SG Nominee Kagan Stiffs Specter, by Ed Whelan
Bench Memos/NRO, Mar 04, 2009
After Solicitor General nominee Elena Kagan inadequately answered the written questions submitted by Republican senators on the Judiciary Committee (see my posts “Elena Kagan’s ‘Vacuity and Farce’”—Parts 1, 2 and 3), ranking committee Republican Arlen Specter sent Kagan a letter expressing his dissatisfaction with her many non-responses and stating that they were “inadequate for confirmation purposes”. Specter asked that Kagan provide real responses.
In a letter response, Kagan has stiffed Specter’s request. She asserts that “some questions … cannot be answered consistently with the responsible performance” of the Solicitor General position and repeats the arguments that I rebutted in my Part 2 post. (She seems to have abandoned the ones I addressed in my Part 1 post.)
Kagan also states that in providing her non-responses she “was cognizant of the way other nominees to the position of Solicitor General have replied to inquiries from senators”. She provides two examples, neither of which provides meaningful support for her position. First, she quotes a snippet of an answer from Paul Clement, but fails to point out the remaining eight sentences in Clement’s answer that provide a meaningful response to the question. Second, she quotes a statement by Seth Waxman that it is the “established practice of the Solicitor General not to express views or to take positions in advance of presentation of a concrete case.” But Kagan is not the Solicitor General (nor, of course, was Waxman if and when he used this sleight of tongue to evade answering a question). She’s the nominee, and she has (to borrow from her own letter) “a responsibility to address senatorial inquiries as fully and candidly as possible.” She’s plainly not doing that.
In light of Specter’s recognition that Kagan’s answers are “inadequate for confirmation purposes”, Specter’s sole option is to vote against Kagan, and other Republicans should follow his lead.
Wednesday, March 4, 2009
The International War on Drugs Hits Close to Home - Celebrating 100 years of failure and futility
The International War on Drugs Hits Close to Home. By Brian Doherty
Celebrating 100 years of failure and futility
Reason, March 4, 2009
The United Nations is currently celebrating the 100th anniversary of the “international war on drugs.” Yes, it was in 1909 that 13 countries joined together in the “International Opium Commission” to halt the Chinese opium trade. And how did that go? According to the Associated Press, although strongman Mao Zedong managed (or so his government claims) to make significant inroads in the 1950s, nowadays “Government statistics put the number of known addicts in China at 1.2 million, including 700,000 heroin users, more than two-thirds of them under the age of 35.”
Strangely, after a century's worth of attempts to forcefully stamp out two perfectly legitimate and useful human urges—to make a decent living, and to pleasurably alter our consciousness—drug warriors are no closer to victory. The chief of the UN’s Office on Drugs and Crime, Antonio Maria Costa, even confesses to feeling “somewhat frustrated” that his impossible job is so darn impossible.
While international despair over drug war failure raises its—utterly valid and appropriate—head, folks in the United States, which is the undisputed kingpin of this losing war, have begun noticing some of the horrible side-effects of drug war enforcement coming home to roost. In Arizona, legislators are alarmed at the growing importation of Mexican drug gang-style kidnappings (already happening at a rate of around one a day in Phoenix), and fear that military-level street violence will cross the border soon as well.
Showing the ultimate in political frustration, Arizona Attorney General Terry Goddard actually agreed with a CNN reporter that when it comes to marijuana legalization, there’s “a strong argument for getting that debate front and center and finding whatever options we might have to cut off the devastation in Mexico. What we fear here on the Arizona border is the cartel on cartel battle is going to end up spreading across the border.”
Sure, the U.S. has already suffered great fiscal drain and hideous human costs in terms of lives wasted in prison from its drug war, but the chaotic and hideous violence it engenders in Mexico has been mostly a matter for tourists to worry about. A recent study from the Cato Institute noted 131 U.S. citizens killed from 2005-2008, explaining that police in many border states besides Arizona (and border patrol agents) increasingly find themselves up against the violence of the Mexican drug trade.
Nor is it only libertarian think tanks taking notice. In just the past couple of weeks, sources from international news and analysis mavens ranging from Stratfor to Foreign Policy have reported on something that is not news to most Mexicans: The violence associated with the drug war in Mexico, almost all of it attributable to the fact that drugs are illegal, is reaching absurd levels, including endemic kidnappings, beheadings, and the use of military weapons like rocket-propelled grenades in public battles. Nearly 6,300 murders in Mexico can be laid at the feet of the drug trade for 2008; and so far 2009 has already seen over 1,000.
Politicians might not see it, but just about anyone else with a moment’s thought will acknowledge that we don’t usually see that sort of rampant bloody murder associated with the trade in legal items—however good or bad for you they might be.
This past week, however, has shown some signs of drug war sanity from unlikely places. Foremost among them was a report issued by the Latin American Commission on Drugs and Democracy, where three former Latin American leaders, Fernando Henrique Cardoso (former president of Brazil), César Gaviria (former president of Colombia), and Ernesto Zedillo (former president of Mexico), admit, as they wrote in a Wall Street Journal op-ed that ends by considering the decriminalization of pot possession, that:
Prohibitionist policies based on eradication, interdiction and criminalization of consumption simply haven't worked. Violence and the organized crime associated with the narcotics trade remain critical problems in our countries. Latin America remains the world's largest exporter of cocaine and cannabis, and is fast becoming a major supplier of opium and heroin. Today, we are further than ever from the goal of eradicating drugs.
The reactions of U.S. drug policy makers, including former drug czar John Walters and another unnamed official, were more interesting and more depressing. They insisted that spiraling Mexican drug violence is in fact a sign of desperation, and that turf wars indicate that the good guys are actually getting closer to winning.
They aren’t. They really aren’t. Drug control efforts have little effect on the price and availability of cocaine. Afghanistan continues to pump out opium, with any success in some areas overwhelmed by failures in others. Total production went up to a record high in 2007, followed by a very small decline in 2008, which even U.N. drug eradication officials stress can’t be credited to government eradication efforts. The vaunted U.S.-funded “Plan Colombia” has failed to seriously limit coca production while harming small Colombian farmers—and at great expense. West Africa has a growing cocaine “problem." And international interdiction efforts in general have never made a permanent or significant dent in worldwide production or use of drugs. The War on Drugs isn’t working, and never has. And there’s no reason it ought to even if it could.
The Drug War tends to be a quiet public policy matter, of interest only to what more sophisticated and jaded policy folk can write off as boring fanatics and aggrieved family members. It is rarely at the top of any politician's concerns—neither major party, after all, can score points against the other on the matter. It remains a quiet and mostly unquestioned fact of reality, even as it is now widely understood and accepted that even the president of the United States sometimes must have to get high. Almost everyone knows that all sorts of normal, effective human beings occasionally choose to violate existing drug laws. (Nearly half of U.S. citizens have tried pot in their life, for example.) Medical marijuana tends to be quite popular when voters get a chance to consider it, and the executive branch is finally ready to let states go their own way on that issue.
Still, no one seriously expects anything significant to change. The international drug war ought to be of enormous meta-interest to students of policy, political science, and philosophy because it reveals better than almost any other issue the essentially unreasonable nature of our rulers—and our populace. There are few other huge policy matters in which the reason for pursuing a goal is more obviously ludicrous, archaic, and disconnected from any reasonable conception of a larger public good (and yet never questioned), and where the effort is more obviously utterly futile and wasted.
And yet the vast majority of documents studying, chronicling, and counting what’s countable about the drug war, even supposedly ameliorist ones that suggest a switch from, say, military means to medical ones in fighting the drug scourge, refuse to question the root of the absurdity. It is generally assumed (without even an attempt at proof) that stopping people from using the drugs they choose to use is as unquestioned a good as increasing human wealth or preserving human life.
In this era of stunning government debt, of the alleged need for domestic stimulus, and with frequent lip-service dedication paid to spending cuts, the U.S. is still planning to spend $1.6 billion in fiscal year 2009 on international drug war efforts (and those figures from the State Department don’t seem to include the full costs of the multi-year $1.4 billion “Merida Initiative” for drug war waging in Mexico). Those efforts include violent interdiction, corrupting the courts and police departments of our allies, and destroying small farmers’ livelihoods (while also throwing in some development aid to allegedly help them). Our 1986 “Anti-Drug Abuse Act” makes everything from trade to aid policy dependent on how well we think our allies are helping us destroy themselves in the name of our drug war. The U.N.’s dispirited drug warrior Costa even talks of how, “We must have the courage to look at the dramatic, unintended consequences of drug control: the emergence of a criminal market of staggering proportions.” But he won’t take that next, short, simple mental step towards abolishing his own job.
One might think that the first place a reasonable politician would look to save a billion or so bucks a year is the category of efforts clearly marked “utterly ridiculous and proven completely futile”—such as the international drug war. But that will almost certainly not happen. If anything should make one hopeless about the future of sensible governance, it's the ongoing, apparently never-ending international war on drugs.
Senior Editor Brian Doherty is author of Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).
Celebrating 100 years of failure and futility
Reason, March 4, 2009
The United Nations is currently celebrating the 100th anniversary of the “international war on drugs.” Yes, it was in 1909 that 13 countries joined together in the “International Opium Commission” to halt the Chinese opium trade. And how did that go? According to the Associated Press, although strongman Mao Zedong managed (or so his government claims) to make significant inroads in the 1950s, nowadays “Government statistics put the number of known addicts in China at 1.2 million, including 700,000 heroin users, more than two-thirds of them under the age of 35.”
Strangely, after a century's worth of attempts to forcefully stamp out two perfectly legitimate and useful human urges—to make a decent living, and to pleasurably alter our consciousness—drug warriors are no closer to victory. The chief of the UN’s Office on Drugs and Crime, Antonio Maria Costa, even confesses to feeling “somewhat frustrated” that his impossible job is so darn impossible.
While international despair over drug war failure raises its—utterly valid and appropriate—head, folks in the United States, which is the undisputed kingpin of this losing war, have begun noticing some of the horrible side-effects of drug war enforcement coming home to roost. In Arizona, legislators are alarmed at the growing importation of Mexican drug gang-style kidnappings (already happening at a rate of around one a day in Phoenix), and fear that military-level street violence will cross the border soon as well.
Showing the ultimate in political frustration, Arizona Attorney General Terry Goddard actually agreed with a CNN reporter that when it comes to marijuana legalization, there’s “a strong argument for getting that debate front and center and finding whatever options we might have to cut off the devastation in Mexico. What we fear here on the Arizona border is the cartel on cartel battle is going to end up spreading across the border.”
Sure, the U.S. has already suffered great fiscal drain and hideous human costs in terms of lives wasted in prison from its drug war, but the chaotic and hideous violence it engenders in Mexico has been mostly a matter for tourists to worry about. A recent study from the Cato Institute noted 131 U.S. citizens killed from 2005-2008, explaining that police in many border states besides Arizona (and border patrol agents) increasingly find themselves up against the violence of the Mexican drug trade.
Nor is it only libertarian think tanks taking notice. In just the past couple of weeks, sources from international news and analysis mavens ranging from Stratfor to Foreign Policy have reported on something that is not news to most Mexicans: The violence associated with the drug war in Mexico, almost all of it attributable to the fact that drugs are illegal, is reaching absurd levels, including endemic kidnappings, beheadings, and the use of military weapons like rocket-propelled grenades in public battles. Nearly 6,300 murders in Mexico can be laid at the feet of the drug trade for 2008; and so far 2009 has already seen over 1,000.
Politicians might not see it, but just about anyone else with a moment’s thought will acknowledge that we don’t usually see that sort of rampant bloody murder associated with the trade in legal items—however good or bad for you they might be.
This past week, however, has shown some signs of drug war sanity from unlikely places. Foremost among them was a report issued by the Latin American Commission on Drugs and Democracy, where three former Latin American leaders, Fernando Henrique Cardoso (former president of Brazil), César Gaviria (former president of Colombia), and Ernesto Zedillo (former president of Mexico), admit, as they wrote in a Wall Street Journal op-ed that ends by considering the decriminalization of pot possession, that:
Prohibitionist policies based on eradication, interdiction and criminalization of consumption simply haven't worked. Violence and the organized crime associated with the narcotics trade remain critical problems in our countries. Latin America remains the world's largest exporter of cocaine and cannabis, and is fast becoming a major supplier of opium and heroin. Today, we are further than ever from the goal of eradicating drugs.
The reactions of U.S. drug policy makers, including former drug czar John Walters and another unnamed official, were more interesting and more depressing. They insisted that spiraling Mexican drug violence is in fact a sign of desperation, and that turf wars indicate that the good guys are actually getting closer to winning.
They aren’t. They really aren’t. Drug control efforts have little effect on the price and availability of cocaine. Afghanistan continues to pump out opium, with any success in some areas overwhelmed by failures in others. Total production went up to a record high in 2007, followed by a very small decline in 2008, which even U.N. drug eradication officials stress can’t be credited to government eradication efforts. The vaunted U.S.-funded “Plan Colombia” has failed to seriously limit coca production while harming small Colombian farmers—and at great expense. West Africa has a growing cocaine “problem." And international interdiction efforts in general have never made a permanent or significant dent in worldwide production or use of drugs. The War on Drugs isn’t working, and never has. And there’s no reason it ought to even if it could.
The Drug War tends to be a quiet public policy matter, of interest only to what more sophisticated and jaded policy folk can write off as boring fanatics and aggrieved family members. It is rarely at the top of any politician's concerns—neither major party, after all, can score points against the other on the matter. It remains a quiet and mostly unquestioned fact of reality, even as it is now widely understood and accepted that even the president of the United States sometimes must have to get high. Almost everyone knows that all sorts of normal, effective human beings occasionally choose to violate existing drug laws. (Nearly half of U.S. citizens have tried pot in their life, for example.) Medical marijuana tends to be quite popular when voters get a chance to consider it, and the executive branch is finally ready to let states go their own way on that issue.
Still, no one seriously expects anything significant to change. The international drug war ought to be of enormous meta-interest to students of policy, political science, and philosophy because it reveals better than almost any other issue the essentially unreasonable nature of our rulers—and our populace. There are few other huge policy matters in which the reason for pursuing a goal is more obviously ludicrous, archaic, and disconnected from any reasonable conception of a larger public good (and yet never questioned), and where the effort is more obviously utterly futile and wasted.
And yet the vast majority of documents studying, chronicling, and counting what’s countable about the drug war, even supposedly ameliorist ones that suggest a switch from, say, military means to medical ones in fighting the drug scourge, refuse to question the root of the absurdity. It is generally assumed (without even an attempt at proof) that stopping people from using the drugs they choose to use is as unquestioned a good as increasing human wealth or preserving human life.
In this era of stunning government debt, of the alleged need for domestic stimulus, and with frequent lip-service dedication paid to spending cuts, the U.S. is still planning to spend $1.6 billion in fiscal year 2009 on international drug war efforts (and those figures from the State Department don’t seem to include the full costs of the multi-year $1.4 billion “Merida Initiative” for drug war waging in Mexico). Those efforts include violent interdiction, corrupting the courts and police departments of our allies, and destroying small farmers’ livelihoods (while also throwing in some development aid to allegedly help them). Our 1986 “Anti-Drug Abuse Act” makes everything from trade to aid policy dependent on how well we think our allies are helping us destroy themselves in the name of our drug war. The U.N.’s dispirited drug warrior Costa even talks of how, “We must have the courage to look at the dramatic, unintended consequences of drug control: the emergence of a criminal market of staggering proportions.” But he won’t take that next, short, simple mental step towards abolishing his own job.
One might think that the first place a reasonable politician would look to save a billion or so bucks a year is the category of efforts clearly marked “utterly ridiculous and proven completely futile”—such as the international drug war. But that will almost certainly not happen. If anything should make one hopeless about the future of sensible governance, it's the ongoing, apparently never-ending international war on drugs.
Senior Editor Brian Doherty is author of Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).
USAID Blindness Program Assists One Million Children
USAID Blindness Program Assists One Million Children
USAID, March 4, 2009
WASHINGTON, D.C. - In the past year, the United States Agency for International Development (USAID) Child Blindness Program assisted over one million people through eye health education, comprehensive vision screening, refractive error correction, sight-restoring surgery, and education for blind children.
USAID has supported programs to reduce childhood blindness since 1991. This year, 31 projects reached over one million people in 23 countries. Together, these projects screened 950,000 children and 61,000 adults-many of whom are teachers in school-based eye health programs. In countries like Niger, India, Nepal and Tanzania, USAID grantees are expanding access to eye care and improving vision for thousands in hard-to-reach communities.
There are 17 million children in the world with low vision or blurred eye sight. Children with inadequate vision often drop out of school when they cannot see the blackboard or letters in a book, and suffer the lifelong consequences of low education. The majority of these children experience refractive errors that can be corrected with glasses. This year, USAID supported programs in 10 countries that have distributed over 11,000 pairs of eyeglasses to children.
USAID Global Health Bureau Deputy Assistant Administrator Gloria Steele highlights the role of USAID's partners: "From supporting global leaders in eye care like Aravind Eye Care System in India to community-based screening programs like that of Seva Foundation in Nepal, USAID and our partners are leading the way in expanding access to social and educational opportunities for children with vision impairments in the developing world."
One of USAID's grantees, VisionSpring, is innovating approaches to delivering eye glasses to people with refractive error. VisionSpring trains vision entrepreneurs to screen adults and children and sell a variety of lost-cost glasses. In addition to providing access to eye care in rural Indian communities, these vision entrepreneurs are earning income and are better able to support their own families. Rama Devi, a vision entrepreneur in Mahbubnagar, used to sell her handiwork for around $44 a month-barely enough to care for her husband and two children. She joined VisionSpring's program in 2006, and now earns over $100 every month selling reading glasses.
Some children require more intensive care, and now have affordable access to hospital services through USAID's Child Blindness Program. With high-quality surgical and post-operative care, USAID grantees restored sight to 921 children in 10 countries this year.
Nine-year-old Ashis Tamang was one of these children. Unable to see out of his right eye due a cataract, he was at high risk for dropping out of school when Seva Foundation, funded by USAID, conducted a screening program at his school in Chitwan, Nepal. Seva immediately referred Ashis to Bharatphur Eye Hospital, where he underwent cataract surgery. After surgery, with perfect vision in his right eye, he told Seva that he stood first in his class, and wants to try to get even better scores.
For the five million children who are blind, mobility and educational training can create a lifetime of opportunities. Kean, who is 6 years old from the Philippines, lost his sight shortly after birth, and was diagnosed with autism when he was 2 after he failed to develop verbal skills. Kean is now receiving therapy services at Resources for the Blind in the Philippines, a Perkins School for the Blind partner supported by USAID since 2006. For the first time in his life, he is able to talk and play with other children. Overjoyed with his progress, Kean's mother has enrolled him in elementary school.
