on children and little financial impact. There are likely to be few financial difficulties, in fact, since both partners are likely to be working and in general handle their accounts separately. Sexual desires are gratified without risk of pregnancy. If children are seen as a desirable addition, perhaps they can be adopted or artificially produced—poster babies for Planned Parenthood’s slogan ‘Every child a wanted child.’

Perhaps only someone like her who views marriage as a sacred union created by God between one man and one woman can see the essential issues. Well before homosexual marriage became a public policy issue, heterosexual America had already redefined marriage. In the modern dispensation, the purpose of marriage was not lifetime mutual support whose love’s goal, if not necessarily actual fruit, was biological children; it instead had morphed into an alliance of two individuals maximizing their own interests in any way that suited them, dissoluble anytime either party desired. Transitioning from men and women to same-sex partners was a small step once marriage was so redefined.

The facts are hardly in contention. As far as the prospects for traditional marriage go, Richard Reeves of the Brookings Institution recently outlined them in The Atlantic:

It is too late. Attitudes to sex, feminist advances, and labor market economics have dealt fatal blows to the traditional model of marriage. Sex before marriage is the new norm. The average American woman now has a decade of sexual activity before her first marriage at the age of 27. The availability of contraception, abortion, and divorce has permanently altered the relationship between sex and marriage. As Stephanie Coontz, the author of Marriage, A History and The Way We Never Were, puts it, “marriage no longer organizes the transition into regular sexual activity in the way it used to.” Feminism, especially in the form of expanded opportunities for women’s education and work, has made the solo-breadwinning male effectively redundant. Women now make up more than half the workforce. A woman is the main breadwinner in 40% of families. For every three men graduating from college, there are four women. Turning back this half century of feminist advance is impossible (leaving aside the fact that is deeply undesirable). There is class gap here, however. Obsolete attitudes towards gender roles are taking longest to evolve among those with the least education.

His solution is to promote parenting as the rationale for marriage, plus stay-at-home dads for the lower classes since most of these breadwinners are women anyway. But why should liberated moderns accept either sacrifice? As the great economic historian Joseph Schumpeter predicted almost a century ago, once

men and women learn the utilitarian lesson and refuse to take for granted the traditional arrangements that their social environment makes for them … and … as soon as they introduce into their private life a sort of inarticulate system of cost accounting – they cannot fail to become aware of the heavy personal sacrifices that family ties and especially parenthood entail under modern conditions and of the fact that…children cease to be economic assets.

No one can complain that moderns have been slow to learn the lesson, with childbearing collapsing in Europe except among mostly Muslim immigrants, and barely holding on at replacement levels for European- and African-Americans; it’s even abating among Hispanic-Americans.

Gay marriage is hardly immune from the same rationalizing process; indeed, it illuminates it. Read More…

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The VA’s Bureaucracy Always Wins—Until Now

Veterans Affairs Secretary Eric Shinseki has been forced to resign. This bizarre solution to the VA scandal fires the Senate-confirmed cabinet chief so that the career staffers responsible for the mess can run the organization for the year or so it would take to find, confirm, and educate a new secretary, just before a new president would choose someone else. The Washington bureaucrats always seem one step ahead of the politicians.

President Barack Obama was reportedly “madder than hell” about the VA scandal. Before Shinseki’s auto-da-fé, ultra-liberal Washington Post columnists Dana Milbank and Eugene Robinson actually criticized the formerly sacrosanct president for not taking charge. Even the Democratic Senate Veterans Affairs Committee held investigative hearings finding that 40 patients at a Phoenix VA hospital reportedly died while waiting to be treated. Its VA leaders reported patients only had to wait 26 days for an initial appointment, when the Inspector General later found the wait to be 115 days. An April memo by a deputy undersecretary disclosed “gaming strategies” to hide the delays that the IG confirmed were “a systematic problem nationwide.”

