Constitutional Interpretations

A good little piece from over at Bench Memos on the NRO site...


Over at the American Prospect’s “Tapped” blog, someone named Ulrik Jørstad Gade offers a snide commentary on Justice Scalia’s talk at AEI the other day. What bugs Gade is that Scalia would not make a choice in the false dichotomy between “strict” and “loose” interpretation of the Constitution. He quotes the justice as saying “Legal text should be interpreted neither strictly nor loosely. It should be interpreted reasonably.” For some reason Gade finds this unsatisfactory, as though it were simply a non-answer. It is in fact a capsule version of the only satisfactory answer. 185 years ago another judge put it this way:

"What do gentlemen mean by a "strict construction?" If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said."

That’s Chief Justice John Marshall (of course — by now I am a broken record citing his example). Between the Scylla of “strict” and the Charybdis of “enlarged” construction of any legal text is a proper attention to the “natural sense,” the “natural and obvious import” of the words used by the makers of the text. That is surely what Scalia meant by the “reasonable” interpretation of the Constitution. If Gade is still in the dark, that’s okay. To find the reasonable, one is expected to reason. That’s Scalia’s job. It appears not to be Gade’s.

Sober Sound Judgement from Iraq...

Again from Victor Davis Hanson...


The insurgency in Iraq has no military capability either to drive the United States military from Iraq or to stop the American training of Iraqi police and security forces — or, for that matter, to derail the formation of a new government. The United States air base at Balad is one of the busiest airports in the world. Camp Victory near Baghdad is impenetrable to serious attack. And even forward smaller bases at Kirkuk, Mosul, and Ramadi are entirely secure. Instead, the terrorists count on three alternate strategies:

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Again, the question now is an existential one: Can the United States — or anyone — in the middle of a war against Islamic fascism, rebuild the most important country in the heart of the Middle East, after 30 years of utter oppression, three wars, and an Orwellian, totalitarian dictator warping of the minds of the populace? And can anyone navigate between a Zarqawi, a Sadr, and the Sunni rejectionists, much less the legions of Iranian agents, Saudi millionaires, and Syrian provocateurs who each day live to destroy what’s going on in Iraq?

The fate of a much wider war hinges on the answers to these questions, since it would be hard to imagine that bin Laden could continue be much of a force with a secure and democratic Iraq, anchoring ongoing liberalization in the Gulf, Lebanon, and Egypt, and threatening by example Iran and Syria. By the same token, it would be hard to see how we could stop jihadism from spreading when an army that is doing everything possible still could not stop Islamic fascism from taking over the ancestral home of the ancient caliphate.

Can-do Americans courageously go about their duty in Iraq — mostly unafraid that a culture of 2,000 years, the reality of geography, the sheer forces of language and religion, the propaganda of the state-run Arab media, and the cynicism of the liberal West are all stacked against them. Iraq may not have started out as the pivotal front in the war between democracy and fascism, but it has surely evolved into that. After visiting the country, I think we can and will win, but just as importantly, unlike in 2003-4, there does not seem to be much of anything we should be doing there that in fact we are not.


Read the whole thing...

Notes on Appeasement...

Here is a provocative piece by Victor Davis Hanson...Enjoy...


February 22, 2006
Appeasement 101
by Victor Davis Hanson
Tribune Media Services

It is easy to damn the 1930s appeasers of Hitler — such as Stanley Baldwin and Neville Chamberlain in England and Edouard Daladier in France — given what the Nazis ultimately did when unleashed. But history demands not merely recognizing the truth post facto, but also trying to reconstruct the rationale of something that now in hindsight seems inexplicable.

Appeasement in the 1930s was popular with the European public for a variety of reasons. All of them are instructive in our hesitation about stopping a nuclear Iran, or about defending the right of Western newspapers to print what they wish — or about fighting radical Islamism in general.

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But deja vu pertains not just to us, but our enemies as well. Like the Nazi romance of an exalted ancient Volk, the Islamists hearken back to a mythical purity, free of decadence brought on by Western liberalism. Similarly, they feed off victimization — not just recent defeats, but centuries-old bitterness at the rise of the West. Their version of the stab-in-the-back Versailles Treaty is always the creation of Israel.

Just as Hitler concocted incidents such as the burning of the Reichstag to create outrage, Islamist leaders incite frenzy in their followers over a supposed flushed Koran at Guantanamo and several inflammatory cartoons, some of them never published by Danish newspapers at all.

Anti-Semitism, of course, is the mother's milk of fascism. It is always, they say, a small group of Jews — whether shadowy cabinet advisers and international bankers of the 1930s or the manipulative neoconservatives and Israeli leadership of the present — who alone stir up the trouble.

The point of the comparison is not to suggest that history simply repeats itself, but to learn why intelligent people delude themselves into embracing naive policies. After the removal of the Taliban and Saddam Hussein, the furious reply of the radical Islamist world was to censor Western newspapers, along with Iran's accelerated efforts to get the bomb.