In many countries, blind children are neglected and never receive opportunities to engage in society or education systems. With the help of USAID, grantees like Perkins are putting these systems within reach, so more children like Kean can live full and productive lives.
For more information about USAID and its child survival programs, visit http://www.usaid.gov/our_work/global_health/.
USAID, March 4, 2009
WASHINGTON, D.C. - In the past year, the United States Agency for International Development (USAID) Child Blindness Program assisted over one million people through eye health education, comprehensive vision screening, refractive error correction, sight-restoring surgery, and education for blind children.
USAID has supported programs to reduce childhood blindness since 1991. This year, 31 projects reached over one million people in 23 countries. Together, these projects screened 950,000 children and 61,000 adults-many of whom are teachers in school-based eye health programs. In countries like Niger, India, Nepal and Tanzania, USAID grantees are expanding access to eye care and improving vision for thousands in hard-to-reach communities.
There are 17 million children in the world with low vision or blurred eye sight. Children with inadequate vision often drop out of school when they cannot see the blackboard or letters in a book, and suffer the lifelong consequences of low education. The majority of these children experience refractive errors that can be corrected with glasses. This year, USAID supported programs in 10 countries that have distributed over 11,000 pairs of eyeglasses to children.
USAID Global Health Bureau Deputy Assistant Administrator Gloria Steele highlights the role of USAID's partners: "From supporting global leaders in eye care like Aravind Eye Care System in India to community-based screening programs like that of Seva Foundation in Nepal, USAID and our partners are leading the way in expanding access to social and educational opportunities for children with vision impairments in the developing world."
One of USAID's grantees, VisionSpring, is innovating approaches to delivering eye glasses to people with refractive error. VisionSpring trains vision entrepreneurs to screen adults and children and sell a variety of lost-cost glasses. In addition to providing access to eye care in rural Indian communities, these vision entrepreneurs are earning income and are better able to support their own families. Rama Devi, a vision entrepreneur in Mahbubnagar, used to sell her handiwork for around $44 a month-barely enough to care for her husband and two children. She joined VisionSpring's program in 2006, and now earns over $100 every month selling reading glasses.
Some children require more intensive care, and now have affordable access to hospital services through USAID's Child Blindness Program. With high-quality surgical and post-operative care, USAID grantees restored sight to 921 children in 10 countries this year.
Nine-year-old Ashis Tamang was one of these children. Unable to see out of his right eye due a cataract, he was at high risk for dropping out of school when Seva Foundation, funded by USAID, conducted a screening program at his school in Chitwan, Nepal. Seva immediately referred Ashis to Bharatphur Eye Hospital, where he underwent cataract surgery. After surgery, with perfect vision in his right eye, he told Seva that he stood first in his class, and wants to try to get even better scores.
For the five million children who are blind, mobility and educational training can create a lifetime of opportunities. Kean, who is 6 years old from the Philippines, lost his sight shortly after birth, and was diagnosed with autism when he was 2 after he failed to develop verbal skills. Kean is now receiving therapy services at Resources for the Blind in the Philippines, a Perkins School for the Blind partner supported by USAID since 2006. For the first time in his life, he is able to talk and play with other children. Overjoyed with his progress, Kean's mother has enrolled him in elementary school.
In many countries, blind children are neglected and never receive opportunities to engage in society or education systems. With the help of USAID, grantees like Perkins are putting these systems within reach, so more children like Kean can live full and productive lives.
For more information about USAID and its child survival programs, visit http://www.usaid.gov/our_work/global_health/.
Holder, “Assault Weapons”, Reid & Pelosi
Holder’s “Assault Weapons” Folly, by David Rittgers
Cato at Liberty, Mar 03, 2009
Attorney General Eric Holder recently announced that the Obama administration will seek a new federal “assault weapons” ban. This is an ill-advised policy that defies common sense.
The ban would be a revival of a law passed in the early years of the Clinton administration that expired in 2004. The law prohibited the sale of newly-manufactured magazines holding more than ten rounds of ammunition and having two of five cosmetic features on semi-automatic rifles. If you had a pistol grip and a detachable magazine, you couldn’t have a bayonet lug. More recent proposals have attempted to ban “barrel shrouds,” which the rest of the world calls “handguards” - the place you put your hand (instead of on a hot barrel) to prevent burning it while firing.
The emphasis here is on the cosmetic - any rational discussion of the issue ought to note that an “assault weapon” is any object you use to assault someone with - and banning the presence of a bayonet lug on the barrel of a rifle is senseless. Knives, tire irons, and bricks can all serve as “assault weapons.” This is an instance where quotation marks are not just appropriate, they are required.
Much of the public support for the law was based on a warping of the issue by gun control proponents to make the public believe that these firearms are machine guns. The fully automatic weapons that gun controllers use to push this agenda have been heavily regulated by the federal government since 1934 and not produced for civilian sale since 1986. Don’t take my word for it - here’s Josh Sugarmann of the Violence Policy Center: “The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons-anything that looks like a machine gun is assumed to be a machine gun-can only increase the chance of public support for restrictions on these weapons.”
This intentional distortion has moved from advocacy groups to the attorney general’s office. Attorney General Eric Holder claims that the law is needed to counter Mexican Drug War violence, that American gun laws support “cartels employing automatic weapons and grenades.” Again, these devices are already illegal. It is far more likely that these weapons of war are from Mexican Army troops who deserted their posts for the higher pay that drug kingpins offer. The drug cartels have even taken the brazen step of setting up billboards meant to draw soldiers and police officers from their government jobs and into the drug trade. My colleague Ted Galen Carpenter wrote the book on how to deal with this issue. Holder’s War on Everything is not it.
It defies reason to think that multi-billion dollar criminal syndicates will not be able to get their hands on guns because of an American law banning cosmetic features and dictating lower magazine capacity. If the Mexican government gets better control of its own armaments, the cartels will simply go to the black market and buy the guns. Or make them. Guns are hand-crafted in the frontier provinces of Pakistan, and there is no reason that the cartels could not do the same in a country with far more industrial know-how. Three minutes of internet research will reveal plans to make fully automatic sub-machine guns, so enough capital to set up a machine shop and buy some sheet metal is all it would take.
The expired ban did not demonstrably impact crime anyway. The Centers for Disease Control conducted a study in 2003 that found no reduction of crime attributable to the law. This should come as no surprise, since most criminals’ weapons of choice are cheap, small caliber pistols. They traditionally dominate the ATF’s top crime gun list. There are some bad apples out there selling guns to people they know to be “straw buyers,” people who have clean records and re-sell the guns to those who don’t. Prosecute them. Enforce the existing laws before deciding to restrict the freedom of law-abiding citizens.
Predictably, both Harry Reid and Nancy Pelosi have temporarily quashed the issue. Let’s hope they keep it out of the halls of Congress, and focus instead on a sensible drug policy that impacts the demand created by an illicit drug market.
Pelosi and Reid realize that this proposal will do is come back to haunt Democrats in the 2010 mid-term elections, which historically trend against the president’s party anyway. Many Democrats attributed the flip of the House of Representatives to Republican hands in 1994 to the first “assault weapons” ban. Numerous experts believe that the reason Al Gore could not carry his home state of Tennessee in the 2000 election was his push for broader gun control. Blue Dog Democrats that ran on pro-gun platforms in conservative districts must be rolling their eyes. The rest of the country should do so as well, and send this proposal to the dustbin.
UPDATE: Since I started writing this, the “ban guns for Mexico’s sake” narrative has taken on a drumbeat’s tempo. 60 Minutes did this piece echoing the gun ban crusade, and the Wall Street Journal published this. Expect more of this nonsense.
Cato at Liberty, Mar 03, 2009
Attorney General Eric Holder recently announced that the Obama administration will seek a new federal “assault weapons” ban. This is an ill-advised policy that defies common sense.
The ban would be a revival of a law passed in the early years of the Clinton administration that expired in 2004. The law prohibited the sale of newly-manufactured magazines holding more than ten rounds of ammunition and having two of five cosmetic features on semi-automatic rifles. If you had a pistol grip and a detachable magazine, you couldn’t have a bayonet lug. More recent proposals have attempted to ban “barrel shrouds,” which the rest of the world calls “handguards” - the place you put your hand (instead of on a hot barrel) to prevent burning it while firing.
The emphasis here is on the cosmetic - any rational discussion of the issue ought to note that an “assault weapon” is any object you use to assault someone with - and banning the presence of a bayonet lug on the barrel of a rifle is senseless. Knives, tire irons, and bricks can all serve as “assault weapons.” This is an instance where quotation marks are not just appropriate, they are required.
Much of the public support for the law was based on a warping of the issue by gun control proponents to make the public believe that these firearms are machine guns. The fully automatic weapons that gun controllers use to push this agenda have been heavily regulated by the federal government since 1934 and not produced for civilian sale since 1986. Don’t take my word for it - here’s Josh Sugarmann of the Violence Policy Center: “The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons-anything that looks like a machine gun is assumed to be a machine gun-can only increase the chance of public support for restrictions on these weapons.”
This intentional distortion has moved from advocacy groups to the attorney general’s office. Attorney General Eric Holder claims that the law is needed to counter Mexican Drug War violence, that American gun laws support “cartels employing automatic weapons and grenades.” Again, these devices are already illegal. It is far more likely that these weapons of war are from Mexican Army troops who deserted their posts for the higher pay that drug kingpins offer. The drug cartels have even taken the brazen step of setting up billboards meant to draw soldiers and police officers from their government jobs and into the drug trade. My colleague Ted Galen Carpenter wrote the book on how to deal with this issue. Holder’s War on Everything is not it.
It defies reason to think that multi-billion dollar criminal syndicates will not be able to get their hands on guns because of an American law banning cosmetic features and dictating lower magazine capacity. If the Mexican government gets better control of its own armaments, the cartels will simply go to the black market and buy the guns. Or make them. Guns are hand-crafted in the frontier provinces of Pakistan, and there is no reason that the cartels could not do the same in a country with far more industrial know-how. Three minutes of internet research will reveal plans to make fully automatic sub-machine guns, so enough capital to set up a machine shop and buy some sheet metal is all it would take.
The expired ban did not demonstrably impact crime anyway. The Centers for Disease Control conducted a study in 2003 that found no reduction of crime attributable to the law. This should come as no surprise, since most criminals’ weapons of choice are cheap, small caliber pistols. They traditionally dominate the ATF’s top crime gun list. There are some bad apples out there selling guns to people they know to be “straw buyers,” people who have clean records and re-sell the guns to those who don’t. Prosecute them. Enforce the existing laws before deciding to restrict the freedom of law-abiding citizens.
Predictably, both Harry Reid and Nancy Pelosi have temporarily quashed the issue. Let’s hope they keep it out of the halls of Congress, and focus instead on a sensible drug policy that impacts the demand created by an illicit drug market.
Pelosi and Reid realize that this proposal will do is come back to haunt Democrats in the 2010 mid-term elections, which historically trend against the president’s party anyway. Many Democrats attributed the flip of the House of Representatives to Republican hands in 1994 to the first “assault weapons” ban. Numerous experts believe that the reason Al Gore could not carry his home state of Tennessee in the 2000 election was his push for broader gun control. Blue Dog Democrats that ran on pro-gun platforms in conservative districts must be rolling their eyes. The rest of the country should do so as well, and send this proposal to the dustbin.
UPDATE: Since I started writing this, the “ban guns for Mexico’s sake” narrative has taken on a drumbeat’s tempo. 60 Minutes did this piece echoing the gun ban crusade, and the Wall Street Journal published this. Expect more of this nonsense.
Justice in Iraq: The court that convicted Saddam shows temperance towards his henchman
Justice in Iraq. WSJ Editorial
The court that convicted Saddam shows temperance towards his henchman.
WSJ, Mar 04, 2009
When Saddam Hussein was hanged in December 2006, critics of the Iraq war -- and even a few supporters -- took it as proof of everything wrong with the "new" Iraq: sectarian, vengeful and crude. Never mind that if the death penalty has any application, it is for mass murderers like Saddam.
In fact, Saddam's hanging was, along with the surge that began the following month, a turning point for Iraq: Among other things, it signaled to the Baathist bitter-enders and their Sunni supporters that there would be no going back. But the critics were wrong in another respect too. Witness Monday's acquittal of Tariq Aziz, by the same court that convicted Saddam.
Mr. Aziz became Iraq's foreign minister and deputy prime minister when Saddam seized power in 1979. Unlike such colleagues as "Chemical" Ali Hassan al-Majid, Mr. Aziz did not oversee the regime's various mechanisms of repression. But he was as complicit in their crimes as another notorious foreign minister, Joachim von Ribbentrop, was complicit in Hitler's.
The postwar Nuremberg trials -- well-remembered for their probity and fairness -- sentenced Ribbentrop to death, and he was hanged in 1946. In acquitting Mr. Aziz of charges of involvement in the 1992 summary execution of 40 merchants, the Iraqi tribunal showed a considerably greater degree of mercy. Mr. Aziz remains on the hook, and in prison, for other charges. But in acquitting him now, the court has done something rare in the annals of Arab justice, and demonstrated again that the Iraq the U.S. liberated is worthy of the world's respect and support.
The court that convicted Saddam shows temperance towards his henchman.
WSJ, Mar 04, 2009
When Saddam Hussein was hanged in December 2006, critics of the Iraq war -- and even a few supporters -- took it as proof of everything wrong with the "new" Iraq: sectarian, vengeful and crude. Never mind that if the death penalty has any application, it is for mass murderers like Saddam.
In fact, Saddam's hanging was, along with the surge that began the following month, a turning point for Iraq: Among other things, it signaled to the Baathist bitter-enders and their Sunni supporters that there would be no going back. But the critics were wrong in another respect too. Witness Monday's acquittal of Tariq Aziz, by the same court that convicted Saddam.
Mr. Aziz became Iraq's foreign minister and deputy prime minister when Saddam seized power in 1979. Unlike such colleagues as "Chemical" Ali Hassan al-Majid, Mr. Aziz did not oversee the regime's various mechanisms of repression. But he was as complicit in their crimes as another notorious foreign minister, Joachim von Ribbentrop, was complicit in Hitler's.
The postwar Nuremberg trials -- well-remembered for their probity and fairness -- sentenced Ribbentrop to death, and he was hanged in 1946. In acquitting Mr. Aziz of charges of involvement in the 1992 summary execution of 40 merchants, the Iraqi tribunal showed a considerably greater degree of mercy. Mr. Aziz remains on the hook, and in prison, for other charges. But in acquitting him now, the court has done something rare in the annals of Arab justice, and demonstrated again that the Iraq the U.S. liberated is worthy of the world's respect and support.
Iran threatens two neighbors?
Sideshow or Preview?, by Christian Whiton
Iran threatens two neighbors.
The Weekly Standard, Mar 04, 2009 12:00:00 AM
This year could go down is history as the one in which Iran either got the bomb or got close enough for government work. A report in early February by the International Institute for Strategic Studies concluded that during 2009 Iran will probably reach the point at which it has produced enough low-enriched uranium to make a bomb if it took the simple step of further enrichment. CIA Director Leon Panetta recently said there is "no question" Iran is seeking a nuclear weapons capability. This refuted with finality a laughable 2007 National Intelligence Estimate that concluded the opposite in a chapter of Bush administration history that might be titled "Bureaucrats Gone Wild."
It is hard to overstate the negative consequences of a nuclear Iran. Doomsday scenarios like a nuclear assault on Israel or one of the other countries within range of Iran's delivery systems and terrorist networks come to mind. While this should be of immense concern, there are more probable consequences in store for the medium term that ought not to escape attention. Iranian aggression of a much more conventional nature is likely, and Tehran has been giving a telling preview of this in recent months.
Last week, the former speaker of Iran's parliament, who is close to the supreme leader, opined that Bahrain was once the 14th province of Iran. Connoisseurs of Saddam Hussein's threats will recall his assertion that Kuwait was Iraq's 19th province presaged his invasion of that country in 1990. In the Middle East, such historical claims are often threats--veiled thinly, if at all. Even if an invasion is unlikely given the presence of the U.S. Fifth Fleet in Bahrain, the threat serves to cow would-be allies of the United States and embolden local Islamists and fellow travelers.
The threat to Bahrain comes on the heels of a similar one levied against the United Arab Emirates, another strong U.S. ally and a driver of economic reform in the region. Iran's ongoing occupation of three Emirati islands in the Gulf's strategic Strait of Hormuz makes Tehran's threats seem real enough. On January 26, a member of the Iranian parliament reasserted Iran's claim to these islands, which is dubious for many reasons, including that historically they were used and overseen primarily by Arabs, not Persians. More alarmingly, the parliamentarian went a step further, saying all of the UAE belonged to Iran. The same week, a different parliamentarian warned that for the UAE even to assert its rights to the islands could lead to war. On February 3, an Iranian paper threatened the UAE's leaders with defeat, likening them to Saddam's surrendering troops.
This aggression fits a pattern of what repressive revolutionary countries tend to do, especially when unrest at home creates an impetus for a foreign distraction. Authoritarians have a penchant for inventing foreign enemies as a method of justifying their own rule and excusing their shortcomings. This incentive has grown for the Iranian ruling class as last year's high oil revenues are but a faint memory amid increasing economic malaise that includes inflation and unemployment running at about 25 percent each.
It is true that there are a number of reasons Iran might never actually strike Bahrain or the UAE due to nearby U.S. military assets and the economic drawbacks of disrupting its own trade. It also has other greener pastures in which to employ violence. But these same factors were in play in 1990 when Saddam nonetheless proceeded with an invasion of Kuwait. In addition, Iran is in a more powerful position than Saddam ever was. With a pending nuclear capability, Tehran believes it is on the verge of an insurance policy against any real military reckoning with the free world.
Absent an intervening event, a nuclear Tehran would have an even freer hand to expand its existing terror enterprises. As was the case in Iraq, Iranian made Explosively Formed Penetrators are one of the highest causes of mortality for U.S. troops in Afghanistan. Meanwhile, Tehran's clients have achieved great strides in Lebanon and Gaza in recent years, among other locales. Iran is also in the ideology export business--by violence when necessary. June elections in Iran are unlikely to change this, even if the "moderates" win, judging by their track record. Realistically, all of these activities will accelerate in immediate aftermath of an Iranian nuclear capability.
These activities can of course be countered, as they have in past instances, by an aggressive conventional military presence, a determination to undermine the enemy ideologically, and crack intelligence services that can put the subversives on the defense.
Unfortunately, of these three necessities, the United States possesses only the first at present.
President Obama was dealt a poor hand by his predecessor in the White House. Bush was known to promise concerned visitors that Iran would not be allowed to go nuclear, implying a military strike if other options failed. The basic components of his administration's efforts against Iran were smarter economic sanctions and other measures that may have delayed an Iranian bomb, but will not prevent its occurrence. Without a tough plan to check Iran on all fronts, the Obama administration may find itself dealing with an Iran that is not only nuclear, but on the march throughout the region.