Congressmen from both parties expressed shock and demanded Shinseki’s head, ignoring the numerous Government Accountability Office and IG reports going back decades that warned against such shenanigans, currently gathering dust in Congressional back offices. In fact, irregularities and poor service have been reported since VA’s inception. Shortages in primary and other medical care are offered as excuses for failure, but such shortages are not due to a lack of funds. The VA is popular with voters, and its military “service” organizations are such powerful lobbyists that its budget increased from $27 billion in 2003 to $57 billion in 2013, a 106 percent increase. Even with such funding, the IG found that 84 percent of veterans had to wait two weeks or longer to be treated.

Congress demanded reforms for many years, but nothing much changed. After many requests, the VA announced in 2000 that it would finally overhaul its decrepit, quarter-century-old scheduling process. After $127 million and nine years, the VA gave up the project without adopting any improvements. Implementing a medical records system that would integrate military and veteran systems was abandoned after almost $1 billion in spending. The bureaucracy cites a RAND study claiming that the VA is actually superior to private medicine, but that study was based on VA records the GAO and IG findings now undermine. Clearly no one in the private sector has such long wait times (although the government’s Medicaid comes close).

The real test is that only 16 percent of veterans identify the free services of VA as their primary source of medical care, and only one-third more even use it in emergencies. They know what they are doing. The best estimate finds that veteran suits against the VA yielded $845 million in malpractice payments over the past decade. The New England Journal of Medicine found that private practice pays about 20 percent of malpractice suits brought against them, compared to 25 percent for VA, a rate one-quarter higher. The decorated and wounded Army General Shinseki did not know what he was up against: “I can’t explain the lack of integrity among some of the leaders of our healthcare facilities,” he said. “This is something I rarely encountered during my 38 years in uniform. I cannot defend it because it is indefensible.” House Veterans Affairs Committee chairman Jeff Miller had warned “his people were not telling him the truth” even as Shinseki visited more facilities than any previous secretary, an absolutely corrupt bureaucracy lying right to his face. Read More…

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Musical Beauty Makes a Comeback

Talk about reclaiming the culture is endless on the right these days, but it is all much too vague. One exception stares us in the face, but we mostly miss him. He was at the Philadelphia Society 50th Anniversary meeting of right intellectuals, discussing music and the arts, his usual amusing self debunking the ugliness of popular culture while staying optimistic about the future. Everyone enjoyed him but he soon sunk in the memory hole. After all, it was just good old Bob Reilly.

Robert R. Reilly is too familiar, clever, incorrect, and ironic to attract mass attention. He is a specialist on foreign policy and is often pigeonholed as such. But his true expertise is music, and he has much to tell us about this most systematic of the arts. He wrote a wonderful book a decade ago that has been mostly unread, but deserves a serious revival. It is called Surprised by Beauty and is available from Amazon. If one wants to do something about the culture, buy it now.

Even a cultural illiterate like your author can hear that music took a radical turn for the worse in the early 20th century. The change affected both popular and classical music, but the highbrow arts led the way and are the source of the problem. Its origins go deeper still, to the 19th century roots of nihilism under the influence of Friedrich Nietzsche, who questioned all Western order, value, and beauty. Nietzsche’s adherent in music was the incredibly influential Arnold Schoenberg, the dominant intellectual force in 20th century music. He composed originally to reconcile Brahms and Wagner, and was praised by Richard Strauss and Gustav Mahler. By 1910 Schoenberg wrote his Theory of Harmony, which remains to this day one of the most influential music theory books ever written, developing a large and influential school of artists who helped spread his radical views.