In response, either the West will continue to stand up now to these reoccurring post-Sept. 11 threats, or it will see the bullies' demands only increase as its own resistance weakens. Like the appeasement of the 1930s, opting for the easier choice will only guarantee a more costly one later on.


Read the rest...

The Fate of Europe? Fate of America?

Here is a provocative piece by Theodore Dalrymple on the future of Europe.

If one views the American left as largely pushing for a more European approach to the world (secular, socialist, appeasement, cultural passivity) then watching and analyzing the European dilemma or developments is an important way to try and understand where they want to take us and what potential problems may be....

Hat tip to Gates of Vienna.


Is “Old Europe” Doomed?

by Theodore Dalrymple
Lead Essay
February 6th, 2006

The late Professor Joad, a popularizer of philosophy rather than a philosopher in the true sense, used to preface his answer to any question by saying, "It depends on what you mean by…"—in this case, "doomed."

The word "doomed" implies an ineluctable destiny, against which, presumably, it is vain for men to struggle. And this in turn implies a whole, contestable philosophy of history.
Historical determinism has two sources: first the apparent ability of historians, who of course have the benefit of hindsight, to explain any and all historical events with a fair degree of plausibility, even if their explanations of the same events differ widely, thus giving rise to the impression that if the past was determined, the future must be determined also; and second the tendency of people to assume that current statistical or social trends will continue, or in other words that projections are the same as predictions. One has only to consider the exponential growth of a bacterium on a Petri dish, which if continued would mean that the entire biosphere would soon consist solely of that organism, to realize that projections do not necessarily give rise to accurate predictions.

Nevertheless, it is undeniable that a pall of doom does currently overhang Europe. In retrospect, the Twentieth Century may be considered Europe’s melancholy, long withdrawing roar (to adapt Matthew Arnold’s description of the decline of religion). And just as, according to Disraeli, the Continent of Europe would not long suffer Great Britain to be the workshop of the world, so the world would not, and did not, long suffer the Continent of Europe to dominate it, economically, culturally and intellectually. Europe’s loss of power, influence and importance continues to this day; and however much one’s material circumstances may have improved (just take a look at photographs of daily life in France or Britain in the 1950s and compare them to daily life there today), it is always unpleasant, and creates a sense of deep existential unease, to live in a country perpetually in decline, even if that decline is merely relative.

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The principal motor of Europe’s current decline is, in my view, its obsession with social security, which has created rigid social and economic systems that are extremely resistant to change. And this obsession with social security is in turn connected with a fear of the future: for the future has now brought Europe catastrophe and relative decline for more than a century.

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The dependent population does not like the state and its agents, indeed they hate them, but they soon come to fear the elimination of their good offices even more. They are like drug addicts who know that the drug that they take is not good for them, and hate the drug dealer from whom they obtain their drug, but cannot face the supposed pains of withdrawal. And what is true of Britain is true, with a few exceptions, everywhere else in Europe.

In the name of social justice, personal and sectional interest has become all-powerful, paralyzing all attempts to maximize collective endeavor.

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Doom or further decline is not inevitable, however, though avoidance of it requires active effort. The auguries are not good, not only because of the political immobilism that elaborate systems of social security have caused in most European countries, but because of the European multinational entity that is being created against the wishes of the peoples of Europe (insofar as they can be gauged).

The European Union serves several purposes, none of which have much to do with the real challenges facing the continent. The Union helps Germans to forget that they are Germans, and gives them another identity rather more pleasing in their own estimation; it allows the French to forget that they are now a medium sized nation, one among many, and gives them the illusion of power and importance; it acts as a giant pension fund for politicians who are no longer willing or able successfully to compete in the rough and tumble of electoral politics, and enables them to hang on to influence and power long after they have been rejected at the polls; and it acts as a potential fortress against the winds of competition that are now blowing from all over the world, and that are deeply unsettling to people who desire security above all else.

Apocalyptic thought is curiously pleasurable. Doom is too strong a word, in my view; I think it would be more accurate to say that Europe is sleepwalking to further relative decline. But we should also modestly remember that the future is, ultimately, unknowable.

Read the Rest...

Why do Civilizations Collapse?...a book review

Here is an interesting book review from one of my favorite scholars Victor Davis Hanson...