Christian Whiton was a State Department official in the George W. Bush administration.
Iran threatens two neighbors.
The Weekly Standard, Mar 04, 2009 12:00:00 AM
This year could go down is history as the one in which Iran either got the bomb or got close enough for government work. A report in early February by the International Institute for Strategic Studies concluded that during 2009 Iran will probably reach the point at which it has produced enough low-enriched uranium to make a bomb if it took the simple step of further enrichment. CIA Director Leon Panetta recently said there is "no question" Iran is seeking a nuclear weapons capability. This refuted with finality a laughable 2007 National Intelligence Estimate that concluded the opposite in a chapter of Bush administration history that might be titled "Bureaucrats Gone Wild."
It is hard to overstate the negative consequences of a nuclear Iran. Doomsday scenarios like a nuclear assault on Israel or one of the other countries within range of Iran's delivery systems and terrorist networks come to mind. While this should be of immense concern, there are more probable consequences in store for the medium term that ought not to escape attention. Iranian aggression of a much more conventional nature is likely, and Tehran has been giving a telling preview of this in recent months.
Last week, the former speaker of Iran's parliament, who is close to the supreme leader, opined that Bahrain was once the 14th province of Iran. Connoisseurs of Saddam Hussein's threats will recall his assertion that Kuwait was Iraq's 19th province presaged his invasion of that country in 1990. In the Middle East, such historical claims are often threats--veiled thinly, if at all. Even if an invasion is unlikely given the presence of the U.S. Fifth Fleet in Bahrain, the threat serves to cow would-be allies of the United States and embolden local Islamists and fellow travelers.
The threat to Bahrain comes on the heels of a similar one levied against the United Arab Emirates, another strong U.S. ally and a driver of economic reform in the region. Iran's ongoing occupation of three Emirati islands in the Gulf's strategic Strait of Hormuz makes Tehran's threats seem real enough. On January 26, a member of the Iranian parliament reasserted Iran's claim to these islands, which is dubious for many reasons, including that historically they were used and overseen primarily by Arabs, not Persians. More alarmingly, the parliamentarian went a step further, saying all of the UAE belonged to Iran. The same week, a different parliamentarian warned that for the UAE even to assert its rights to the islands could lead to war. On February 3, an Iranian paper threatened the UAE's leaders with defeat, likening them to Saddam's surrendering troops.
This aggression fits a pattern of what repressive revolutionary countries tend to do, especially when unrest at home creates an impetus for a foreign distraction. Authoritarians have a penchant for inventing foreign enemies as a method of justifying their own rule and excusing their shortcomings. This incentive has grown for the Iranian ruling class as last year's high oil revenues are but a faint memory amid increasing economic malaise that includes inflation and unemployment running at about 25 percent each.
It is true that there are a number of reasons Iran might never actually strike Bahrain or the UAE due to nearby U.S. military assets and the economic drawbacks of disrupting its own trade. It also has other greener pastures in which to employ violence. But these same factors were in play in 1990 when Saddam nonetheless proceeded with an invasion of Kuwait. In addition, Iran is in a more powerful position than Saddam ever was. With a pending nuclear capability, Tehran believes it is on the verge of an insurance policy against any real military reckoning with the free world.
Absent an intervening event, a nuclear Tehran would have an even freer hand to expand its existing terror enterprises. As was the case in Iraq, Iranian made Explosively Formed Penetrators are one of the highest causes of mortality for U.S. troops in Afghanistan. Meanwhile, Tehran's clients have achieved great strides in Lebanon and Gaza in recent years, among other locales. Iran is also in the ideology export business--by violence when necessary. June elections in Iran are unlikely to change this, even if the "moderates" win, judging by their track record. Realistically, all of these activities will accelerate in immediate aftermath of an Iranian nuclear capability.
These activities can of course be countered, as they have in past instances, by an aggressive conventional military presence, a determination to undermine the enemy ideologically, and crack intelligence services that can put the subversives on the defense.
Unfortunately, of these three necessities, the United States possesses only the first at present.
President Obama was dealt a poor hand by his predecessor in the White House. Bush was known to promise concerned visitors that Iran would not be allowed to go nuclear, implying a military strike if other options failed. The basic components of his administration's efforts against Iran were smarter economic sanctions and other measures that may have delayed an Iranian bomb, but will not prevent its occurrence. Without a tough plan to check Iran on all fronts, the Obama administration may find itself dealing with an Iran that is not only nuclear, but on the march throughout the region.
Christian Whiton was a State Department official in the George W. Bush administration.
U.S., International Tsunami Efforts Continue in Indian Ocean
U.S., International Tsunami Efforts Continue in Indian Ocean. By Cheryl Pellerin
Despite difficulty of creating early warning centers, progress is being made
america.gov, Feb 27, 2009
Washington — Four years after the deadliest tsunami in recorded history took the lives of 227,898 people and displaced 1.7 million, the coastal nations of the Indian Ocean, with help from the United States and other countries, have created a small margin of safety for themselves against a future onslaught by the sea.
The tragedy mobilized international experts and funding for a years-long effort to bolster and, in some cases, create a regional capacity to monitor lands and waters, analyze seismic and tidal data, warn populations about tsunami-producing earthquakes, and establish standard procedures for quickly moving people out of harm’s way.
Initial efforts targeted the eastern Indian Ocean, where parts of Indonesia, Sri Lanka, Thailand and India bore the brunt of the 2004 earthquake and tsunami.
More recent efforts — by representatives of the International Tsunami Information Center (ITIC), the U.S. National Oceanic and Atmospheric Administration (NOAA), the U.S. Geological Survey (USGS) and the UNESCO Intergovernmental Oceanographic Commission (IOC) — have focused on early warning and preparedness activities in the island nation of Mauritius and the Republic of Mozambique in the western Indian Ocean.
SAVING LIVES
The day after Christmas in 2004, below an underwater canyon called the Sunda Trench that lies offshore of the Indonesia archipelago, one massive tectonic plate explosively displaced another, producing a 9.0-magnitude earthquake and a tsunami that affected 14 countries in South Asia and East Africa.
Lives could have been saved if each nation had had an end-to-end early warning system that included hazard warnings and preparedness, ocean observations, data management, forecasting and warning dissemination.
But on December 26, 2004, such a system existed only in the Pacific Ocean, where most of the world’s tsunamis occur. The Pacific Tsunami Warning Center (PTWC) in Hawaii, part of NOAA’s National Weather Service, was established in 1949 to provide warnings about tsunamis and other hazards.
In 1968 the center became the operational headquarters of the IOC’s Intergovernmental Coordination Group for the Pacific Tsunami Warning System. Today the PTWC is an interim warning center for the Indian Ocean — in cooperation with the Japan Meteorological Agency — until warning systems there are complete.
In 2005, IOC took the lead in coordinating international activities to establish a tsunami warning system in the Indian Ocean. The U.S. Indian Ocean Tsunami Warning System Program supported the IOC through a three-year, $16.6 million, multi-agency effort that has led to significant improvements in early warning capability in the region.
MARGIN OF SAFETY
U.S. contributions to the Indian Ocean’s regional warning system have involved upgrading the seismic network, deploying two deep-ocean tsunami-detection buoys called tsunameters (one each in Thailand and Indonesia), increasing the capacity in five countries to analyze data and issue warnings, and improving local community preparedness.
In the region, David McKinnie, NOAA’s international tsunami coordinator, told America.gov, “We’ve gone from no country with a national warning center to many countries with the ability to issue national warnings.”
The U.S. program also:
• Supplied capacity-building, technical support and training for national warning center operations, emergency communications and rapid alert systems in four countries.
• Installed, deployed or upgraded 18 national tsunami-detection and communication system components and built capacity in earthquake detection, hazard mapping and warning processes.
• Trained 195 government agencies, included 399 communities in national alert systems, and provided community-level preparedness training for more than 20,000 people.
• Upgraded or installed six coastal sea-level observation stations and five seismic stations, and upgraded connections to the global telecommunications system and trained users in Sri Lanka and the Maldives in partnership with the World Meteorological Organization.
“Given the difficulty of establishing a set of regional and national tsunami warning centers to deploy new networks of instruments and take on the challenge of last-mile communications and local preparedness — given the enormity of that challenge, progress has been satisfactory,” McKinney said.
“There’s much more to be done,” he added, “just as there’s much more to be done in the United States.”
MAURITIUS AND MOZAMBIQUE
Countries on the western side of the Indian Ocean were less damaged by the 2004 tsunami but still face risks from earthquakes and tsunamis. In February 2006, for example, a 7.0 magnitude struck 215 kilometers (133 miles) southwest of Beira, Mozambique, killing four people and injuring 27.
To address this need, the U.S. State Department funded an effort in 2007 to upgrade earthquake and tsunami warning systems in Mauritius and Mozambique. Involved in the work were experts from the Hawaii-based ITIC, established in 1965 by the IOC; NOAA’s National Weather Service; IOC and USGS.
“Our effort in Mauritius was to try to identify where they needed the most help,” ITIC Director Laura Kong told America.gov.
In the small island nation, the meteorological service doubles as the tsunami warning center. ITIC provided software and training in earthquake monitoring and seismology. During a visit in April, Paul Whitmore, director of NOAA’s Alaska Tsunami Warning Center, installed EarlyBird, a tsunami monitoring system used at his center.
In the nation of Mozambique — which has a meteorological service, a geological survey, a small seismology network and a water-level agency — Kong and her partners installed two pieces of earthquake-monitoring software and a sea-level-monitoring software called Tide Tool.
“Mozambique is more susceptible to tsunamis, and the good news is they’re building the capacity,” USGS research seismologist Walter Mooney told America.gov. “They’re installing six [seismic] stations and trying to put them on radio transmission so they all get broadcast back to the central office in real time.”
ITIC and NOAA have given both countries a range of printed tsunami-preparedness material that the countries can translate and use for training and to increase community awareness.
More information about the Pacific Tsunami Warning Center is available at the NOAA Web site.
More information about UNESCO/IOC global tsunami warning system coordination is available at the organization’s Web site.
An animation of the 2004 Indian Ocean tsunami is available at the Web site of Japan’s National Institute of Advanced Industrial Science & Technology.
Despite difficulty of creating early warning centers, progress is being made
america.gov, Feb 27, 2009
Washington — Four years after the deadliest tsunami in recorded history took the lives of 227,898 people and displaced 1.7 million, the coastal nations of the Indian Ocean, with help from the United States and other countries, have created a small margin of safety for themselves against a future onslaught by the sea.
The tragedy mobilized international experts and funding for a years-long effort to bolster and, in some cases, create a regional capacity to monitor lands and waters, analyze seismic and tidal data, warn populations about tsunami-producing earthquakes, and establish standard procedures for quickly moving people out of harm’s way.
Initial efforts targeted the eastern Indian Ocean, where parts of Indonesia, Sri Lanka, Thailand and India bore the brunt of the 2004 earthquake and tsunami.
More recent efforts — by representatives of the International Tsunami Information Center (ITIC), the U.S. National Oceanic and Atmospheric Administration (NOAA), the U.S. Geological Survey (USGS) and the UNESCO Intergovernmental Oceanographic Commission (IOC) — have focused on early warning and preparedness activities in the island nation of Mauritius and the Republic of Mozambique in the western Indian Ocean.
SAVING LIVES
The day after Christmas in 2004, below an underwater canyon called the Sunda Trench that lies offshore of the Indonesia archipelago, one massive tectonic plate explosively displaced another, producing a 9.0-magnitude earthquake and a tsunami that affected 14 countries in South Asia and East Africa.
Lives could have been saved if each nation had had an end-to-end early warning system that included hazard warnings and preparedness, ocean observations, data management, forecasting and warning dissemination.
But on December 26, 2004, such a system existed only in the Pacific Ocean, where most of the world’s tsunamis occur. The Pacific Tsunami Warning Center (PTWC) in Hawaii, part of NOAA’s National Weather Service, was established in 1949 to provide warnings about tsunamis and other hazards.
In 1968 the center became the operational headquarters of the IOC’s Intergovernmental Coordination Group for the Pacific Tsunami Warning System. Today the PTWC is an interim warning center for the Indian Ocean — in cooperation with the Japan Meteorological Agency — until warning systems there are complete.
In 2005, IOC took the lead in coordinating international activities to establish a tsunami warning system in the Indian Ocean. The U.S. Indian Ocean Tsunami Warning System Program supported the IOC through a three-year, $16.6 million, multi-agency effort that has led to significant improvements in early warning capability in the region.
MARGIN OF SAFETY
U.S. contributions to the Indian Ocean’s regional warning system have involved upgrading the seismic network, deploying two deep-ocean tsunami-detection buoys called tsunameters (one each in Thailand and Indonesia), increasing the capacity in five countries to analyze data and issue warnings, and improving local community preparedness.
In the region, David McKinnie, NOAA’s international tsunami coordinator, told America.gov, “We’ve gone from no country with a national warning center to many countries with the ability to issue national warnings.”
The U.S. program also:
• Supplied capacity-building, technical support and training for national warning center operations, emergency communications and rapid alert systems in four countries.
• Installed, deployed or upgraded 18 national tsunami-detection and communication system components and built capacity in earthquake detection, hazard mapping and warning processes.
• Trained 195 government agencies, included 399 communities in national alert systems, and provided community-level preparedness training for more than 20,000 people.
• Upgraded or installed six coastal sea-level observation stations and five seismic stations, and upgraded connections to the global telecommunications system and trained users in Sri Lanka and the Maldives in partnership with the World Meteorological Organization.
“Given the difficulty of establishing a set of regional and national tsunami warning centers to deploy new networks of instruments and take on the challenge of last-mile communications and local preparedness — given the enormity of that challenge, progress has been satisfactory,” McKinney said.
“There’s much more to be done,” he added, “just as there’s much more to be done in the United States.”
MAURITIUS AND MOZAMBIQUE
Countries on the western side of the Indian Ocean were less damaged by the 2004 tsunami but still face risks from earthquakes and tsunamis. In February 2006, for example, a 7.0 magnitude struck 215 kilometers (133 miles) southwest of Beira, Mozambique, killing four people and injuring 27.
To address this need, the U.S. State Department funded an effort in 2007 to upgrade earthquake and tsunami warning systems in Mauritius and Mozambique. Involved in the work were experts from the Hawaii-based ITIC, established in 1965 by the IOC; NOAA’s National Weather Service; IOC and USGS.
“Our effort in Mauritius was to try to identify where they needed the most help,” ITIC Director Laura Kong told America.gov.
In the small island nation, the meteorological service doubles as the tsunami warning center. ITIC provided software and training in earthquake monitoring and seismology. During a visit in April, Paul Whitmore, director of NOAA’s Alaska Tsunami Warning Center, installed EarlyBird, a tsunami monitoring system used at his center.
In the nation of Mozambique — which has a meteorological service, a geological survey, a small seismology network and a water-level agency — Kong and her partners installed two pieces of earthquake-monitoring software and a sea-level-monitoring software called Tide Tool.
“Mozambique is more susceptible to tsunamis, and the good news is they’re building the capacity,” USGS research seismologist Walter Mooney told America.gov. “They’re installing six [seismic] stations and trying to put them on radio transmission so they all get broadcast back to the central office in real time.”
ITIC and NOAA have given both countries a range of printed tsunami-preparedness material that the countries can translate and use for training and to increase community awareness.
More information about the Pacific Tsunami Warning Center is available at the NOAA Web site.
More information about UNESCO/IOC global tsunami warning system coordination is available at the organization’s Web site.
An animation of the 2004 Indian Ocean tsunami is available at the Web site of Japan’s National Institute of Advanced Industrial Science & Technology.
WaPo: No deal on Iran and missile defense
No Deal. WaPo Editorial
Barack Obama and Dmitry Medvedev offer welcome clarity on Iran and missile defense.
TWP, Wednesday, March 4, 2009; A14
PROPONENTS of a diplomatic "grand bargain" between the Obama administration and Russia -- by which the United States would obtain Russian cooperation in stopping Iran's nuclear program in exchange for concessions to what Moscow sees as its security interests in Europe -- got a double drenching of cold water yesterday. Russian President Dmitry Medvedev told a news conference that "any swaps" between action on Iran and a planned U.S. missile defense system in Poland and the Czech Republic "would not be productive." For his part, President Obama made clear that his administration's decisions on missile defense would be guided not by Russian behavior but by the threat from Iran.
As Secretary of State Hillary Rodham Clinton prepares for her first official meeting with Russian Foreign Minister Sergei Lavrov on Saturday, these were revealing and important clarifications. Vice President Biden's call for a "reset" in U.S.-Russian relations and long-standing questions about the efficacy and cost of missile defense may have encouraged Russian expectations that the new administration could be bluffed into retreating from the deals struck by the Bush administration with Poland and the Czech Republic to deploy missile interceptors and a radar station. If undertaken as a concession to Russia, any such move would have the effect of undermining the bonds between former Soviet bloc members and the United States and NATO -- which, of course, is Moscow's aim.
That's why it was important for Mr. Obama to say yesterday that his willingness to reconsider missile defense would be based on judgments about Iran, not about Russia -- and that any decision made in that context does not diminish "my commitment to making sure that Poland, the Czech Republic and other NATO members are fully enjoying the partnership, the alliance and U.S. support with respect to their security." One way to back up that principle is for the administration to make clear in public -- as it has in private -- that deployment of a U.S. Patriot missile defense battery to Poland, promised by the Bush administration, will go ahead regardless of what is ultimately decided about the larger missile defense system.
Such a statement might be somewhat out of sync with the honeymoonish tone of much of the public rhetoric between Moscow and Washington since Mr. Obama's inauguration. But as Mr. Medvedev made clear yesterday, so far there isn't much substance behind the cheery facade. He declared that Russia, which is about to complete a nuclear power plant for Iran and has repeatedly opposed tough sanctions, is "already working in close contact" with the United States on Iran. In other words, while Russia expects the new administration to "show common sense" on missile defense by proposing something that "would be acceptable to us," it shouldn't expect more help stopping an Iranian bomb. Perhaps the Kremlin leadership believes that "reset" is another way of saying "capitulate." If so, Ms. Clinton would do well to clarify the administration's policy when she meets Mr. Lavrov.
Barack Obama and Dmitry Medvedev offer welcome clarity on Iran and missile defense.
TWP, Wednesday, March 4, 2009; A14
PROPONENTS of a diplomatic "grand bargain" between the Obama administration and Russia -- by which the United States would obtain Russian cooperation in stopping Iran's nuclear program in exchange for concessions to what Moscow sees as its security interests in Europe -- got a double drenching of cold water yesterday. Russian President Dmitry Medvedev told a news conference that "any swaps" between action on Iran and a planned U.S. missile defense system in Poland and the Czech Republic "would not be productive." For his part, President Obama made clear that his administration's decisions on missile defense would be guided not by Russian behavior but by the threat from Iran.