Reilly explains that the center of Schoenberg’s revolt was his rejection of tonality. He denied tonality existed in nature as the property of sound itself, a view of music held from ancient Pythagoras right up until his day. His revolutionary view was developed not from scientific advances in acoustics but from Schoenberg’s desire to escape all of the ancient restrictions on sound, saying “I am conscious of having removed all traces of a past aesthetic.” As Reilly clarifies:

Schoenberg took the twelve equal semitones from the chromatic scale and commanded that music be written in such a way that each of these twelve semitones be used before any one of them is repeated. If one of the semitones is repeated before all eleven others are sounded it might create an anchor for the ear, which could then recognize what was going on in the music harmonically. The twelve tone system guarantees the listener’s disorientation. Schoenberg proposed to erase the distinction between tonality and atonality by immersing man in atonal music until, through habituation it became the new convention. Then discords would be heard as concords. As he wrote, ‘The emancipation of dissonance is at present accomplished and twelve-tone music in the near future will no longer be rejected because of discords.’

Schoenberg was not exaggerating. He overcame 2,000-year-old conceptions of tonality, concord, and harmony to set discordance as the new standard for modern music. But once beauty in the classical sense was upended, why stop there? His disciple, French conductor and composer Pierre Boulez, took it further and applied the same principle of tone row pitch to all the elements of music—pitch, duration, tone production, intensity, and timbre. Another French disciple, Edgar Varese, asked why even 12-tone at all? Even he could not abandon all order, though. The American composer John Cage went the whole way and simply “created noise through chance operations.” Now you know why it sounds so ugly. That is its point.

This dreary story of the nihilistic revolution in music—as well as in culture generally—is somewhat well known, but Reilly lets us in on the little secret that this revolt in music has spent its course. Read More…

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Rousseau’s American Heirs Fight the Final Prejudice

Joseph Bottom’s An Anxious Age has stirred up quite a debate over his thesis that progressivism has recently switched from setting reason and science as first principles toward eradicating prejudicial beliefs as its prime ideological imperative. The left has always had an attraction to both, however. Jean-Jacques Rousseau’s romanticism has always challenged Rene Descartes’ rationalism, but after the bureaucratization and failures of the rationalized welfare state in recent times, the former’s aesthetic critique has become the more attractive argument for modern progressives.

What both strains of leftism had in common was repulsion against tradition. A typical dictionary defines prejudice as “a preconceived opinion that is not based upon reason or actual experience.” Descartes and the rationalists objected to tradition’s irrationality, and Rousseau and the romantics objected to tradition’s experience. It is curious that both rationalist and emotive progressivism first validated prejudice in the movement’s early eugenicist days. The progress in progressivism was from traditional prejudicial socialization to future reason, or social accord, or hopefully to both. So it is not surprising that prejudice became their common political target.

In the postwar United States, legal segregation in public schools and accommodations was outlawed, and the civil rights acts of 1957, 1960, and 1964 promoted equal treatment and voting. Antidiscrimination regulations were extended to sex and ethnicity. Feminism won the right to vote in 1920, an Equal Pay Act in 1963, no-fault divorce in the 1970s, sexual harassment protection in 1986, and guaranteed free contraception in 2010. With the 2013 Supreme Court decisions, same sex marriages were granted equal federal benefits with traditional marriages and it appeared that the same thinking would also void traditional state marriage laws. The Violent Crime Control Act of 1994 set criminal penalties for hate crimes committed on the basis of the actual or perceived race, color, religion, national origin, ethnicity, or gender of any person.

This year’s 50th anniversary of the 1964 Civil Rights Act illuminates the value of shifting to a focus on the elimination of prejudice. Yes, the left itself questions these laws’ success, complaining that racism, sexism, and gender discrimination are still rampant—but that is efficacious for the cause. Certainly, access to voting is now universally available and overt discrimination has decreased, although formal discrimination complaints have actually increased. There is a large African-American middle class. Women lag male average income but, when wages are controlled for time and type of work, they have mostly achieved equality of income. Never-married women actually out-earn single men.