Decline and Fall
From the March 28, 2005 issue of National Review.
By Victor Davis Hanson
Collapse: How Societies Choose to Fail or Succeed, by Jared Diamond (Viking, 592 pp., $29.95)

Jared Diamond’s bestselling Guns, Germs, and Steel argued that geography trumped culture, and that the current privileged position of the West was therefore mostly attributable to the advantageous resources in, and location of, Western countries, rather than to Europe’s singular values. Despite the allure of such a politically correct exegesis — President Clinton endorsed the book wholeheartedly — there were numerous criticisms of this determinist idea of natural accidents resulting in the present-day dominance of the West. At some point a Cleisthenes, Plato, Augustine, Magna Carta, Sistine Chapel, Thomas Edison, or Albert Einstein — and the thinking and substructure that produced them — is worth more than long, indented coastlines and concentrations of iron ore. Diamond seemed to be terribly confused about the course of 2,500 years of Western history: Environment, far from being a precondition for Western success, was often almost irrelevant to it.
For example, how did the Ptolemies create an even more dynamic civilization than that of the earlier dynastic pharaohs, when they inherited from them a supposedly exhausted and increasingly salinized landscape? Or why did the palatial culture of Mycenae prove to be a dead-end society, and yet the radically different Greek city-state centuries later blossomed in the exact same environment? More immediately, are we to suppose that there are underappreciated micro-climates that separate Tijuana from San Diego, strangely different soils on the two immediate sides of the Korean DMZ, and something about those ever-changing lagoons of Venice that made it irrelevant in late Roman times, a world power in 1500, and once again a backwater by 1850? Did the environment of Britain improve from A.D. 400 to 1700 while Rome’s declined, thus explaining why the former outpost of the Western world became its new center and vice versa?

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Diamond’s natural determinism and condemnation of the West’s pathological means of exploitation are nothing new, but represent a synthesis of the previous pessimisms from Marx and Toynbee to Paul Ehrlich and Kirkpatrick Sale. Most scholars, however, would accept the notion that societies like those of the Egyptians, Romans, Aztecs, or Ottomans — civilizations that, unlike those of Diamond’s tiny settlements at Pitcairn Island or Vineland, had millions of inhabitants — at some period in their growth, evolution, and maturity inevitably declined; whether abrupt or insidious, such breakdowns were largely due to government overcentralization and rigid bureaucracy, affluence and leisure among a bored elite, high taxation, and depopulation in the countryside — all of which made rulers insensitive to change and unable to react rapidly to the radically new stimuli of invasion, novel religions, internal dissent, and, yes, occasional natural challenge

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Yes, Americans once clear-cut the northeast, but now it has more forests than ever — because, among other things, technology moved us beyond wood-burning fuels. Iceland lost its topsoil and trees and thus many of its early settlements — but modern technology, liberal government, and Western jurisprudence ensure that its current Scandinavian descendants inhabit a successful society despite its cold, denuded, and unfertile island. And if Diamond believes that is so because Icelanders finally got smart and now follow his environmentally correct nostrums, he should ask why that is so — or what would happen in a decade should they magically be transferred to Haiti or Yemen and, in turn, Haitians and Yemenis were to take over Iceland.

Read the rest...

Bush's Legacy?

Is it possible that Stevens will retire within the next year? He is 85 and if he does, expect the Roberts and Alito nominations to be child's play. Here is an interesting article exploring this possibility.

One interesting aspect of the article is the Stephens (the most liberal on the court) actually wants a Republican to pick his replacement...interesting...I just don't know how true it is. Hat tip to Confirm Them...

If Bush is able to actually get another Conservative on to the Court, he three picks that shift the Court back onto its Constitutional moorings could be one of his most enduring legacies...

Next Court Pick: Mother of All Battles
Jason Barnes and Jim MeyersThursday, Feb. 2, 2006

Speculation is that Justice John Paul Stevens, the court's most liberal member, will retire in the near future, possibly as soon as this year.

The appointment of a conservative replacement would definitely push the court solidly to the right – and likely touch off a furious fight from Democrats.

An analysis published in the Wall Street Journal found that conservative Justices Antonin Scalia and Clarence Thomas agreed on court decisions 92.4 percent of the time. Stevens agreed with Scalia-Thomas on those 787 cases only 55.2 percent of the time, the lowest percentage of any justice. The score marks Stevens as more liberal than former ACLU counsel Ruth Bader Ginsburg.

As presently constituted, the Supreme Court is balanced, with four liberals (Ginsburg, Stevens, David Souter and Stephen Breyer) and four conservatives (Scalia, Thomas, Alito and Chief Justice John Roberts).

Anthony Kennedy defies a label, and thus becomes the swing vote on many issues.

Stevens has not made any formal announcement regarding his retirement, nor is he known to be in poor health. But he is 85 years old, and rumor has it that he hopes to have his replacement named by a Republican president.

"The buzz in Washington is that Stevens was appointed by a Republican president and he considers himself one that plans to retire under a Republican president," Gary Marx, executive director of the conservative Judicial Confirmation Network, told NewsMax.

"After seeing the type of highly qualified nominees that the president has chosen in Roberts and Alito, I would think that would give him a lot of confidence that the president's not just picking ideologues to go up there, but he's picking careful jurists that understand their role as justices."

So Washington insiders say the court's current term could very well be Stevens' last.

Read the rest here...