As Secretary of State Hillary Rodham Clinton prepares for her first official meeting with Russian Foreign Minister Sergei Lavrov on Saturday, these were revealing and important clarifications. Vice President Biden's call for a "reset" in U.S.-Russian relations and long-standing questions about the efficacy and cost of missile defense may have encouraged Russian expectations that the new administration could be bluffed into retreating from the deals struck by the Bush administration with Poland and the Czech Republic to deploy missile interceptors and a radar station. If undertaken as a concession to Russia, any such move would have the effect of undermining the bonds between former Soviet bloc members and the United States and NATO -- which, of course, is Moscow's aim.
That's why it was important for Mr. Obama to say yesterday that his willingness to reconsider missile defense would be based on judgments about Iran, not about Russia -- and that any decision made in that context does not diminish "my commitment to making sure that Poland, the Czech Republic and other NATO members are fully enjoying the partnership, the alliance and U.S. support with respect to their security." One way to back up that principle is for the administration to make clear in public -- as it has in private -- that deployment of a U.S. Patriot missile defense battery to Poland, promised by the Bush administration, will go ahead regardless of what is ultimately decided about the larger missile defense system.
Such a statement might be somewhat out of sync with the honeymoonish tone of much of the public rhetoric between Moscow and Washington since Mr. Obama's inauguration. But as Mr. Medvedev made clear yesterday, so far there isn't much substance behind the cheery facade. He declared that Russia, which is about to complete a nuclear power plant for Iran and has repeatedly opposed tough sanctions, is "already working in close contact" with the United States on Iran. In other words, while Russia expects the new administration to "show common sense" on missile defense by proposing something that "would be acceptable to us," it shouldn't expect more help stopping an Iranian bomb. Perhaps the Kremlin leadership believes that "reset" is another way of saying "capitulate." If so, Ms. Clinton would do well to clarify the administration's policy when she meets Mr. Lavrov.
United States and United Nations Sanctions on Top Leaders of the Democratic Forces for the Liberation of Rwanda
United States and United Nations Sanctions on Top Leaders of the Democratic Forces for the Liberation of Rwanda, by Gordon Duguid, Acting Deputy Department Spokesman, Office of the Spokesman, US State Dept
Washington, DC, March 3, 2009
Today, March 3, the UN Security Council Sanctions Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo (DRC) designated four leaders of the Democratic Forces for the Liberation of Rwanda (FDLR). Those designated by the Committee are subject to an asset freeze and travel ban. The individuals designated include: Callixte Mbarushimana, Stansislas Nzeyimana, Pacifique Ntawunguka, and Leopold Mujyambere.
The United States also domestically designated these individuals pursuant to Executive Order 13413, which targets certain persons contributing to conflict in the DRC. As a result, these men’s assets under U.S. jurisdiction are frozen and U.S. persons are prohibited from engaging in any transactions with them.
The FDLR (an armed group of ex-Rwandese Armed Forces, Interahamwe, and other Hutu extremists including those responsible for the 1994 Rwandan genocide) has continued to commit war crimes and crimes against humanity in the DRC, significantly contributing to the instability and insecurity of the Great Lakes region. We support the governments of the DRC and Rwanda in their efforts to end the FDLR threat; we urge the FDLR to respect humanitarian law, protect civilians and undergo peaceful disarmament and demobilization; and we encourage rank-and-file FDLR members to voluntarily disarm and repatriate to Rwanda.
We encourage all UN Member States to continue to identify and bring to the attention of the DRC Sanctions Committee individuals and entities who meet the designation criteria in paragraph 4 of UN Security Council resolution 1857 (2008).
PRN: 2009/185
Washington, DC, March 3, 2009
Today, March 3, the UN Security Council Sanctions Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo (DRC) designated four leaders of the Democratic Forces for the Liberation of Rwanda (FDLR). Those designated by the Committee are subject to an asset freeze and travel ban. The individuals designated include: Callixte Mbarushimana, Stansislas Nzeyimana, Pacifique Ntawunguka, and Leopold Mujyambere.
The United States also domestically designated these individuals pursuant to Executive Order 13413, which targets certain persons contributing to conflict in the DRC. As a result, these men’s assets under U.S. jurisdiction are frozen and U.S. persons are prohibited from engaging in any transactions with them.
The FDLR (an armed group of ex-Rwandese Armed Forces, Interahamwe, and other Hutu extremists including those responsible for the 1994 Rwandan genocide) has continued to commit war crimes and crimes against humanity in the DRC, significantly contributing to the instability and insecurity of the Great Lakes region. We support the governments of the DRC and Rwanda in their efforts to end the FDLR threat; we urge the FDLR to respect humanitarian law, protect civilians and undergo peaceful disarmament and demobilization; and we encourage rank-and-file FDLR members to voluntarily disarm and repatriate to Rwanda.
We encourage all UN Member States to continue to identify and bring to the attention of the DRC Sanctions Committee individuals and entities who meet the designation criteria in paragraph 4 of UN Security Council resolution 1857 (2008).
PRN: 2009/185
Thinking About the Unthinkable: Priorities for the upcoming Nuclear Posture Review
Thinking About the Unthinkable, by Thomas M. Skypek
Priorities for the upcoming Nuclear Posture Review.
The Weekly Standard, Mar 03, 2009 12:00:00 AM
Almost fifty years ago, the legendary defense strategist Herman Kahn published his classic work on nuclear strategy, On Thermonuclear War (1960), followed just two years later by a popularized rendering entitled Thinking About the Unthinkable (1962). An iconoclast and one of America's unsung Cold War heroes, Kahn argued throughout his career that it was the responsibility of the United States government to think creatively, honestly, and unemotionally about the prospects of nuclear war. Today, the need for an honest and open debate on the role of nuclear weapons continues, and the upcoming Nuclear Posture Review (NPR) presents an ideal forum. While competing priorities such as the campaigns in Iraq and Afghanistan and a deteriorating economy at home have decreased the attention paid to the issue of nuclear strategy, its importance remains undiminished.
Since the end of the Cold War, the Defense Department has conducted two comprehensive reviews of U.S. nuclear strategy. The first NPR was conducted in 1994 during the Clinton administration and was plagued by infighting between the Pentagon's civilian and military leadership. The 1994 review failed to result in any major policy shift, leaving Washington's Cold War nuclear posture largely intact. The second comprehensive review was conducted by the Bush administration throughout 2001 and was submitted to Congress in December of that year. It marked the first real departure from Cold War thinking on nuclear strategy. The 2001 NPR called for significant reductions in the number of deployed warheads as well as a modernized force structure. The Cold War
Triad, which consisted solely of offensive strike systems including bombers, intercontinental ballistic missiles, (ICBMs) and submarine-launched ballistic missiles (SLBMs), was supplanted by a New Triad. The New Triad folded the offensive strike systems into one leg and incorporated advanced conventional munitions; passive and active defenses formed the second leg of the New Triad while a responsive defense infrastructure formed the final leg. This new construct codified the value of strategic defenses and the importance of human capital management.
The 2009 NPR will be the first major opportunity for the Obama administration to articulate a new vision for U.S. nuclear strategy. The congressionally-mandated review will be conducted by Secretary of Defense Robert Gates, in consultation with Secretary of Energy Steven Chu and Secretary of State Hillary Clinton. It will be submitted concurrently with the Quadrennial Defense Review--the Defense Department's forward-looking appraisal of strategy, programs, and resources--in December 2009. The NPR will examine a variety of issues ranging from arms control and nonproliferation to missile defense and the issue of nuclear modernization. It will address broad policy questions on the overall role of nuclear weapons in U.S. national security strategy and the force structure required to maintain a credible deterrent in the twenty-first century. Issues related to stockpile security, targeting doctrine, and weapons employment will also be addressed.
Attempts to influence the upcoming NPR have begun in earnest. In November 2008, the Center for American Progress (CAP), a left-of-center think tank, released a study entitled "Orienting the 2009 Nuclear Posture Review: A Roadmap." The study's authors, Andrew Grotto and Joseph Cirincione, outline a series of priorities for the upcoming review. The fundamental premise of the study is that current U.S. nuclear posture hampers nuclear nonproliferation efforts. This premise is based on the faulty assumption that U.S. nuclear posture is the primary driver of nuclear proliferation. The reality is that states acquire nuclear weapons for a variety of reasons including the significant political benefits derived from possessing a credible deterrent.
It remains fashionable in liberal foreign policy circles to argue that Washington's behavior is the main catalyst for the decision of other states to acquire nuclear weapons. Of course, Washington's behavior influences other states--but only to a degree. Washington's decision to reduce the number of its operationally deployed warheads from around 6,000 to approximately 2,000 has done nothing to dissuade Pyongyang or Tehran from operating aggressive nuclear weapons programs. At the heart of this discussion is the Nuclear Nonproliferation Treaty (NPT) of 1968 designed to limit the spread of nuclear weapons. Routinely, these critics incorrectly cite Article VI of the NPT, which contains vague language about disarmament, as the linchpin of the treaty. Former Under Secretary of Defense for Policy Douglas J. Feith, now a Senior Fellow at the Hudson Institute, outlined in a recent interview that he believes this is "an inaccurate rendering of the history and meaning of the NPT." The crowning achievement of the NPT, Feith insists, was the agreement of non-nuclear states to forgo nuclearization. By overemphasizing the language in Article VI, these critics are "rewriting the history of the NPT," he argues. Even Grotto and Cirincione acknowledge this point in their report, admitting that "concerns about U.S. compli ance with NPT Article VI are unlikely to exert a direct influence on rogue states' nuclear ambitions".
While the CAP study provides some thoughtful recommendations, it neglects the issue of modernization and the impact our aging stockpile will have on U.S. national security. Each of the systems that currently comprise Washington's nuclear strike portfolio was first deployed last century, most of them during the Cold War. The Minuteman III ICBM was first deployed in 1970; the Trident II D-5 SLBM in 1990; the B-52H bomber in 1961; the B-2 in 1997 and the Ohio Class SSBN in 1981. The United States has not produced a new nuclear weapon in almost two decades when production of the W-88 warhead was ceased in 1989.
Bradley A. Thayer and I detailed the consequences of this trend in the September/October 2008 issue of The National Interest:
Over the next ten to twenty years, the erosion of American nuclear superiority will have major ramifications for the global balance of power. It will place new constraints on our freedom of action and lead our friends and foes alike to doubt the credibility of all instruments of U.S. power. As a result, decades-old alliance structures may fracture amid a drift toward multipolarity. Leadership from Tokyo to Riyadh to Seoul may find new incentives to develop their own deterrents as the relative power of states like Russia and China increases.
Our aging nuclear weapons complex not only diminishes the credibility of our nuclear deterrent but invites proliferation by friendly states and rogue regimes. Modernizing our forces--while maintaining the moral high ground on nonproliferation--should be the cornerstone of the next NPR.
It is important to note that John Podesta, former White House Chief of Staff under President Bill Clinton and the president of CAP, served as President Obama's transition director. According to Politico's Ben Smith and Chris Frates, "The transition's operations director, general counsel, and co-director all shifted from similar jobs at CAP, and the transition is full of lower-level former CAP staffers or current board members." A number of former CAP staffers have already joined the Obama administration in senior policy-making roles, including Melody Barnes, appointed Director for Domestic Policy. Several other CAP staffers have since joined the administration and more appointments from CAP are likely. "It is difficult to overstate the influence in Obamaland of CAP," wrote Michael Scherer of Time after the November election.
While the Obama administration has filled several of the top appointed positions in the Pentagon, many important senior and mid-level positions remain vacant but will be filled in the coming months. The composition of the transition staff, along with confirmed and nominated appointees, remains a likely indicator of what the Obama administration's ideology and basic worldview will be once it is fully staffed. In fact, the Center's NPR report will almost certainly be viewed by some inside the new administration as a blueprint for the 2009 NPR, including two of President Obama's senior Defense Department appointees--Michèle Flournoy and Ashton Carter.
Flournoy and Carter, both veterans of the Clinton administration, have a long history of advocating deep reductions in the nuclear stockpile while habitually neglecting the critical issue of modernization. In their writings and speeches, each has failed to acknowledge the strategic consequences a weakened nuclear deterrent will have for U.S. national security over the long-term--let alone to offer a modernization policy. Flourony, recently confirmed as Under Secretary of Defense for Policy, will oversee the 2009 NPR. In response to advance questions submitted to the Senate Armed Services Committee prior to her confirmation, Flournoy offered only dispassionate, stock answers to key questions regarding U.S. nuclear weapons policy.
Carter, recently nominated to be the Under Secretary of Defense for Acquisition, Technology and Logistics, will also have a major role in shaping the NPR. He served as the co-chair of the contentious 1994 NPR, routinely clashing with his military counterparts who did not share his views on the future of nuclear weapons. The Pentagon's senior leadership cannot neglect the strategic implications of the erosion of the U.S. nuclear weapons complex. While Secretary Gates is a supporter of modernizing U.S. strategic forces, it is clear that some members of the new administration are not.
Going forward, the aim of policymakers should be the simultaneous reduction and modernization of the nuclear stockpile, to include associated delivery systems. Older systems and warheads should be retired and replaced by newer, modernized systems. The United States should continue to reduce the number of its nuclear warheads, in accordance with the Strategic Offensive Reductions Treaty (SORT) of 2002. Under SORT, both Washington and Moscow agreed to reduce the numbers of operationally deployed strategic warheads in their arsenals to 1,700 to 2,000 by December 31, 2012. The United States can reduce the numbers of its warheads and delivery systems while simultaneously modernizing its forces. These efforts are not mutually exclusive, as some claim.
There are a number of specific actions and issues the 2009 NPR should consider:
Conduct a Net Assessment of the Strategic Nuclear Balance. U.S. nuclear strategy should not be crafted in a vacuum. The CAP study failed to acknowledge the fact that Washington's nuclear competitors--namely Moscow and Beijing--are modernizing their strategic nuclear forces. The NPR should be accompanied by a comprehensive net assessment of the global strategic balance. Understanding Washington's position in the international system relative to other nuclear states will provide much-needed context for thinking about threats, capabilities requirements, and the future nuclear force structure. The NPR should look seriously at the possibility of amending the current force structure to include significant reductions in the bomber fleet. An increased emphasis on SLBMs should also be examined.
Launch A New Manhattan Project. The United States should consider launching a new Manhattan Project to develop the next generation of nuclear warheads and ballistic missiles. This will not only combat the "brain drain" problem the U.S. is now experiencing but also modernize its aging fleet. The scientists and engineers, many of them Baby Boomers, who built these weapons during the Cold War, are retiring and the transfer of knowledge to younger generations simply is not happening. The challenge of preserving human capital is a "significant problem," according to Feith. Because the Department is "relying less and less on tests, highly experienced people" are needed to verify the safety and reliability of the stockpile through technical extrapolations. However, the knowledge required to conduct nuclear tests is also eroding and must be preserved should need for a resumption of nuclear testing arise.
Articulate a Clear Targeting Policy. The review should also communicate in no uncertain terms that the U.S. reserves the right to respond to nuclear, biological and chemical attacks on the U.S. homeland and its interests with nuclear weapons. This will serve to strengthen U.S. credibility and make clear to all members of the international community that the U.S. will not retreat from its commitments and that those who choose to cross pre-stated redlines do so at their own peril. A credible deterrent rests on modernized forces and a clear doctrine for the employment of those forces.
Deterring Non-State Actors. Research funds should be allocated to investigate new concepts related to the deterrence of non-state actors such as al Qaeda. The expertise of social scientists should be leveraged in support of this effort in a manner similar to the Pentagon's Human Terrain Team program, which assigns social scientists to forward-deployed military units. These social scientists rely on "cultural intelligence" to support counterinsurgency operations in the field. This type of "cultural intelligence" could help build tailored deterrence strategies for non-state actors.
Strategic Defenses. A robust Ballistic Missile Defense (BMD) system not only strengthens deterrence but also enables Washington to hedge against the possibility of a deterrence failure from rogue states like Iran. Washington should proceed with its plans to place interceptors and their associated radar components in Eastern Europe. The 2009 NPR should analyze the individual systems that comprise the BMD architecture in order to ensure that each component is achieving its milestones on time and within budget.
Organizational Changes in the Defense Department. In order to manage more effectively the Department's nuclear mission the Office of the Under Secretary of Defense for Policy should be reorganized. Currently, responsibility for nuclear policy is spread throughout the Department. An assistant secretary of defense (ASD) position should be established to oversee all aspects of nuclear weapons policy for the Defense Department. The new ASD for Nuclear Weapons Policy should absorb the nuclear counterproliferation and threat reduction missions from the ASD for Global Security Affairs. Subordinate deputy assistant secretary positions should be created for Nuclear Deterrence Operations, Nuclear Threat Reduction and Stockpile and Delivery System Management. Additionally, Congress should amend the statutory membership of the Nuclear Weapons Council to include the deputy secretary of defense. The Nuclear Weapons Council is the joint Defense Department/Energy Department organization responsible for management of the nuclear stockpile.
Develop a Roll Out Strategy. The CAP study rightly noted the need for an effective strategy to communicate the findings of the NPR. False perceptions and an incomplete communications strategy plagued the 2001 NPR, which was widely misinterpreted both domestically and internationally. The Obama administration should go beyond the requisite public briefing and congressional testimony typically used to communicate the results of the NPR. It should engage in a continuous and open dialogue with allies and should also participate in round table policy discussions and lectures at think tanks throughout the country.
Lobby Members of Congress. In the final analysis, nuclear modernization cannot occur without the support of Congress. In recent years, Congress has simply refused to fund the Bush administration's nuclear modernization initiatives including the Reliable Replacement Warhead (RRW) program, the replacement for the W-76 warhead, and the Robust Nuclear Earth Penetrator, or "bunker buster." In September 2008, defense appropriators in the House and Senate refused once again to fund RRW. Opposition on Capitol Hill has been largely bipartisan. There are, however, a number of powerful advocates on Capitol Hill, who truly grasp the need for modernization. Senators Jon Kyl (R-Ariz.) and Jeff Sessions (R-Ala.) and Representative Terry Everett (R-Ala.) are three of the strongest advocates, who have consistently voted to fund important modernization efforts such as RRW. In a September 2008 speech at the George C. Marshall Annual Awards Dinner, Senator Kyl lamented the state of the U.S. nuclear weapons complex calling nuclear deterrence "an issue which has too long been ignored, primarily by the U.S. Congress." As Secretary Gates noted in the January/February 2009 issue of Foreign Affairs, "the Department of Defense and the air force have taken firm steps to return excellence and accountability to nuclear stewardship." He urged lawmakers on Capitol Hill fulfill their obligation: "Congress needs to do its part by funding the Reliable Replacement Warhead Program--for safety, for security, and for a more reliable deterrent."