But there is another side to the story. The ratio of black to white income in 1947 before the civil rights laws was 52 percent; this increased to 60 percent in 1969 by the end of legal segregation—but before the mass government antipoverty and affirmative action programs had effect. By 2012 the ratio was only 57 percent, no improvement in 40 years. Worse, black unemployment has been twice as high as that of whites ever since data has been collected. Racial workforce participation rates are equally dramatic. Some of these disparities were offset by government welfare programs, though in absolute numbers whites received more funds.

As Robert Rector has noted the greatest differences are in education and marriage, both of which are important social supports for earned income and employment. Most black urban education is dysfunctional, but marriage makes the biggest difference in poverty levels: the poverty rate for married blacks is only 7 percent compared to 36 percent for unmarried blacks and 22 percent for unmarried whites. Yet, to the left traditional marriage seems part of the problem. Indeed, fighting prejudice against lesbian, gay, bisexual, and transgendered citizens by traditionalists is at the top of progressivism’s present agenda. Read More…

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Reagan’s Philosophical Fusionism

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Everyone on the right these days claims Ronald Reagan. Neoconservatives, libertarians, social conservatives, moderates, and the rest each have a favorite quote. He was a complex man with complex thoughts, allowing every ideologue to pick out-of-context phrases. Even many of those claiming a multifaceted Reagan transcending a single ideology simplify him through his concept of an ideal city uniting the contending ideologies through politics and power.

A prominent conservative leader just told the largest annual gathering of the faithful that their mission was to rebuild Reagan’s city upon a hill, to make Jonathan Edwards’ idealistic dream vibrant once again—to change the world as they did earlier under the former president. The speaker urged paleoconservatives pushing “a more restrained foreign policy,” neoconservatives wanting a more active foreign policy, libertarians demanding “homosexual rights,” and “everyone else” (social conservatives were not addressed) who supported “reduced federal spending” to unite in applying their “basic values and principles to our fast-changing world.”

Reagan’s image of a three-legged stool was urged by the speaker as:

a graphic way of describing the successful effort of Frank Meyer and William F. Buckley, Jr. to turn a movement from a sort of philosophical debating club into a political force. They thought that people who differed on some important policies or emphasized very different issues could be persuaded to work together. Meyer called it “fusionism” and argued successfully that these factions shared basic values—freedom, free markets, and traditional values—and the same enemies … equally threatened domestically by a growing and intrusive government … and internationally by the world communist movement.

Notice that these different ideologies were called factions that needed to be convinced to work together. But they also supposedly shared basic values. Which is it? Traditionalism was mentioned in the quote but it was not given content and otherwise was ignored in discussing policies or preferences. There was talk of “values and principles” but none about community or family. Communism was mentioned as the glue that held the three-legged stool together, but now conservatives are divided on national defense too. The only value cited that they did agree upon was: “It worked—fractious as ever, conservatives began to come together and actually elect people to public office.” That is what conservatives were to fuse upon once again. The city on the hill needs public officials and the job of the conservative movement is to elect them.

That exhortation had little to do with principles. Beneath some rhetoric, it was about power, force, elections. Conservatism was specifically distinguished from a debating club on philosophy and was congratulated for moving beyond one to become a political force. Here conservatism was not about an ideal city, which was a hoped-for result, but about creating a political coalition. Coalitions do not require principles at all. In fact, the idea of a natural coalition between libertarian-individualists and traditionalist-conservatives was developed by the great political scientist Aaron Wildavsky, who was a Democrat. He argued there were four types of political cultures and the liberal-egalitarians and nationalistic-fatalists were naturally in coalition against libertarians and traditionalists, although circumstance and practice could divide the types differently. As the conservative spokesman noted, libertarians, traditionalists, and others can be persuaded to work together, if only to defeat enemies both consider worse. It is valid to label this fusing a conservative coalition, but a coalition that is based on power rather than principles, on votes rather than values. Philosophical principles and values are something entirely different.

How did Meyer, Buckley, and Reagan think about fusionism? Fusionism to them was a philosophical concept. It was a philosophy that considered the principles of freedom and tradition as naturally interrelated in a tension whose resulting moral force created Western civilization and its American offshoot. Tension (the term Meyer preferred to fusion) was a force that could hold traditionalism and freedom together, which made both part of one potential whole. It was not the unitary logic of an ideology from a single principle deducing necessary conclusions, but a synthesis, a synthesis that Reagan said described modern conservatism. Yes, he conceived a city on a hill, but one always fighting to uphold both principles; for he also argued “freedom is never more than one generation away from extinction.”

The idea that both principles were required was lost when progressivism insisted that tension, balance of power, duality, pluralism, and decentralization could all be unified under a single science of administration. By mid-20th century, the triumph of progressivism was complete. Both freedom and tradition would be subject to science. What Meyer et al.—explicitly following F.A. Hayek—did was to give the old ideal of synthesis new life. In fact, it did take a “debating club” at Buckley’s old National Review to draw out its conclusions. The freshly stated fusionist synthesis inspired a generation on the right and did become successful enough that some of its principles did have a brief life under Reagan’s administration. Once he left, however, political leaders only interested in the coalition as a step to power lost the sense of interrelatedness between the two principles and became confused and then exhausted. That is the problem today.

Even under Reagan there were factions that only viewed their own single ideology as the whole. There was always a coalitional aspect to “fusionism,” but those leading the coalition at the beginning understood the necessity of both freedom and tradition. They also understood that while communism was the preeminent threat, it was—as the founding conservative document, the Sharon Statement, put it—only “at present” the greatest threat. Anti-communism was not a principle but one aspect of a tradition that justified self-defense, a pragmatic necessity to preserve freedom and tradition. Likewise, libertarianism by itself had no rooted value structure even to minimize theft under the guise of reducing inequality. Traditionalism alone could become authoritarian and rigid but, as libertarian Hayek noted, free societies require customs and traditions to sustain them.

While factions will always exist, leaders of such single ideological perspectives necessarily will be viewed as partisans of that faction and will not be accepted as movement-wide leaders. Only one who internalizes the necessity of both liberty and tradition can make it work. That was Reagan’s secret to success and the only path forward. He was not a carpenter of stools but a synthesizer of Western wisdom, recognized as such by a sufficient number to be granted power. What the conservative movement needs most today is more philosophical debating clubs and less talk about power. If it gets the former right, the latter will follow.

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 Office of Personnel Management during his first term.

Russia’s Blunder Needs a Realist’s Response

Photo by Erin A. Kirk-Cuomo  (released)
Photo by Erin A. Kirk-Cuomo (released)

It is amazing to find the Obama administration, the old George W. Bush foreign-policy hands, and the foreign-policy establishment all generally shocked at Vladimir Putin’s aggressiveness in manipulating Crimea’s breakaway from Ukraine and incorporation into Russia. Putin is restarting the Cold War, they cry. Why would he do such a thing? He is either evil or crazy.

Actually, this should have been anticipated. Who says so? The last Republican secretary of defense—for President Bush and later for Barack Obama—says so, and he said it long before the troops moved in.

By happenstance, after an earlier quick-read of Robert Gates’s Duty, I happened to be re-reading his book closely during the present crisis and came upon the following passage, in which Gates is reflecting back to the Bush administration:

What we did not realize then was that the seeds of future trouble were already sprouting. There were early stirrings of future great power rivalry and friction. In Russia, resentment and bitterness were taking root as a result of economic chaos and corruption that followed the dissolution of the Soviet Union, as well as the incorporation of much of the old Warsaw Pact into NATO by 2000. No Russian was more angered than Vladimir Putin, who would later say that the end of the Soviet Union was the worst geopolitical event of the twentieth century …

Meanwhile other nations increasingly resented our singular dominance and our growing penchant for telling others how to behave, at home and abroad. The end of the Soviet threat also ended the compelling reasons for many countries to automatically align with the United States or do our bidding for their own protection. Other nations looked for opportunities to inhibit our seeming complete freedom and determination to shape the world as we saw fit. In short, our moment alone in the sun, and the arrogance with which we conducted ourselves in the 1990s and beyond as the sole surviving superpower caused widespread resentment … rekindled and exacerbated by President Bush’s “You are either with us or against us” strategy as we launched the war on terror … The invasion of Iraq … Abu Ghraib … Guantanamo and “enhanced interrogations” all fueled further anti-American feeling.