As Walter B. Slocombe observed in 1981, "The fundamental--and unchanged--strategic objective of the United States is to deter aggression that could lead to nuclear war." Nearly thirty years later that objective remains unchanged. It remains the solemn duty of the U.S. government to think about all possible contingencies to ensure this nation is as prepared as it can be--to think the unthinkable. On December 2, 2008, the bi-partisan Commission on the Prevention of WMD Proliferation and Terrorism released its report declaring, "The Commission believes that unless the world community acts decisively and with great urgency, it is more likely than not that a weapon of mass destruction will be used in a terrorist attack somewhere in the world by the end of 2013." Another bi-partisan commission, the Commission on the Strategic Posture of the United States, which has been tasked to review all aspects of Washington's nuclear posture, will deliver its findings on April 1, 2009. Congress needs to do more than create bipartisan commissions to examine problems we know exist; it needs to appropriate the funds required to modernize our aging nuclear weapons complex.
On September 10, 2001, the notion that nineteen men with box cutters would hijack four commercial airliners and take nearly three thousand innocent lives in New York, Pennsylvania and Virginia would have been unthinkable--but it shouldn't have been. The idea of using commercial airliners as guided missiles was not new. In fact, author Tom Clancy wrote about it in his novel Executive Orders in 1994 and the 1995 Bojinka Plot included a similar attack on CIA Headquarters. The events of September 11, 2001 illustrated the consequences of the sterilized thinking of stove-piped bureaucracies and the costs of failing to consider the unthinkable.
Despite all our hopes, nuclear weapons will continue to exist. As Senator Kyl noted in his September 2008 speech, "The bottom line is that the nuclear genie is out of the bottle and nobody is ever going to stuff it back in, in spite of their good intentions or the audacity of hope or any other kind of slogan." It is a reality that all members of Congress--and the Obama administration--must accept if our deterrent is to be preserved and the unthinkable never allowed to happen.
Thomas M. Skypek is a Washington-based defense analyst. The views expressed herein are solely those of the author.
Priorities for the upcoming Nuclear Posture Review.
The Weekly Standard, Mar 03, 2009 12:00:00 AM
Almost fifty years ago, the legendary defense strategist Herman Kahn published his classic work on nuclear strategy, On Thermonuclear War (1960), followed just two years later by a popularized rendering entitled Thinking About the Unthinkable (1962). An iconoclast and one of America's unsung Cold War heroes, Kahn argued throughout his career that it was the responsibility of the United States government to think creatively, honestly, and unemotionally about the prospects of nuclear war. Today, the need for an honest and open debate on the role of nuclear weapons continues, and the upcoming Nuclear Posture Review (NPR) presents an ideal forum. While competing priorities such as the campaigns in Iraq and Afghanistan and a deteriorating economy at home have decreased the attention paid to the issue of nuclear strategy, its importance remains undiminished.
Since the end of the Cold War, the Defense Department has conducted two comprehensive reviews of U.S. nuclear strategy. The first NPR was conducted in 1994 during the Clinton administration and was plagued by infighting between the Pentagon's civilian and military leadership. The 1994 review failed to result in any major policy shift, leaving Washington's Cold War nuclear posture largely intact. The second comprehensive review was conducted by the Bush administration throughout 2001 and was submitted to Congress in December of that year. It marked the first real departure from Cold War thinking on nuclear strategy. The 2001 NPR called for significant reductions in the number of deployed warheads as well as a modernized force structure. The Cold War
Triad, which consisted solely of offensive strike systems including bombers, intercontinental ballistic missiles, (ICBMs) and submarine-launched ballistic missiles (SLBMs), was supplanted by a New Triad. The New Triad folded the offensive strike systems into one leg and incorporated advanced conventional munitions; passive and active defenses formed the second leg of the New Triad while a responsive defense infrastructure formed the final leg. This new construct codified the value of strategic defenses and the importance of human capital management.
The 2009 NPR will be the first major opportunity for the Obama administration to articulate a new vision for U.S. nuclear strategy. The congressionally-mandated review will be conducted by Secretary of Defense Robert Gates, in consultation with Secretary of Energy Steven Chu and Secretary of State Hillary Clinton. It will be submitted concurrently with the Quadrennial Defense Review--the Defense Department's forward-looking appraisal of strategy, programs, and resources--in December 2009. The NPR will examine a variety of issues ranging from arms control and nonproliferation to missile defense and the issue of nuclear modernization. It will address broad policy questions on the overall role of nuclear weapons in U.S. national security strategy and the force structure required to maintain a credible deterrent in the twenty-first century. Issues related to stockpile security, targeting doctrine, and weapons employment will also be addressed.
Attempts to influence the upcoming NPR have begun in earnest. In November 2008, the Center for American Progress (CAP), a left-of-center think tank, released a study entitled "Orienting the 2009 Nuclear Posture Review: A Roadmap." The study's authors, Andrew Grotto and Joseph Cirincione, outline a series of priorities for the upcoming review. The fundamental premise of the study is that current U.S. nuclear posture hampers nuclear nonproliferation efforts. This premise is based on the faulty assumption that U.S. nuclear posture is the primary driver of nuclear proliferation. The reality is that states acquire nuclear weapons for a variety of reasons including the significant political benefits derived from possessing a credible deterrent.
It remains fashionable in liberal foreign policy circles to argue that Washington's behavior is the main catalyst for the decision of other states to acquire nuclear weapons. Of course, Washington's behavior influences other states--but only to a degree. Washington's decision to reduce the number of its operationally deployed warheads from around 6,000 to approximately 2,000 has done nothing to dissuade Pyongyang or Tehran from operating aggressive nuclear weapons programs. At the heart of this discussion is the Nuclear Nonproliferation Treaty (NPT) of 1968 designed to limit the spread of nuclear weapons. Routinely, these critics incorrectly cite Article VI of the NPT, which contains vague language about disarmament, as the linchpin of the treaty. Former Under Secretary of Defense for Policy Douglas J. Feith, now a Senior Fellow at the Hudson Institute, outlined in a recent interview that he believes this is "an inaccurate rendering of the history and meaning of the NPT." The crowning achievement of the NPT, Feith insists, was the agreement of non-nuclear states to forgo nuclearization. By overemphasizing the language in Article VI, these critics are "rewriting the history of the NPT," he argues. Even Grotto and Cirincione acknowledge this point in their report, admitting that "concerns about U.S. compli ance with NPT Article VI are unlikely to exert a direct influence on rogue states' nuclear ambitions".
While the CAP study provides some thoughtful recommendations, it neglects the issue of modernization and the impact our aging stockpile will have on U.S. national security. Each of the systems that currently comprise Washington's nuclear strike portfolio was first deployed last century, most of them during the Cold War. The Minuteman III ICBM was first deployed in 1970; the Trident II D-5 SLBM in 1990; the B-52H bomber in 1961; the B-2 in 1997 and the Ohio Class SSBN in 1981. The United States has not produced a new nuclear weapon in almost two decades when production of the W-88 warhead was ceased in 1989.
Bradley A. Thayer and I detailed the consequences of this trend in the September/October 2008 issue of The National Interest:
Over the next ten to twenty years, the erosion of American nuclear superiority will have major ramifications for the global balance of power. It will place new constraints on our freedom of action and lead our friends and foes alike to doubt the credibility of all instruments of U.S. power. As a result, decades-old alliance structures may fracture amid a drift toward multipolarity. Leadership from Tokyo to Riyadh to Seoul may find new incentives to develop their own deterrents as the relative power of states like Russia and China increases.
Our aging nuclear weapons complex not only diminishes the credibility of our nuclear deterrent but invites proliferation by friendly states and rogue regimes. Modernizing our forces--while maintaining the moral high ground on nonproliferation--should be the cornerstone of the next NPR.
It is important to note that John Podesta, former White House Chief of Staff under President Bill Clinton and the president of CAP, served as President Obama's transition director. According to Politico's Ben Smith and Chris Frates, "The transition's operations director, general counsel, and co-director all shifted from similar jobs at CAP, and the transition is full of lower-level former CAP staffers or current board members." A number of former CAP staffers have already joined the Obama administration in senior policy-making roles, including Melody Barnes, appointed Director for Domestic Policy. Several other CAP staffers have since joined the administration and more appointments from CAP are likely. "It is difficult to overstate the influence in Obamaland of CAP," wrote Michael Scherer of Time after the November election.
While the Obama administration has filled several of the top appointed positions in the Pentagon, many important senior and mid-level positions remain vacant but will be filled in the coming months. The composition of the transition staff, along with confirmed and nominated appointees, remains a likely indicator of what the Obama administration's ideology and basic worldview will be once it is fully staffed. In fact, the Center's NPR report will almost certainly be viewed by some inside the new administration as a blueprint for the 2009 NPR, including two of President Obama's senior Defense Department appointees--Michèle Flournoy and Ashton Carter.
Flournoy and Carter, both veterans of the Clinton administration, have a long history of advocating deep reductions in the nuclear stockpile while habitually neglecting the critical issue of modernization. In their writings and speeches, each has failed to acknowledge the strategic consequences a weakened nuclear deterrent will have for U.S. national security over the long-term--let alone to offer a modernization policy. Flourony, recently confirmed as Under Secretary of Defense for Policy, will oversee the 2009 NPR. In response to advance questions submitted to the Senate Armed Services Committee prior to her confirmation, Flournoy offered only dispassionate, stock answers to key questions regarding U.S. nuclear weapons policy.
Carter, recently nominated to be the Under Secretary of Defense for Acquisition, Technology and Logistics, will also have a major role in shaping the NPR. He served as the co-chair of the contentious 1994 NPR, routinely clashing with his military counterparts who did not share his views on the future of nuclear weapons. The Pentagon's senior leadership cannot neglect the strategic implications of the erosion of the U.S. nuclear weapons complex. While Secretary Gates is a supporter of modernizing U.S. strategic forces, it is clear that some members of the new administration are not.
Going forward, the aim of policymakers should be the simultaneous reduction and modernization of the nuclear stockpile, to include associated delivery systems. Older systems and warheads should be retired and replaced by newer, modernized systems. The United States should continue to reduce the number of its nuclear warheads, in accordance with the Strategic Offensive Reductions Treaty (SORT) of 2002. Under SORT, both Washington and Moscow agreed to reduce the numbers of operationally deployed strategic warheads in their arsenals to 1,700 to 2,000 by December 31, 2012. The United States can reduce the numbers of its warheads and delivery systems while simultaneously modernizing its forces. These efforts are not mutually exclusive, as some claim.
There are a number of specific actions and issues the 2009 NPR should consider:
Conduct a Net Assessment of the Strategic Nuclear Balance. U.S. nuclear strategy should not be crafted in a vacuum. The CAP study failed to acknowledge the fact that Washington's nuclear competitors--namely Moscow and Beijing--are modernizing their strategic nuclear forces. The NPR should be accompanied by a comprehensive net assessment of the global strategic balance. Understanding Washington's position in the international system relative to other nuclear states will provide much-needed context for thinking about threats, capabilities requirements, and the future nuclear force structure. The NPR should look seriously at the possibility of amending the current force structure to include significant reductions in the bomber fleet. An increased emphasis on SLBMs should also be examined.
Launch A New Manhattan Project. The United States should consider launching a new Manhattan Project to develop the next generation of nuclear warheads and ballistic missiles. This will not only combat the "brain drain" problem the U.S. is now experiencing but also modernize its aging fleet. The scientists and engineers, many of them Baby Boomers, who built these weapons during the Cold War, are retiring and the transfer of knowledge to younger generations simply is not happening. The challenge of preserving human capital is a "significant problem," according to Feith. Because the Department is "relying less and less on tests, highly experienced people" are needed to verify the safety and reliability of the stockpile through technical extrapolations. However, the knowledge required to conduct nuclear tests is also eroding and must be preserved should need for a resumption of nuclear testing arise.
Articulate a Clear Targeting Policy. The review should also communicate in no uncertain terms that the U.S. reserves the right to respond to nuclear, biological and chemical attacks on the U.S. homeland and its interests with nuclear weapons. This will serve to strengthen U.S. credibility and make clear to all members of the international community that the U.S. will not retreat from its commitments and that those who choose to cross pre-stated redlines do so at their own peril. A credible deterrent rests on modernized forces and a clear doctrine for the employment of those forces.
Deterring Non-State Actors. Research funds should be allocated to investigate new concepts related to the deterrence of non-state actors such as al Qaeda. The expertise of social scientists should be leveraged in support of this effort in a manner similar to the Pentagon's Human Terrain Team program, which assigns social scientists to forward-deployed military units. These social scientists rely on "cultural intelligence" to support counterinsurgency operations in the field. This type of "cultural intelligence" could help build tailored deterrence strategies for non-state actors.
Strategic Defenses. A robust Ballistic Missile Defense (BMD) system not only strengthens deterrence but also enables Washington to hedge against the possibility of a deterrence failure from rogue states like Iran. Washington should proceed with its plans to place interceptors and their associated radar components in Eastern Europe. The 2009 NPR should analyze the individual systems that comprise the BMD architecture in order to ensure that each component is achieving its milestones on time and within budget.
Organizational Changes in the Defense Department. In order to manage more effectively the Department's nuclear mission the Office of the Under Secretary of Defense for Policy should be reorganized. Currently, responsibility for nuclear policy is spread throughout the Department. An assistant secretary of defense (ASD) position should be established to oversee all aspects of nuclear weapons policy for the Defense Department. The new ASD for Nuclear Weapons Policy should absorb the nuclear counterproliferation and threat reduction missions from the ASD for Global Security Affairs. Subordinate deputy assistant secretary positions should be created for Nuclear Deterrence Operations, Nuclear Threat Reduction and Stockpile and Delivery System Management. Additionally, Congress should amend the statutory membership of the Nuclear Weapons Council to include the deputy secretary of defense. The Nuclear Weapons Council is the joint Defense Department/Energy Department organization responsible for management of the nuclear stockpile.
Develop a Roll Out Strategy. The CAP study rightly noted the need for an effective strategy to communicate the findings of the NPR. False perceptions and an incomplete communications strategy plagued the 2001 NPR, which was widely misinterpreted both domestically and internationally. The Obama administration should go beyond the requisite public briefing and congressional testimony typically used to communicate the results of the NPR. It should engage in a continuous and open dialogue with allies and should also participate in round table policy discussions and lectures at think tanks throughout the country.
Lobby Members of Congress. In the final analysis, nuclear modernization cannot occur without the support of Congress. In recent years, Congress has simply refused to fund the Bush administration's nuclear modernization initiatives including the Reliable Replacement Warhead (RRW) program, the replacement for the W-76 warhead, and the Robust Nuclear Earth Penetrator, or "bunker buster." In September 2008, defense appropriators in the House and Senate refused once again to fund RRW. Opposition on Capitol Hill has been largely bipartisan. There are, however, a number of powerful advocates on Capitol Hill, who truly grasp the need for modernization. Senators Jon Kyl (R-Ariz.) and Jeff Sessions (R-Ala.) and Representative Terry Everett (R-Ala.) are three of the strongest advocates, who have consistently voted to fund important modernization efforts such as RRW. In a September 2008 speech at the George C. Marshall Annual Awards Dinner, Senator Kyl lamented the state of the U.S. nuclear weapons complex calling nuclear deterrence "an issue which has too long been ignored, primarily by the U.S. Congress." As Secretary Gates noted in the January/February 2009 issue of Foreign Affairs, "the Department of Defense and the air force have taken firm steps to return excellence and accountability to nuclear stewardship." He urged lawmakers on Capitol Hill fulfill their obligation: "Congress needs to do its part by funding the Reliable Replacement Warhead Program--for safety, for security, and for a more reliable deterrent."
As Walter B. Slocombe observed in 1981, "The fundamental--and unchanged--strategic objective of the United States is to deter aggression that could lead to nuclear war." Nearly thirty years later that objective remains unchanged. It remains the solemn duty of the U.S. government to think about all possible contingencies to ensure this nation is as prepared as it can be--to think the unthinkable. On December 2, 2008, the bi-partisan Commission on the Prevention of WMD Proliferation and Terrorism released its report declaring, "The Commission believes that unless the world community acts decisively and with great urgency, it is more likely than not that a weapon of mass destruction will be used in a terrorist attack somewhere in the world by the end of 2013." Another bi-partisan commission, the Commission on the Strategic Posture of the United States, which has been tasked to review all aspects of Washington's nuclear posture, will deliver its findings on April 1, 2009. Congress needs to do more than create bipartisan commissions to examine problems we know exist; it needs to appropriate the funds required to modernize our aging nuclear weapons complex.
On September 10, 2001, the notion that nineteen men with box cutters would hijack four commercial airliners and take nearly three thousand innocent lives in New York, Pennsylvania and Virginia would have been unthinkable--but it shouldn't have been. The idea of using commercial airliners as guided missiles was not new. In fact, author Tom Clancy wrote about it in his novel Executive Orders in 1994 and the 1995 Bojinka Plot included a similar attack on CIA Headquarters. The events of September 11, 2001 illustrated the consequences of the sterilized thinking of stove-piped bureaucracies and the costs of failing to consider the unthinkable.
Despite all our hopes, nuclear weapons will continue to exist. As Senator Kyl noted in his September 2008 speech, "The bottom line is that the nuclear genie is out of the bottle and nobody is ever going to stuff it back in, in spite of their good intentions or the audacity of hope or any other kind of slogan." It is a reality that all members of Congress--and the Obama administration--must accept if our deterrent is to be preserved and the unthinkable never allowed to happen.
Thomas M. Skypek is a Washington-based defense analyst. The views expressed herein are solely those of the author.
Tuesday, March 3, 2009
Commerce, Competition, and the Court: An Agenda for a Constitutional Revival
Commerce, Competition, and the Court: An Agenda for a Constitutional Revival. By Michael S. Greve
Bradley Lecture
AEI, Feb 03, 2009
In this Bradley Lecture, Michael S. Greve urges a return to constitutional structure as the Supreme Court's principal focus and responsibility. "Return," because the Supreme Court of the late nineteenth century--the purest "structure court" in American history--aggressively deployed constitutional doctrines designed to protect a competitive political process and economy. The malignant features of today's legal landscape, from "hellhole" jurisdictions to state protectionism to government by (attorney general) indictment, all result from the Court's abandonment of its structural constitutional role in the wake of the New Deal. A recommitment to that role would compel a fundamental rethinking on all sides of the legal debate, including conservative originalists.
Part I
Courts are empowered to interpret constitutions for two basic purposes. One, they coordinate relations among government institutions--the legislature and the executive, states and the national government, and so forth. Let's call this a "structure" function. Two, courts protect individual rights against majoritarian politics. Let's call courts committed to that business "rights courts."