The average American would be shocked that so much of the world looks at the U.S. in this manner. We are the good guys. We always act with the best motives. We want freedom, democracy, and prosperity for all. We sacrifice for the rest of the world: look at the toll of lives, wounds, and treasure from Afghanistan and Iraq alone. How could the rest of the world be so ungrateful?

It is always helpful to see the world from another point of view. It is clear Putin has a very different one, as he spelled out in detail in his 40-minute March 18 speech announcing that he would accept the result of the Crimean plebiscite to leave Ukraine and rejoin Russia. He started his remarks 1,000 years ago with the baptism of his namesake Vladimir in Crimea and the conversion of Russia to Christianity. Catherine the Great incorporated Crimea into Russia in 1783, before the U.S. Constitution, and it remained Russian for 170 years. Putin spoke of Russians fighting the British and French in the 19th-century Crimean War. He mourned the thousands of Russians who fought the Nazis there, and all the war dead, civilian and military. He criticized the Ukrainian-born Nikita Khrushchev for transferring Crimea to Ukraine in 1954 at his own “personal initiative” and complained Russia should have gotten back the peninsula when the Soviet Union expired in 1991. It was not surprising that 90 percent turned out and 93 percent voted to join Russia. Read More…

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Ukraine and Syria’s Common Path to Resolution

When columnist Peggy Noonan asked, “Whose Side Are We On?” about Ukraine, the answer was obvious. The people in the streets of Kiev were demonstrating for freedom against an authoritarian president, Viktor Yanukovych, who was shooting them down. We Americans were all with the demonstrators for freedom and democracy. We knew it in our hearts.

Yet, Yanukovych had been in power only four years, elected in what had been called “an impressive display of democracy” by outside observers. In the face of the protests, he agreed to European demands for early elections and a more representative cabinet. But the demonstrators refused, forcing the imperious Yanukovych to flee in what seemed like a victory for the people. But was it democratic to overthrow an elected government? Does democracy matter here?

The first parliamentary acts of the new government under speaker and interim president Oleksandr Turchynov were to issue mass murder charges against the outgoing leaders and downgrade Russian from a second official Ukraine language. Governor Mikhail Dobkin of Russian-speaking Kharkiv region called the ski-masked Pravy Sektor demonstrators “fascists” for the violence of their demonstrations and the prejudice shown in their demands. The mayor of eastern Sevastopol resigned under pressure from Russian-speaking Ukrainians and his self-appointed replacement promised to resist the western Ukrainian government. Russia’s Vladimir Putin recalled his ambassador, cut aid, warned against oppressing the Russian-speaking majority of Ukraine’s eastern regions and then, in the guise of protecting his fleet, introduced troops into Russian-language-speaking Ukrainian Crimea.

Ukraine is closely divided between primarily Ukrainian-speakers and Russian-speakers, as demonstrated in each of its razor-thin, passionate elections. The great majority of the demonstrators were from the Western-oriented Ukraine-speaking areas. Were the Ukrainian people as a whole or just its westerners the ones to support? It is true that the old Soviets coercively settled Russians in the eastern regions specifically to weaken the westerners, but they are there now and provide pretext for Putin if not support. A civil war would be a disaster for all, even Putin, whose own Russians could turn on him. While we are for Ukraine, Russia is the only nation state other than the U.S. that has sufficient power to cause a nuclear holocaust. Experts all agree the U.S. cannot do much militarily, and minor moves like U.S. sanctions often irritate without results. It is in everyone’s interest to calm things down even if our hearts are inflamed.