Our Supreme Court is a rights court. It has lots of company: around the globe, courts enforce an ever-expanding panoply of rights, most having to do with sex or with welfare. Rights proliferation and the accompanying empowerment of courts and legal elites--"juristocracy," as political scientists now say--have been among the most conspicuous features of the "Third Wave" of democratization over the past decades.
Note the oddity: by all accounts, courts are the least democratic institution of liberal regimes. Only in the United States, however, has juristocracy's anti-democratic thrust met with resistance--conservative resistance. Of course, libertarians complain about the Court failure to enforce "economic" rights. But the anti-rights-proliferation, pro-democracy voices clearly dominate among conservatives. I have been part of that chorus, and I am not going to defect to the boisterous rights mob tonight. I believe, however, that the conservative choir needs a second, new but also very old tune. The Court and its law should not simply be against more rights but also for more structure.
Behind that proposition lurk an obvious question, and a controversial contention. The question: why do we need a second tune? Don't we conservatives have our originalist, anti-rights-proliferation, pro-democracy, anti-activist ducks all in a row? My answer: I pity the ducks. The unvarnished pro-democracy position was put before the American public in 1987, in Robert Bork's nomination. It lost decisively, and it has failed to recover since. I do not mean to excuse the despicable tactics deployed in the campaign against Judge Bork. Nor do I deny that sustained conservative opposition to promiscuous rights proliferation may have helped to prevent the Supreme Court from expelling Right-to-Life constituencies from respectable political discourse. But we always had a broader contention: we ought to govern ourselves, and the Supreme Court's endeavor to articulate a collective moral conscience is inherently problematic, regardless of its appalling content. That broader argument has plainly failed.
Why has it failed? Juristocracy's worldwide ascent suggests a deeper cause than the ebb and flow of American politics. Martin Shapiro, from whom I have borrowed the distinction between structure courts and rights courts, has linked the rise of rights courts to mass democracy. Competitive politics is plausible if it is a reasonably fair repeat game. That confidence in democracy is hard to sustain in deeply divided societies, where a loss in one round may mean death. Nor is it plausible even in the societies of Western Europe or Canada, where every citizen's welfare, from cradle to grave, hangs on political allocations. One way of hedging against the risk of ruin is to let rights proliferate and to entrust their protection to an independent body--the judiciary.
Conservative resistance to the Supreme Court's reign rests on the contention that we Americans are better than that. Are we? My colleague Karlyn Bowman has collected data on public confidence in our institutions. That confidence collapsed in the late 1960s, just when the country was supposedly becoming vastly more democratic. In the long run, the only institutions to emerge unscathed, and in fact with heightened degrees of public trust, were the least democratic: the armed forces, and the Supreme Court. Quite naturally, people measure "democracy" by the democratic institutions they know and see. And they neither like nor trust what they see.
Hence, my proposition: a jurisprudence that sets is face against juristocracy and rights proliferation solely on the grounds of democracy, without more, is doomed. Moreover, it deserves its fate. "Democracy" (full stop, period) is just a slogan. If it means an unstructured, undisciplined, exploitative interest group free-for-all--our politics, that is to say--it is an unpalatable alternative to juristocracy. On the other hand, if democracy means a structured, institutionally cabined and constitutionally disciplined form of government--a republican form of government, as we used to say--it is emphatically worth having. By constitutional design, though, that form of government assigns a prominent role to the Supreme Court. It collapsed because the Court abandoned that role, and it cannot and will not restore itself. Thus, the appeal to democracy has to be coupled with a credible judicial re-commitment to the Court's constitutionally envisioned role of protecting a transparent, responsible politics.
A rights court--our Court--cannot and will not do that. Even an anti-rights court cannot and will not do it. I will provide examples of the contemporary Court's dereliction at the structure front. But the full extent of that abdication appears in sharpest relief against the purest structure court in American history: the Court of the Gilded Age. Let me introduce you to that Court. What did it do, and why did it do it?
Part II
The late nineteenth-century Court under Chief Justices Waite and Fuller is bracketed by two seminal rights cases. At the front end, the Slaughterhouse Cases in 1873 held that Privileges and Immunities Clause of the newly enacted Fourteenth Amendment covered only the rights of national citizenship and, in so doing, took a potentially enormous number of rights claims off the table. The tail end is the notorious Lochner case in 1905, which covered a portion of the ground abandoned in the Slaughterhouse Cases with a doctrine that eventually came to be called "substantive due process." Between those bookends, the Court had virtually nothing to say about rights.
The justices, though, did not sit idle. Year-in, year-out, they decided more than twice as many cases as the modern Supreme Court (without law clerks, mind you). What were those cases about? Overwhelmingly, they had to do with constitutional structure--in particular, the structure that governs the commerce of the United States. And overwhelmingly, they arose in diversity jurisdiction--that is, the Court's constitutional authority to decide cases between a state and a citizen of another state, or between citizens of different states. Two sets of doctrines and cases loomed particularly large: federal general common law, and the dormant Commerce Clause.
"Federal general common law," very roughly, says this: in diversity cases that are not governed by a federal or state statute, the federal courts will decide cases under a federal common law (of contract, or of negotiable instruments), as opposed to following state courts' pronouncements. In substance, the doctrine protected contracts in interstate commerce. Railroad bond cases illustrate the point.
At the time, local governments (primarily in the Midwest) often sought to attract railroad investment with offers of aid, typically financed by floating local bond issues. State constitutions often barred local governments from issuing such bonds or limited their terms. Equally often, those restrictions were ignored, with a willful intent to dishonor the bonds once they had been sold or re-sold to Wall Street or foreign investors. State courts routinely sanctioned those maneuvers. The question was, and is, whether the protection of bond investments and contracts is any of the Supreme Court's business. On one view, local autonomy should trump. In theory, the risk that local governments might do very bad things could be priced into the bonds. In practice, however, nobody knew how to price the risk of random exploitation on the frontier with any kind of accuracy. The liquidity and marketability of commercial paper in secondary markets depended on ensuring the integrity of the underlying transactions. And only the Supreme Court could provide that protection.
The force of these considerations appears in Gelpcke v. Dubuque, an early and notorious bond case decided in 1864. The Iowa legislature had authorized localities to float railroad bonds, and the Iowa Supreme Court had repeatedly declared those authorizations constitutional--until the schemes went belly-up and the Iowa Court determined that the authorization violated the State Constitution after all. With that ruling, the bondholders were out of luck. The Supreme Court reversed on principles of general law. The justices were scandalized by the political shenanigans that had prompted the Iowa Court's about-face. "We shall never immolate truth, justice, and the law," the Court intoned, "because a state tribunal has erected the altar and decreed the sacrifice."[1] Only Justice Miller (who hailed from the Iowa town of Keokuk) dissented, as he would in many municipal bond cases.
Over time, municipal bond defaults reached some $100-$150 million--real money in those days. The settlement was a protracted tug of war between the states and the Supreme Court. States barred railroads and other companies from doing business in the state unless they surrendered their right to invoke the federal courts' diversity jurisdiction. Counties re-organized themselves to escape payment. State judges consistently sided with the debtors. With equal consistency and determination, the Supreme Court enforced the contractual rules and insisted on its jurisdiction.
The general common law, then, protected already-made investments in interstate commerce. What, though, of cases where states seek to block those investments? The Constitution affirmatively empowers Congress to regulate "commerce among the several states." Throughout most of our history, that language has been taken to prohibit--of its own force, and without any federal legislation--certain state regulations of interstate commerce. At the time, this so-called "dormant" Commerce Clause prohibited two types of state laws. First, states were prohibited from taxing or regulating the in-state leg of interstate commerce on a discriminatory basis. Second, states were prohibited from taxing or regulating interstate commerce on an "extraterritorial" basis. Interstate commerce as such was exclusively for Congress to regulate.
That two-pronged doctrine did not protect all interstate commerce as well as one might wish. For example, insurance was not deemed to constitute interstate commerce at all. Hence, states discriminated and excluded to their hearts' content, as they do to this day. Similarly, the last mile of a railroad connection was undoubtedly in-state. States taxed that last mile and its proceeds to the hilt, with the result that nobody made any money running a railroad in those days. But for the great majority of industries, the dormant Commerce Clause solved a central problem--the problem of vertical firm integration.
Consider a humble, once-standard household item--the sewing machine. Around 1860, I.M. Singer had found that existing local wholesalers were incapable of supplying consumer credit or demonstration and repair services. Over the next two decades, therefore, Singer created its own distribution network, consisting of over 500 stores that also served as a base for a large force of door-to-door salesmen. States did not like it one bit. They stepped up enforcement of licensing laws against peddlers, and they imposed taxes that effectively put the sellers of out-of-state products out of business.
Singer had both the incentives and the muscle to break those barriers. It urged its local agents to ignore state laws so as to invite prosecution and conviction and then hired high-powered law firms to contest the state laws. In 1875, the strategy bore fruit: in Welton v. Missouri, the Supreme Court invalidated a Missouri law that required peddlers--defined as persons selling commodities "not the growth, produce, or manufacture of the State"--to pay a license fee for the privilege of doing local business. The prohibitory force of the Commerce Clause, the Court held, "continues until the commodity has ceased to be the subject of discriminating legislation by reason of its foreign character"--that is to say, up to and including final retail sales.[2]
Precariously perched on this doctrinal beachhead, Singer was still exposed to a barrage of hostile fire. Virginia, in one variation on a common theme, enacted a license fee that effectively forced I.M. Singer and similar companies to disband their state sales force. The Supreme Court invalidated that scheme, too, along with several others.
A similar pattern unfolded in the meat industry. The invention of the refrigerated railroad car sharply reduced transportation costs, relative to on-the-hoof transport. The "Big Four" Chicago meatpackers, led by the Swift Company, soon proved able to ship dressed beef over long distances. But Swift did not become dominant because of the refrigerated railroad car. Rather, it was the first to appreciate the need for a vertically integrated distribution network to produce, store, and deliver meat all the way to retailers. Local wholesalers, organized in 1886 as the National Butchers' Protective Association (BPA), organized boycotts and mobilized local opposition--a losing cause, in light of the national firms' low prices and the superior quality of their products.
The local monopolists' best bet was "federalism"--specifically, the states' right to ensure their citizens' health and safety. That claim was more than colorable. There was a real risk of sales of spoiled goods to consumers who cannot readily ascertain the quality of the product, and modern solutions (such as branding by producers or supermarkets) were decades away. Even so, when states mandated inspections of out-of-state beef, the Chicago producers prevailed. Health and safety concerns, the Court insisted, would have to be met by measures less fraught with protectionist risks.[3] Evasive state maneuvers enacted at the BPA's behest (such as discriminatory inspection fees) were likewise struck down by the Court.
Part III
Three decades after Gelpcke, the justices had decided some 300 railroad bond cases. Commerce Clause cases also numbered in the hundreds. And those sets of cases were part of a much larger universe of interrelated doctrines on federal removal jurisdiction, unconstitutional conditions, and the law of foreign corporations. All those doctrines show the same pattern: states displayed boundless creativity in expropriating interstate commerce. The Supreme Court displayed equal creativity and determination in adjusting constitutional doctrines to forestall that result. Though highly technical, those doctrines were anything but lawyerly abstractions. They were a central means--make that, the central means--of the nation's economic and political integration. Deliberately and self-consciously, the Court strove to reconcile democracy and corporate capitalism on a constitutional basis. The doctrines I have sketched--the federal common law, and the dormant Commerce Clause--left states and the Congress ample room to regulate commerce. But they had to do so within constitutional metes and bounds; and in the shadow of a commerce-protective structure, not on an open field.
From our modern vantage, the Court's enterprise looks suspect. Grant the benefits of vertical integration and large-scale industrial organization, and the pernicious effects of state protectionism: isn't it for Congress to decide those questions? Maybe. But Congress had neither the means nor the motives to decide them. Either the Court would establish and protect a viable structure, or no one would.
The point is susceptible to something closely approximating proof. As I mentioned, insurers were not covered by the Court's doctrines. Starting in the 1870s, they begged and lobbied Congress to provide a remedy by providing them with an optional federal charter. My colleague Peter Wallison knows that policy proposal well--not because he is an expert on nineteenth-century law, but because the campaign for a federal insurance charter continues to this day, with no happy end in sight. Or consider the rare case where the Gilded Age Congress actually did intervene--the Sherman Act: as laymen are startled to hear but antitrust lawyers know all too well, that statute prohibits, by its terms, any kind of contract. Congress left to the Supreme Court the task of figuring out rules of reason to make sense of a statute that lacked both.
Behind those illustrations lurk the deep sectional divisions of the age. While the America of the Gilded Age was divided in many ways, a true chasm ran between the industrial core (the Northeast and Great Lakes states) and the agricultural periphery. At stake in the cases over railroad bonds, peddler taxes, and meat inspection was whether the surplus of those activities would accrue to capital and labor in the producer states or else, be expropriated by "consumer" states, mostly the South. The Supreme Court's doctrines did two things. First, by opening the Southern markets, the Court created for American corporations economies of scale that were unavailable anywhere else on the globe. Second, by insisting that the profits find their way home to the producers, it cemented an alliance between labor and capital that spared America the class warfare that accompanied industrialization everywhere else.
Could that regime have been replicated in Congress? No way. Meat inspection? Every state except Illinois would have insisted on protectionist rules. Sewing machines? There would have been a Machine Sellers Protection Act before you can say "Singer." (We did in fact get an economy-wide statute of that sort in 1936--the egregious Robinson-Patman Act.) The Supreme Court's relative insulation from sectional and interest group interests, and the need to formulate general rules that cut across industries, prevented an otherwise certain outcome--the dissipation of economic gains in Congress, and institutionalized class warfare over the scraps.
Do not take this lightly. Many countries--Germany, Britain, France--underwent a transition to large-scale capitalism around the same time. As the renowned Harvard sociologist Barrington Moore observed, no democracy seems to have undergone it willingly. Capitalism's destructive side appears to leave only two options--endless side payments to the losers, which wipe out the gains; or else, class warfare and, as in Germany, authoritarian politics. America alone escaped the horns of that dilemma. As Cornell's Richard Bensel, one of the keenest experts on the period, has shown, a principal reason for that good fortune was the Supreme Court's signal contribution to "The Political Economy of American Industrialization."[4]
The Court's resolve to play that structural role, I submit, was not judicial "activism." It was firmly rooted in a fundamental constitutional precept and intuition. Alexander Hamilton argued that political integration can be achieved in only one of two ways--by force of arms, or by law (the "mild influence of the magistracy," as Hamilton put it). A century later, that alternative was still very real. The justices of the Gilded Age were well aware of it, and they acted accordingly.
Part IV
Fast-forward a century: the Supreme Court has ceased to play a structural role--not by desuetude, but by deliberate decision. Diversity jurisdiction, the primary structure venue, has been driven out by federal question jurisdiction, which is principally a rights venue. (Think "Bong Hits for Jesus": that is a federal question.) One of the Gilded Age doctrines I described is dead: a century's worth of federal general common law was buried--as unconstitutional, no less--in the famous Erie Railroad case (1938). My second example, the dormant Commerce Clause, has been stripped of its extraterritoriality prong: California or Kansas may regulate the Internet, barring only an overt preference for local residents. And even that anti-discrimination remnant is now widely viewed as illegitimate. In a recent decision (United Haulers v. Oneida-Herkimer Solid Waste Management Authority), the Supreme Court ominously compared the dormant Commerce Clause to Lochner.[5]
In the Supreme Court's own telling, this abandonment embodies a shift from federal judicial imperialism to judicial neutrality: less judicial control over the structure of the political process ipso facto means more democracy--and let free citizens make of it what they will. But that posture is at best a conceit. The decision against structural checks is a decision for political pathologies and exploitation.
Should you have the misfortune of wandering into a small town in Jackson County, Mississippi or Morris County, Texas, you will find the social structure virtually unchanged from Melvin Fuller's days. Everyone in town owes his livelihood to a single individual. That local lord resides in a big, imposing mansion--the only one around, separated from the shacks. He has prospered by expropriating rents from interstate commerce. He is a "philanthropist," meaning that he shares a few table scraps with the school band and the fire brigade. But the local lord is not a plantation owner; he is a trial lawyer. He has made the cotton fields into a private airstrip. And the former sharecroppers have found new employment as--the jury pool.
What does this have to do with the judiciary's structural surrender? Everything. Under the old constitutional structure, local lords and monopolists operated under severe constitutional constraints just as soon as they entered into the interstate commerce they sought to exploit. Correspondingly, parties in interstate commerce enjoyed robust protections against local exploitation. Those constraints and protections have waned or been eliminated outright. In fact, the now-operative rules systematically steer business the local monopolist's way.
Back then, diversity cases were routinely decided under general common law. Now, the ironclad rule of Erie Railroad is that they must be decided under state law--in federal court, assuming a defendant can even get to that forum, under the state law in which the federal court sits. Since diversity cases by definition implicate more than one state's law, the question then arises whether a state court is obligated to respect the law that obtains in the defendant's state. The Constitution speaks directly to that question: it says that each state shall give "full faith and credit" not only to sister-states' "judicial proceedings," but also to their "public Acts." The Supreme Court, too, has spoken directly: it has said, in its most recent pronouncement, that, in the context of public acts, full faith and credit is satisfied by no faith and credit. The petitioner in that case was not some opportunistic corporation but the State of California, whose tax officials had been dragged into a Nevada court. Under California law, the officials enjoyed immunity; in Nevada, under Nevada law, they were stripped of it. Responding to California's argument that the constitutional language must mean something, the justices had this to say: "We decline to embark on the constitutional course."[6] The case is Franchise Tax Board v. Hyatt (2003), and the decision and opinion were unanimous.
Under those rules, what prevents plaintiffs from suing in jurisdictions that will reliably home-cook out-of-state defendants? Answer, "nothing." The strategic choice of law and "forum-shopping among states," the Supreme Court has said, is "reserved for plaintiffs."[7] (That, too, is a direct quotation.) You wonder why there are judicial hellholes? The mystery has been solved. They are the inevitable result of a Court that abjures a coordinating role.
Part V
The doctrines I just sketched share two characteristics. First, they have no constitutional basis. Second, all of the decisions, from the Lochner comparison to the "we decline" morsel to the pro-plaintiff choice-of-law pronouncement, were written and joined by conservative justices. Justice Alito alone is wholly innocent and, to his great credit, has firmly defended the dormant Commerce Clause.
Why would conservative justices read the Constitution as a trial lawyers' Bill of Rights? The answer takes us back to the connection between rights and structure. If rights proliferation is bad because it is anti-democratic, then the implicit prescription--less judicial intervention, more democracy--must also apply to structure. "Democracy" is whatever an unconstrained political process throws up. If the people do not like the results, let them elect someone else. So goes the train of thought. But its destination is a very grim place. And the conductors presuppose a coordinating capacity that our political institutions no longer possess--if, indeed, they ever did.