Our hearts speak in Syria, too. The U.S. government, the media, and probably most Americans consider themselves on the side of the Sunni majority rebels against the brutal dictator Bashar al-Assad and his Alawite/Shiite led coalition of minorities. He is not democratic, and liberty is rare, so the choice seems simple. But the effective rebel military units are radical Islamists. The moderates the U.S. is supporting are mostly in exile or ineffective, so much so that the U.S. supported replacing Free Syrian Army leader Gen. Salim Idriss with Abdul-Illah al-Bashir, an Assad defector. While top Washington Post foreign correspondent David Ignatius was still celebrating the replacement, the moderate military commanders of all five battle areas in Syria and nine other military leaders called Idriss’ replacement a “coup” and were breaking ties with the U.S. backed Supreme Military Council.

Meanwhile, the two top Sunni Islamic rebel groups—the Nusra Front (designated as al-Qaeda’s official group) and the Islamic State in Iraq and Syria (the previous official al-Qaeda)—were fighting each other; ISIS leader Abu Khalid al-Suri was killed the next day. At the same time, Saudi Arabia announced a new Syria policy leader, Mohammed bin Nayef, an aggressive supporter sending of more arms to fellow Sunni fighters on the scene now planning to send them antiaircraft and other heavy weapons. Read More…

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Protecting the Constitution from Executive Order

Official White House Photo by Chuck Kennedy
Official White House Photo by Chuck Kennedy

President Barack Obama has made it absolutely clear that he will rule by Executive Order for the remainder of his term. Republicans and independents have decried this as an unconstitutional power grab, a usurpation of authority granted by the Constitution to Congress, while Democrats are mostly too embarrassed to defend what they so strongly opposed under George W. Bush and Richard Nixon.

A conservative response should begin by observing that the U.S. Constitution is not as legally neat as the protesters suggest. While most folks focus on the uplifting sentiments of the Bill of Rights to liberty and property, the essential Constitution is all about power and how it is divided. The progressive myth of a legalistic constitution of rights is just that, a fable to cover its own view of political power. The Bill of Rights was not even part of the original document. The fundamental Constitution is outlined in its Articles, dividing power between legislative, executive, judicial, state and amendment institutions. But the boundaries between them are anything but clear.

Abraham Lincoln suspended judicial habeas corpus and controlled speech during the civil war without legal support from Congress and actual opposition from the Supreme Court. The succeeding Reconstruction Congress impeached the president for merely attempting to replace his own cabinet and when unable to convict him made his veto a nullity by strict party rule, rigged voter lists in the South, and effectively unicameralizing the Senate and House under a joint committee of Republican leaders. Andrew Jackson directly refused to implement a Supreme Court decision supporting Cherokee property rights, distaining the court to enforce its ruling if it could because he would not.

Isn’t the Supreme Court supposed to have the last word on these matters? In challenging President Bush’s attempt to replace regional U.S. Attorneys against Congressional opposition in 2006, Democratic Rep. Henry Waxman said such differences between the executive and legislature must be umpired by the courts. He and his classmates were taught in law school that “the Constitution was what the Court said it was.” Bush replied he would not allow his Attorney General to enforce a judicial contempt order even if the court issued one and that was that. More recently, President Obama announced he would not enforce federal anti-drug laws against states with marijuana legalization laws and refused to deport certain illegal immigrants. Back in 1988, Congress passed a Civil Rights Restoration Act specifically nullifying the Grove City Court decision and in 1991 passed a civil rights bill overruling five Supreme Court decisions by name.