The nineteenth century trajectory of the dormant Commerce Clause and federal common law, I said earlier, proves that Congress was simply incapable of supplying the structural function of those doctrines. In recent times, the proofs have continued to accumulate. In 1959, the Supreme Court effectively repealed dormant Commerce Clause restrictions against the extraterritorial state taxation of business income.[8] The Court acknowledged that the field needed coordination, and begged Congress to provide it. A half-century later, we are still waiting. In 1964, in a famous essay, Judge Henry Friendly endorsed the demise of a judicially enforced Full Faith and Credit Clause, already in progress at the time--but earnestly urged Congress to legislate a desperately needed statute to coordinate jurisdiction and choice of law.[9] If the saintly Judge Friendly is looking down on us now, he will see that no such statute exists; and, seeing all of history in the blink of an eye, he will tell us that it never will exist. Mind you: Judge Friendly recognized the need for legal structure in this field before the advent of modern class actions, the emergence of an organized litigation industry, and migrating asbestos mass torts. To no one's surprise, the Court's repeated, desperate calls for Congress to clean up that "elephantine mess" have likewise gone unheeded.
I seriously doubt that any Congress, ever, had the ability to play the coordinating role that the modern Court's doctrines presuppose. I doubt, even more seriously, that the Founders expected Congress to be capable of playing that role. Be that as it may, though, the modern Congress most certainly lacks the judicially wished-for coordinating capacity. Congress is now a "universalist" institution, which is the political scientist way of saying: "I scratch your back, you scratch mine." Except under rare conditions, laws get enacted either near-unanimously (because everyone has been paid off) or else, not at all. Even the recent stimulus bill was passed only because it stimulated every Democratic interest, plus three Republicans.
A closely related phenomenon is the explosive growth and increased power of semi-autonomous governmental or quasi-governmental agencies. Products and profits disappear in hellhole jurisdictions; no one checks their exploitative tendencies. Entire industries are reorganized in multistate settlements under the auspices of the National Association of Attorneys General. Any AG in the country can unleash these proceedings; no one controls or coordinates them. No one really governs the agencies of the City of New York; most operate under open-ended judicial consent decrees. Despite much agitation, we do not have a reliable, knowable accounting regime for public corporations. Technically, those rules are the business of the Public Corporation Accountability Oversight Board, affectionately know as "Pekaboo," a wholly independent and nominally private body that combines rulemaking, prosecutorial, and for good measure taxing powers. But Pekaboo insists that it is only an "inferior" bit player and doing what it is being told. Told by whom? By the SEC, another independent body. By congressional subcommittees. Or maybe by Arthur Levitt.
Is any of this going to change? Why, yes: it will go from bad to much worse. James Madison proffered a sophisticated theory why Congress would be capable of enacting public-regarding laws, as opposed to factional dross. The central premise, though, was what Madison called "distance" between the electorate and the legislators. We now call that "agency slack," and the fact is that there isn't any. Every Congressman and Senator is perfectly monitored by his or her constituent interests. Coordination cannot happen because it requires mutual concessions, which no legislator can make. Similarly, the proliferation of functionally differentiated, semi-autonomous government organizations is an irreversible by-product of economic modernization and political democratization. "Democracy"--in the anarchic sense of interest group politics and institutional fragmentation--isn't the answer to our problems. It is their cause. A responsible constitutional jurisprudence would reflect that fact. It would re-commit the Court to its principal constitutional task: supply structure.
Part VI
In urging that re-commitment, I do not suggest that federal judges act as a National Review in robes--standing athwart history, and yelling "stop." The point of institutional design, constitutional norms, and grants of judicial power is not to arrest or reverse the course of history. The point is to bound the equilibrium outcomes and to intervene when we can be confident that intervention translates into improvement, on a constitutional margin. Think of antitrust law as an analogy: No one believes that the courts are the first line of defense against anti-competitive conduct. No one believes that they should superintend private arrangements on an on-going basis. But we do not on that account discard judicially enforced rules against naked cartels. Nor do we simply say, "Let Congress provide." The Supreme Court has been quite willing to cultivate and coordinate this field on its own.
If I were inclined to sarcasm and point-scoring, I would note that antitrust law supplies a coordinating function because it is a pristine form of federal common law--the very thing that Erie Railroad supposedly prohibits. Since I am so inclined, I do so note. But the analogy carries further. In antitrust law, courts generally trust economic competition but intervene when conspiracies are clearly afoot. We should adopt the same approach with respect to constitutional law and political markets.
Competition as a constitutional principle separates political pathologies that, so to speak, come with the democratic territory (like congressional universalism) from those that are constitutionally suspect, or even prohibited outright. By way of example: one pro-competitive coordination rule of thumb is a baseline of exclusivity. If the FDA has been entrusted with regulating drug approval or the FTC, tobacco advertising, only the strongest evidence to the contrary should overcome the presumption that the authority is exclusive. In a characteristically brilliant essay, Richard Epstein and I have developed a workable doctrine along these lines under a catchy moniker: one problem, one sovereign.[10]
A close corollary is that joint exercises of public authority are inherently suspect. As it happens, an application of that principle is right there in the Constitution. Article I §10 categorically forbids states from making treaties with one another, or with foreign nations. And it forbids them from making any other "compact or agreement" without the consent of the Congress. Predictably, though, the Supreme Court has done with that "Compact Clause" what it has done with all other inconvenient structural provisions: it has read it out of the Constitution. In a 1978 case, the Court held that the states may do jointly whatever they may do individually, without congressional consent.[11] In other words, the Compact Clause forbids nothing that is not already illegal. On that supposed authority, the states in 1998 banded together with one another and with the major tobacco producers to commit what my friend Jonathan Rauch has called "the constitutional crime of the century"--the imposition of a $250 billion tobacco excise tax that no legislator, state or federal, ever voted for. On that same authority, states have signed greenhouse gas compacts with each other, and with foreign nations, without congressional consent. In my estimation, federal courts should enjoin those arrangements. In so doing, they would re-impose on our faction-ridden politics structural constraints that are both badly needed and directly required by the Constitution.
So there is my program. I fear that it will leave many of you disappointed. I have no "Dirty Dozen" mega-precedents to overrule; no grand "presumption of liberty" that will bring the Constitution back from exile; no fifth justice on Injured Reserve whose activation will bring victory at last. A re-commitment to structure would mean cases without sex appeal, and mostly without sex. It would mean doctrines that only lawyers can comprehend and decisions that proceed in an incremental, common-law-like fashion, not by bold declarations. Structure courts aren't given to dramatic gestures, because gestures don't structure anything. In my estimation, that dial-down is actually a virtue: structural cases compel judges on all sides to argue like lawyers, as opposed to oracles or culture warriors. I do concede that my program lacks the inspiring, constituency-building appeal of an originalist "no more rights" program, or for that matter a libertarian "more of our rights" program. Those programs, however, would leave the pathologies of our politics unchecked. A structure court would attend to them.
The hard question is how far it could get. That is primarily a question not of legal doctrine, but of politics. Seemingly arcane structural doctrines can be and have been every bit as controversial and ideological as, say, abortion. The Fuller Court's diversity jurisprudence and general common law were targets of relentless attacks and agitation long before Lochner, and they remained its targets long afterward. Whose attacks? Politically, state governments and their protectionist hangers-on, such as the Butchers Protective Association. An assortment of what we now call "public interest groups," such as prohibitionists. And, of course, trial lawyers. Intellectually, the law faculties at Harvard, Yale, and Columbia. The Court's course, they all chirped, thwarted democracy and democratic aspirations.
What protected the Court and its jurisdiction against that assault? Answer, business, and the Republican Party. Back then, the GOP had the good sense of not having a legislative program at all, knowing full well that any program would fragment its electoral base. Instead, the GOP defended the Supreme Court's diversity jurisdiction against constant attack in Congress; appointed and confirmed justices who would exercise it; and dissipated the proceeds of the tariff to its friends. The permanent Republican majority of those decades rested on a simple formula: judicial ordering; tariffs; earmarks all the way.
That political context illustrates my final brief points. One, constitutional understanding is not simply a matter of having the "right" fifth justice. A structure court presumes, or will have to create, a politics that creates room for that role. Two, a judicial re-commitment to structure and coordination would be an intensely ideological affair. A judicial supply of structure translates into a competitive, disciplined politics. Judicial abdication at that front translates into a "democracy" where any faction enjoys the "active liberty" of occupying some institutional bastion any day of the week, and where the only secure expectation is permanent instability. That was the choice before the Fuller Court. It is our choice today. Whose side are you on?
Our current constitutional debate evades that question. The contestants fight about rights--that is to say, external barriers to a politics that all presume to be an unstructured mess, a factional grabfest, beyond judicial purview. That is not my answer. My answer is James Madison's. He had a word for an unconstrained politics: he called it anarchy, "as in a state of nature."[12] We have a constitutional structure calculated to forestall that result. If the Court will not enforce that structure, I'll join the juristocracy chorus after all: Give me my rights.
Michael S. Greve is the John G. Searle Scholar at AEI.
Notes
Bradley Lecture
AEI, Feb 03, 2009
In this Bradley Lecture, Michael S. Greve urges a return to constitutional structure as the Supreme Court's principal focus and responsibility. "Return," because the Supreme Court of the late nineteenth century--the purest "structure court" in American history--aggressively deployed constitutional doctrines designed to protect a competitive political process and economy. The malignant features of today's legal landscape, from "hellhole" jurisdictions to state protectionism to government by (attorney general) indictment, all result from the Court's abandonment of its structural constitutional role in the wake of the New Deal. A recommitment to that role would compel a fundamental rethinking on all sides of the legal debate, including conservative originalists.
Part I
Courts are empowered to interpret constitutions for two basic purposes. One, they coordinate relations among government institutions--the legislature and the executive, states and the national government, and so forth. Let's call this a "structure" function. Two, courts protect individual rights against majoritarian politics. Let's call courts committed to that business "rights courts."
Our Supreme Court is a rights court. It has lots of company: around the globe, courts enforce an ever-expanding panoply of rights, most having to do with sex or with welfare. Rights proliferation and the accompanying empowerment of courts and legal elites--"juristocracy," as political scientists now say--have been among the most conspicuous features of the "Third Wave" of democratization over the past decades.
Note the oddity: by all accounts, courts are the least democratic institution of liberal regimes. Only in the United States, however, has juristocracy's anti-democratic thrust met with resistance--conservative resistance. Of course, libertarians complain about the Court failure to enforce "economic" rights. But the anti-rights-proliferation, pro-democracy voices clearly dominate among conservatives. I have been part of that chorus, and I am not going to defect to the boisterous rights mob tonight. I believe, however, that the conservative choir needs a second, new but also very old tune. The Court and its law should not simply be against more rights but also for more structure.
Behind that proposition lurk an obvious question, and a controversial contention. The question: why do we need a second tune? Don't we conservatives have our originalist, anti-rights-proliferation, pro-democracy, anti-activist ducks all in a row? My answer: I pity the ducks. The unvarnished pro-democracy position was put before the American public in 1987, in Robert Bork's nomination. It lost decisively, and it has failed to recover since. I do not mean to excuse the despicable tactics deployed in the campaign against Judge Bork. Nor do I deny that sustained conservative opposition to promiscuous rights proliferation may have helped to prevent the Supreme Court from expelling Right-to-Life constituencies from respectable political discourse. But we always had a broader contention: we ought to govern ourselves, and the Supreme Court's endeavor to articulate a collective moral conscience is inherently problematic, regardless of its appalling content. That broader argument has plainly failed.
Why has it failed? Juristocracy's worldwide ascent suggests a deeper cause than the ebb and flow of American politics. Martin Shapiro, from whom I have borrowed the distinction between structure courts and rights courts, has linked the rise of rights courts to mass democracy. Competitive politics is plausible if it is a reasonably fair repeat game. That confidence in democracy is hard to sustain in deeply divided societies, where a loss in one round may mean death. Nor is it plausible even in the societies of Western Europe or Canada, where every citizen's welfare, from cradle to grave, hangs on political allocations. One way of hedging against the risk of ruin is to let rights proliferate and to entrust their protection to an independent body--the judiciary.
Conservative resistance to the Supreme Court's reign rests on the contention that we Americans are better than that. Are we? My colleague Karlyn Bowman has collected data on public confidence in our institutions. That confidence collapsed in the late 1960s, just when the country was supposedly becoming vastly more democratic. In the long run, the only institutions to emerge unscathed, and in fact with heightened degrees of public trust, were the least democratic: the armed forces, and the Supreme Court. Quite naturally, people measure "democracy" by the democratic institutions they know and see. And they neither like nor trust what they see.
Hence, my proposition: a jurisprudence that sets is face against juristocracy and rights proliferation solely on the grounds of democracy, without more, is doomed. Moreover, it deserves its fate. "Democracy" (full stop, period) is just a slogan. If it means an unstructured, undisciplined, exploitative interest group free-for-all--our politics, that is to say--it is an unpalatable alternative to juristocracy. On the other hand, if democracy means a structured, institutionally cabined and constitutionally disciplined form of government--a republican form of government, as we used to say--it is emphatically worth having. By constitutional design, though, that form of government assigns a prominent role to the Supreme Court. It collapsed because the Court abandoned that role, and it cannot and will not restore itself. Thus, the appeal to democracy has to be coupled with a credible judicial re-commitment to the Court's constitutionally envisioned role of protecting a transparent, responsible politics.
A rights court--our Court--cannot and will not do that. Even an anti-rights court cannot and will not do it. I will provide examples of the contemporary Court's dereliction at the structure front. But the full extent of that abdication appears in sharpest relief against the purest structure court in American history: the Court of the Gilded Age. Let me introduce you to that Court. What did it do, and why did it do it?
Part II
The late nineteenth-century Court under Chief Justices Waite and Fuller is bracketed by two seminal rights cases. At the front end, the Slaughterhouse Cases in 1873 held that Privileges and Immunities Clause of the newly enacted Fourteenth Amendment covered only the rights of national citizenship and, in so doing, took a potentially enormous number of rights claims off the table. The tail end is the notorious Lochner case in 1905, which covered a portion of the ground abandoned in the Slaughterhouse Cases with a doctrine that eventually came to be called "substantive due process." Between those bookends, the Court had virtually nothing to say about rights.
The justices, though, did not sit idle. Year-in, year-out, they decided more than twice as many cases as the modern Supreme Court (without law clerks, mind you). What were those cases about? Overwhelmingly, they had to do with constitutional structure--in particular, the structure that governs the commerce of the United States. And overwhelmingly, they arose in diversity jurisdiction--that is, the Court's constitutional authority to decide cases between a state and a citizen of another state, or between citizens of different states. Two sets of doctrines and cases loomed particularly large: federal general common law, and the dormant Commerce Clause.
"Federal general common law," very roughly, says this: in diversity cases that are not governed by a federal or state statute, the federal courts will decide cases under a federal common law (of contract, or of negotiable instruments), as opposed to following state courts' pronouncements. In substance, the doctrine protected contracts in interstate commerce. Railroad bond cases illustrate the point.
At the time, local governments (primarily in the Midwest) often sought to attract railroad investment with offers of aid, typically financed by floating local bond issues. State constitutions often barred local governments from issuing such bonds or limited their terms. Equally often, those restrictions were ignored, with a willful intent to dishonor the bonds once they had been sold or re-sold to Wall Street or foreign investors. State courts routinely sanctioned those maneuvers. The question was, and is, whether the protection of bond investments and contracts is any of the Supreme Court's business. On one view, local autonomy should trump. In theory, the risk that local governments might do very bad things could be priced into the bonds. In practice, however, nobody knew how to price the risk of random exploitation on the frontier with any kind of accuracy. The liquidity and marketability of commercial paper in secondary markets depended on ensuring the integrity of the underlying transactions. And only the Supreme Court could provide that protection.
The force of these considerations appears in Gelpcke v. Dubuque, an early and notorious bond case decided in 1864. The Iowa legislature had authorized localities to float railroad bonds, and the Iowa Supreme Court had repeatedly declared those authorizations constitutional--until the schemes went belly-up and the Iowa Court determined that the authorization violated the State Constitution after all. With that ruling, the bondholders were out of luck. The Supreme Court reversed on principles of general law. The justices were scandalized by the political shenanigans that had prompted the Iowa Court's about-face. "We shall never immolate truth, justice, and the law," the Court intoned, "because a state tribunal has erected the altar and decreed the sacrifice."[1] Only Justice Miller (who hailed from the Iowa town of Keokuk) dissented, as he would in many municipal bond cases.
Over time, municipal bond defaults reached some $100-$150 million--real money in those days. The settlement was a protracted tug of war between the states and the Supreme Court. States barred railroads and other companies from doing business in the state unless they surrendered their right to invoke the federal courts' diversity jurisdiction. Counties re-organized themselves to escape payment. State judges consistently sided with the debtors. With equal consistency and determination, the Supreme Court enforced the contractual rules and insisted on its jurisdiction.
The general common law, then, protected already-made investments in interstate commerce. What, though, of cases where states seek to block those investments? The Constitution affirmatively empowers Congress to regulate "commerce among the several states." Throughout most of our history, that language has been taken to prohibit--of its own force, and without any federal legislation--certain state regulations of interstate commerce. At the time, this so-called "dormant" Commerce Clause prohibited two types of state laws. First, states were prohibited from taxing or regulating the in-state leg of interstate commerce on a discriminatory basis. Second, states were prohibited from taxing or regulating interstate commerce on an "extraterritorial" basis. Interstate commerce as such was exclusively for Congress to regulate.
That two-pronged doctrine did not protect all interstate commerce as well as one might wish. For example, insurance was not deemed to constitute interstate commerce at all. Hence, states discriminated and excluded to their hearts' content, as they do to this day. Similarly, the last mile of a railroad connection was undoubtedly in-state. States taxed that last mile and its proceeds to the hilt, with the result that nobody made any money running a railroad in those days. But for the great majority of industries, the dormant Commerce Clause solved a central problem--the problem of vertical firm integration.
Consider a humble, once-standard household item--the sewing machine. Around 1860, I.M. Singer had found that existing local wholesalers were incapable of supplying consumer credit or demonstration and repair services. Over the next two decades, therefore, Singer created its own distribution network, consisting of over 500 stores that also served as a base for a large force of door-to-door salesmen. States did not like it one bit. They stepped up enforcement of licensing laws against peddlers, and they imposed taxes that effectively put the sellers of out-of-state products out of business.
Singer had both the incentives and the muscle to break those barriers. It urged its local agents to ignore state laws so as to invite prosecution and conviction and then hired high-powered law firms to contest the state laws. In 1875, the strategy bore fruit: in Welton v. Missouri, the Supreme Court invalidated a Missouri law that required peddlers--defined as persons selling commodities "not the growth, produce, or manufacture of the State"--to pay a license fee for the privilege of doing local business. The prohibitory force of the Commerce Clause, the Court held, "continues until the commodity has ceased to be the subject of discriminating legislation by reason of its foreign character"--that is to say, up to and including final retail sales.[2]
Precariously perched on this doctrinal beachhead, Singer was still exposed to a barrage of hostile fire. Virginia, in one variation on a common theme, enacted a license fee that effectively forced I.M. Singer and similar companies to disband their state sales force. The Supreme Court invalidated that scheme, too, along with several others.
A similar pattern unfolded in the meat industry. The invention of the refrigerated railroad car sharply reduced transportation costs, relative to on-the-hoof transport. The "Big Four" Chicago meatpackers, led by the Swift Company, soon proved able to ship dressed beef over long distances. But Swift did not become dominant because of the refrigerated railroad car. Rather, it was the first to appreciate the need for a vertically integrated distribution network to produce, store, and deliver meat all the way to retailers. Local wholesalers, organized in 1886 as the National Butchers' Protective Association (BPA), organized boycotts and mobilized local opposition--a losing cause, in light of the national firms' low prices and the superior quality of their products.
The local monopolists' best bet was "federalism"--specifically, the states' right to ensure their citizens' health and safety. That claim was more than colorable. There was a real risk of sales of spoiled goods to consumers who cannot readily ascertain the quality of the product, and modern solutions (such as branding by producers or supermarkets) were decades away. Even so, when states mandated inspections of out-of-state beef, the Chicago producers prevailed. Health and safety concerns, the Court insisted, would have to be met by measures less fraught with protectionist risks.[3] Evasive state maneuvers enacted at the BPA's behest (such as discriminatory inspection fees) were likewise struck down by the Court.
Part III
Three decades after Gelpcke, the justices had decided some 300 railroad bond cases. Commerce Clause cases also numbered in the hundreds. And those sets of cases were part of a much larger universe of interrelated doctrines on federal removal jurisdiction, unconstitutional conditions, and the law of foreign corporations. All those doctrines show the same pattern: states displayed boundless creativity in expropriating interstate commerce. The Supreme Court displayed equal creativity and determination in adjusting constitutional doctrines to forestall that result. Though highly technical, those doctrines were anything but lawyerly abstractions. They were a central means--make that, the central means--of the nation's economic and political integration. Deliberately and self-consciously, the Court strove to reconcile democracy and corporate capitalism on a constitutional basis. The doctrines I have sketched--the federal common law, and the dormant Commerce Clause--left states and the Congress ample room to regulate commerce. But they had to do so within constitutional metes and bounds; and in the shadow of a commerce-protective structure, not on an open field.
From our modern vantage, the Court's enterprise looks suspect. Grant the benefits of vertical integration and large-scale industrial organization, and the pernicious effects of state protectionism: isn't it for Congress to decide those questions? Maybe. But Congress had neither the means nor the motives to decide them. Either the Court would establish and protect a viable structure, or no one would.
The point is susceptible to something closely approximating proof. As I mentioned, insurers were not covered by the Court's doctrines. Starting in the 1870s, they begged and lobbied Congress to provide a remedy by providing them with an optional federal charter. My colleague Peter Wallison knows that policy proposal well--not because he is an expert on nineteenth-century law, but because the campaign for a federal insurance charter continues to this day, with no happy end in sight. Or consider the rare case where the Gilded Age Congress actually did intervene--the Sherman Act: as laymen are startled to hear but antitrust lawyers know all too well, that statute prohibits, by its terms, any kind of contract. Congress left to the Supreme Court the task of figuring out rules of reason to make sense of a statute that lacked both.
Behind those illustrations lurk the deep sectional divisions of the age. While the America of the Gilded Age was divided in many ways, a true chasm ran between the industrial core (the Northeast and Great Lakes states) and the agricultural periphery. At stake in the cases over railroad bonds, peddler taxes, and meat inspection was whether the surplus of those activities would accrue to capital and labor in the producer states or else, be expropriated by "consumer" states, mostly the South. The Supreme Court's doctrines did two things. First, by opening the Southern markets, the Court created for American corporations economies of scale that were unavailable anywhere else on the globe. Second, by insisting that the profits find their way home to the producers, it cemented an alliance between labor and capital that spared America the class warfare that accompanied industrialization everywhere else.
Could that regime have been replicated in Congress? No way. Meat inspection? Every state except Illinois would have insisted on protectionist rules. Sewing machines? There would have been a Machine Sellers Protection Act before you can say "Singer." (We did in fact get an economy-wide statute of that sort in 1936--the egregious Robinson-Patman Act.) The Supreme Court's relative insulation from sectional and interest group interests, and the need to formulate general rules that cut across industries, prevented an otherwise certain outcome--the dissipation of economic gains in Congress, and institutionalized class warfare over the scraps.
Do not take this lightly. Many countries--Germany, Britain, France--underwent a transition to large-scale capitalism around the same time. As the renowned Harvard sociologist Barrington Moore observed, no democracy seems to have undergone it willingly. Capitalism's destructive side appears to leave only two options--endless side payments to the losers, which wipe out the gains; or else, class warfare and, as in Germany, authoritarian politics. America alone escaped the horns of that dilemma. As Cornell's Richard Bensel, one of the keenest experts on the period, has shown, a principal reason for that good fortune was the Supreme Court's signal contribution to "The Political Economy of American Industrialization."[4]
The Court's resolve to play that structural role, I submit, was not judicial "activism." It was firmly rooted in a fundamental constitutional precept and intuition. Alexander Hamilton argued that political integration can be achieved in only one of two ways--by force of arms, or by law (the "mild influence of the magistracy," as Hamilton put it). A century later, that alternative was still very real. The justices of the Gilded Age were well aware of it, and they acted accordingly.
Part IV
Fast-forward a century: the Supreme Court has ceased to play a structural role--not by desuetude, but by deliberate decision. Diversity jurisdiction, the primary structure venue, has been driven out by federal question jurisdiction, which is principally a rights venue. (Think "Bong Hits for Jesus": that is a federal question.) One of the Gilded Age doctrines I described is dead: a century's worth of federal general common law was buried--as unconstitutional, no less--in the famous Erie Railroad case (1938). My second example, the dormant Commerce Clause, has been stripped of its extraterritoriality prong: California or Kansas may regulate the Internet, barring only an overt preference for local residents. And even that anti-discrimination remnant is now widely viewed as illegitimate. In a recent decision (United Haulers v. Oneida-Herkimer Solid Waste Management Authority), the Supreme Court ominously compared the dormant Commerce Clause to Lochner.[5]
In the Supreme Court's own telling, this abandonment embodies a shift from federal judicial imperialism to judicial neutrality: less judicial control over the structure of the political process ipso facto means more democracy--and let free citizens make of it what they will. But that posture is at best a conceit. The decision against structural checks is a decision for political pathologies and exploitation.
Should you have the misfortune of wandering into a small town in Jackson County, Mississippi or Morris County, Texas, you will find the social structure virtually unchanged from Melvin Fuller's days. Everyone in town owes his livelihood to a single individual. That local lord resides in a big, imposing mansion--the only one around, separated from the shacks. He has prospered by expropriating rents from interstate commerce. He is a "philanthropist," meaning that he shares a few table scraps with the school band and the fire brigade. But the local lord is not a plantation owner; he is a trial lawyer. He has made the cotton fields into a private airstrip. And the former sharecroppers have found new employment as--the jury pool.
What does this have to do with the judiciary's structural surrender? Everything. Under the old constitutional structure, local lords and monopolists operated under severe constitutional constraints just as soon as they entered into the interstate commerce they sought to exploit. Correspondingly, parties in interstate commerce enjoyed robust protections against local exploitation. Those constraints and protections have waned or been eliminated outright. In fact, the now-operative rules systematically steer business the local monopolist's way.
Back then, diversity cases were routinely decided under general common law. Now, the ironclad rule of Erie Railroad is that they must be decided under state law--in federal court, assuming a defendant can even get to that forum, under the state law in which the federal court sits. Since diversity cases by definition implicate more than one state's law, the question then arises whether a state court is obligated to respect the law that obtains in the defendant's state. The Constitution speaks directly to that question: it says that each state shall give "full faith and credit" not only to sister-states' "judicial proceedings," but also to their "public Acts." The Supreme Court, too, has spoken directly: it has said, in its most recent pronouncement, that, in the context of public acts, full faith and credit is satisfied by no faith and credit. The petitioner in that case was not some opportunistic corporation but the State of California, whose tax officials had been dragged into a Nevada court. Under California law, the officials enjoyed immunity; in Nevada, under Nevada law, they were stripped of it. Responding to California's argument that the constitutional language must mean something, the justices had this to say: "We decline to embark on the constitutional course."[6] The case is Franchise Tax Board v. Hyatt (2003), and the decision and opinion were unanimous.
Under those rules, what prevents plaintiffs from suing in jurisdictions that will reliably home-cook out-of-state defendants? Answer, "nothing." The strategic choice of law and "forum-shopping among states," the Supreme Court has said, is "reserved for plaintiffs."[7] (That, too, is a direct quotation.) You wonder why there are judicial hellholes? The mystery has been solved. They are the inevitable result of a Court that abjures a coordinating role.
Part V
The doctrines I just sketched share two characteristics. First, they have no constitutional basis. Second, all of the decisions, from the Lochner comparison to the "we decline" morsel to the pro-plaintiff choice-of-law pronouncement, were written and joined by conservative justices. Justice Alito alone is wholly innocent and, to his great credit, has firmly defended the dormant Commerce Clause.
Why would conservative justices read the Constitution as a trial lawyers' Bill of Rights? The answer takes us back to the connection between rights and structure. If rights proliferation is bad because it is anti-democratic, then the implicit prescription--less judicial intervention, more democracy--must also apply to structure. "Democracy" is whatever an unconstrained political process throws up. If the people do not like the results, let them elect someone else. So goes the train of thought. But its destination is a very grim place. And the conductors presuppose a coordinating capacity that our political institutions no longer possess--if, indeed, they ever did.
The nineteenth century trajectory of the dormant Commerce Clause and federal common law, I said earlier, proves that Congress was simply incapable of supplying the structural function of those doctrines. In recent times, the proofs have continued to accumulate. In 1959, the Supreme Court effectively repealed dormant Commerce Clause restrictions against the extraterritorial state taxation of business income.[8] The Court acknowledged that the field needed coordination, and begged Congress to provide it. A half-century later, we are still waiting. In 1964, in a famous essay, Judge Henry Friendly endorsed the demise of a judicially enforced Full Faith and Credit Clause, already in progress at the time--but earnestly urged Congress to legislate a desperately needed statute to coordinate jurisdiction and choice of law.[9] If the saintly Judge Friendly is looking down on us now, he will see that no such statute exists; and, seeing all of history in the blink of an eye, he will tell us that it never will exist. Mind you: Judge Friendly recognized the need for legal structure in this field before the advent of modern class actions, the emergence of an organized litigation industry, and migrating asbestos mass torts. To no one's surprise, the Court's repeated, desperate calls for Congress to clean up that "elephantine mess" have likewise gone unheeded.
I seriously doubt that any Congress, ever, had the ability to play the coordinating role that the modern Court's doctrines presuppose. I doubt, even more seriously, that the Founders expected Congress to be capable of playing that role. Be that as it may, though, the modern Congress most certainly lacks the judicially wished-for coordinating capacity. Congress is now a "universalist" institution, which is the political scientist way of saying: "I scratch your back, you scratch mine." Except under rare conditions, laws get enacted either near-unanimously (because everyone has been paid off) or else, not at all. Even the recent stimulus bill was passed only because it stimulated every Democratic interest, plus three Republicans.
A closely related phenomenon is the explosive growth and increased power of semi-autonomous governmental or quasi-governmental agencies. Products and profits disappear in hellhole jurisdictions; no one checks their exploitative tendencies. Entire industries are reorganized in multistate settlements under the auspices of the National Association of Attorneys General. Any AG in the country can unleash these proceedings; no one controls or coordinates them. No one really governs the agencies of the City of New York; most operate under open-ended judicial consent decrees. Despite much agitation, we do not have a reliable, knowable accounting regime for public corporations. Technically, those rules are the business of the Public Corporation Accountability Oversight Board, affectionately know as "Pekaboo," a wholly independent and nominally private body that combines rulemaking, prosecutorial, and for good measure taxing powers. But Pekaboo insists that it is only an "inferior" bit player and doing what it is being told. Told by whom? By the SEC, another independent body. By congressional subcommittees. Or maybe by Arthur Levitt.
Is any of this going to change? Why, yes: it will go from bad to much worse. James Madison proffered a sophisticated theory why Congress would be capable of enacting public-regarding laws, as opposed to factional dross. The central premise, though, was what Madison called "distance" between the electorate and the legislators. We now call that "agency slack," and the fact is that there isn't any. Every Congressman and Senator is perfectly monitored by his or her constituent interests. Coordination cannot happen because it requires mutual concessions, which no legislator can make. Similarly, the proliferation of functionally differentiated, semi-autonomous government organizations is an irreversible by-product of economic modernization and political democratization. "Democracy"--in the anarchic sense of interest group politics and institutional fragmentation--isn't the answer to our problems. It is their cause. A responsible constitutional jurisprudence would reflect that fact. It would re-commit the Court to its principal constitutional task: supply structure.
Part VI
In urging that re-commitment, I do not suggest that federal judges act as a National Review in robes--standing athwart history, and yelling "stop." The point of institutional design, constitutional norms, and grants of judicial power is not to arrest or reverse the course of history. The point is to bound the equilibrium outcomes and to intervene when we can be confident that intervention translates into improvement, on a constitutional margin. Think of antitrust law as an analogy: No one believes that the courts are the first line of defense against anti-competitive conduct. No one believes that they should superintend private arrangements on an on-going basis. But we do not on that account discard judicially enforced rules against naked cartels. Nor do we simply say, "Let Congress provide." The Supreme Court has been quite willing to cultivate and coordinate this field on its own.
If I were inclined to sarcasm and point-scoring, I would note that antitrust law supplies a coordinating function because it is a pristine form of federal common law--the very thing that Erie Railroad supposedly prohibits. Since I am so inclined, I do so note. But the analogy carries further. In antitrust law, courts generally trust economic competition but intervene when conspiracies are clearly afoot. We should adopt the same approach with respect to constitutional law and political markets.
Competition as a constitutional principle separates political pathologies that, so to speak, come with the democratic territory (like congressional universalism) from those that are constitutionally suspect, or even prohibited outright. By way of example: one pro-competitive coordination rule of thumb is a baseline of exclusivity. If the FDA has been entrusted with regulating drug approval or the FTC, tobacco advertising, only the strongest evidence to the contrary should overcome the presumption that the authority is exclusive. In a characteristically brilliant essay, Richard Epstein and I have developed a workable doctrine along these lines under a catchy moniker: one problem, one sovereign.[10]
A close corollary is that joint exercises of public authority are inherently suspect. As it happens, an application of that principle is right there in the Constitution. Article I §10 categorically forbids states from making treaties with one another, or with foreign nations. And it forbids them from making any other "compact or agreement" without the consent of the Congress. Predictably, though, the Supreme Court has done with that "Compact Clause" what it has done with all other inconvenient structural provisions: it has read it out of the Constitution. In a 1978 case, the Court held that the states may do jointly whatever they may do individually, without congressional consent.[11] In other words, the Compact Clause forbids nothing that is not already illegal. On that supposed authority, the states in 1998 banded together with one another and with the major tobacco producers to commit what my friend Jonathan Rauch has called "the constitutional crime of the century"--the imposition of a $250 billion tobacco excise tax that no legislator, state or federal, ever voted for. On that same authority, states have signed greenhouse gas compacts with each other, and with foreign nations, without congressional consent. In my estimation, federal courts should enjoin those arrangements. In so doing, they would re-impose on our faction-ridden politics structural constraints that are both badly needed and directly required by the Constitution.
So there is my program. I fear that it will leave many of you disappointed. I have no "Dirty Dozen" mega-precedents to overrule; no grand "presumption of liberty" that will bring the Constitution back from exile; no fifth justice on Injured Reserve whose activation will bring victory at last. A re-commitment to structure would mean cases without sex appeal, and mostly without sex. It would mean doctrines that only lawyers can comprehend and decisions that proceed in an incremental, common-law-like fashion, not by bold declarations. Structure courts aren't given to dramatic gestures, because gestures don't structure anything. In my estimation, that dial-down is actually a virtue: structural cases compel judges on all sides to argue like lawyers, as opposed to oracles or culture warriors. I do concede that my program lacks the inspiring, constituency-building appeal of an originalist "no more rights" program, or for that matter a libertarian "more of our rights" program. Those programs, however, would leave the pathologies of our politics unchecked. A structure court would attend to them.
The hard question is how far it could get. That is primarily a question not of legal doctrine, but of politics. Seemingly arcane structural doctrines can be and have been every bit as controversial and ideological as, say, abortion. The Fuller Court's diversity jurisprudence and general common law were targets of relentless attacks and agitation long before Lochner, and they remained its targets long afterward. Whose attacks? Politically, state governments and their protectionist hangers-on, such as the Butchers Protective Association. An assortment of what we now call "public interest groups," such as prohibitionists. And, of course, trial lawyers. Intellectually, the law faculties at Harvard, Yale, and Columbia. The Court's course, they all chirped, thwarted democracy and democratic aspirations.
What protected the Court and its jurisdiction against that assault? Answer, business, and the Republican Party. Back then, the GOP had the good sense of not having a legislative program at all, knowing full well that any program would fragment its electoral base. Instead, the GOP defended the Supreme Court's diversity jurisdiction against constant attack in Congress; appointed and confirmed justices who would exercise it; and dissipated the proceeds of the tariff to its friends. The permanent Republican majority of those decades rested on a simple formula: judicial ordering; tariffs; earmarks all the way.
That political context illustrates my final brief points. One, constitutional understanding is not simply a matter of having the "right" fifth justice. A structure court presumes, or will have to create, a politics that creates room for that role. Two, a judicial re-commitment to structure and coordination would be an intensely ideological affair. A judicial supply of structure translates into a competitive, disciplined politics. Judicial abdication at that front translates into a "democracy" where any faction enjoys the "active liberty" of occupying some institutional bastion any day of the week, and where the only secure expectation is permanent instability. That was the choice before the Fuller Court. It is our choice today. Whose side are you on?
Our current constitutional debate evades that question. The contestants fight about rights--that is to say, external barriers to a politics that all presume to be an unstructured mess, a factional grabfest, beyond judicial purview. That is not my answer. My answer is James Madison's. He had a word for an unconstrained politics: he called it anarchy, "as in a state of nature."[12] We have a constitutional structure calculated to forestall that result. If the Court will not enforce that structure, I'll join the juristocracy chorus after all: Give me my rights.
Michael S. Greve is the John G. Searle Scholar at AEI.
Notes
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