Even with their relative decline in recent years, the states are not without redress either, as the marijuana legalization laws demonstrate. States have created constitutional amendments, laws, and attorneys general suits to circumvent national laws and opinions on marriage, abortion, racial preferences, gun restrictions, the Real ID Act, Obamacare (by more than half the states), and many others. Indeed, many federal laws and court decisions are administered by state bureaucracies that differ in their interpretation and enforcement greatly, as Alabama and Massachusetts in fact do. Amendments to the Constitution have been passed on many critical subjects over the years and on several occasions the mere threat has changed federal policy.

Taxes would seem one area where the legislature must predominate. No taxation without local representation was the principle complaint justifying the American war for independence. Today the effective imposition of taxes by creative executive regulatory interpretation—such as the recent increase in fuel emission standards—is the rule rather than the exception. Judges have required state legislatures to increase taxes to upgrade schools for minorities or to redress other presumed shortcomings for all kinds of special interest purposes. A St. Louis federal court in effect ran the local school for decades. Since the Supreme Court has ruled that the Obamacare penalties were taxes, exemptions and changed regulatory requirements are in effect taxes passed by the health and treasury secretaries alone.

President Obama is by no means the first to govern by Executive Order. Read More…

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The Wall Street Journal’s Mythical Mideast Moderates

The media has missed the real story in former Defense Secretary Robert Gates’s new book, Duty. While coverage stresses his criticisms of President Barack Obama, Vice President Joe Biden, and the White House staff, his main target is the Pentagon, about which he writes, “no one knew what anyone else was doing.” The Pentagon’s byzantine administration ignored many of Gates’s commands and largely defeated or delayed his proposals. This is a common concern amongst those serving in top government positions, but the Pentagon is the most stubbornly labyrinthine.

Concerning the Afghanistan and Iraq interventions, Gates writes, “We entered both countries oblivious to how little we knew.” He generally concludes we should be more cautious in getting involved anywhere in the world and that we should plan our exit from the very beginning. Duty imparts much good sense. When NPR asked for his reaction to the media’s handling of his book, Gates’s greatest regret was that quipped sound bites from ideological partisans had displaced discussion of its deeper issues. Foreign policy should be serious business.

Unlike much of the media, the Wall Street Journal is indeed interested in such a debate, and argues that today’s greatest foreign-policy peril is an American “retreat” from “Syria, Lebanon, Iraq, and beyond.” Its editors criticize President Obama and “Rand Paul Republicans” for wanting to “avoid the world’s conflicts with good intentions and strategic retreat.” Indeed, most Americans “want to forget about” the U.S.’s strategic obligations, despite threats from Sunni extremists igniting car bombs in Lebanon and capturing cities in Iraq, Shi’ite Hezbollah moving anti-ship missiles into Lebanon to threaten Israel, and Shi’ite Iran advancing toward nuclear arms.

“The dangers are that the violence in Lebanon devolves into another civil war or that Hezbollah provokes Israel into a response like the 2006 war,” while Syria’s civil war spreads to Iraq and the entire Middle East. Much of the blame, the editors concede, goes to “the heavy-handed sectarian rule of Shiite Iraqi Prime Minister Nouri al-Maliki,” but they believe major responsibility rests with U.S. refusal to help the “moderate Syrian opposition,” and Obama’s withdrawal from Iraq without leaving sufficient forces to act “as a bulwark against al-Qaeda’s revival and Iran’s regional domination.”

The editors represent an important voice in the debate and deserve a serious reply. First, withdrawal from Iraq was not a partisan decision. George W. Bush set the troop removal schedule, and neither his administration nor Obama’s could successfully negotiate for a residual force against the wishes of Iraq’s new leaders (whom both administrations spent American lives and money to place in power). More importantly, in the thousand-year war between Sunnis and Shi’ites, who are we retreating from? Even moderates on both sides of Islam view their opposites as heretics. The U.S. began by supporting Shi’ites in Iraq against a Sunni regime, but in Syria supported Sunni rebels against a Shi’ite/Alawite ruler. Whose side are we on? Read More…

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