Andrew C. McCarthy's Blog, page 71

One Little Thing about That Speech, Mr. President

Obama has made the prosecutors' work just a little harder.

Before giving a much-anticipated speech in which he would lavish attention on the smallest details of a horrific crime that is now the subject of his administration’s most closely watched federal prosecution, Pres. Barack Obama spent hours with his attorney general and trusted legal adviser, Eric Holder. Flying across the country together, preparing for their joint appearance at a University of Arizona memorial service (or was it a rock concert?), they had plenty of time to strategize about what he should say, to ensure that the speech would have no negative impact on the case.

What could go wrong?

#ad#Okay, okay, that’s not really fair. As it happens, the president gave a superb speech, the best of his presidency -- though it wasn’t the gem  the awed punditocracy seemed to think it was. Mr. Obama is graded on a generous curve whenever he comes within a ZIP code or two of doing the right thing, particularly by conservative pundits so anxious that America know they can rise above the riff-raff’s icky partisanship and give credit where credit is due.

The president, unwilling to give credit -- or place blame -- where it is due, opted for moral equivalence. Culpability for the poisoning of our discourse is, in his telling, shared by all of us. No need to mention that his lunatic base had spent days slandering conservative commentators as accomplices to murder and mayhem. Mr. Obama, moreover, still finds irresistible any opening to portray America as forever failing to live up to his lofty aspirations, rather than to embrace the greatness of the America that we have -- an America in which last weekend’s events are so shocking precisely because they are so rare, and where the survivors survived due to the heroism of ordinary citizens.

In the scheme of things, though, these are quibbles. So is the observation that the president’s graciousness made such an impression because he has so often lacked grace. For a few moving minutes, at least, he was the president we hoped he would be, wedding intelligence and empathy with his unparalleled delivery. This time, no police had “acted stupidly,” no Republicans were told “they can come for the ride, but they gotta sit in back,” and Jared Loughner’s atrocities were not spun as somehow George W. Bush’s fault.

That is not to say the scene was not disturbing. The raucous throng gave an ostensibly solemn ceremony the air of the Wellstone memorial. The Obamaphilic electioneering by the university president was nearly as off-putting as the self-absorbed weirdness of that Chicano Native American, there to remind the world of Arizona’s heartless racism (i.e., its citizens want the immigration laws enforced). When it came Obama’s time to soar, though, soar he did. Blessed by fortune to break the news that Rep. Gabrielle Giffords had opened her eyes for the first time since being shot, the president was uplifting and, at times, inspiring. The families of those killed and wounded were clearly comforted. The president could have done no better thing, and nobody could have done it better than he did.

But there was one slip up. In a fitting sketch of John Roll, the chief federal district judge slain in the shootings, President Obama extolled the judge’s dedication to the law, his devout Christianity, and his civic-mindedness. Underscoring that last virtue, Obama said Roll had stopped by the Tucson mall simply to say “hi” to his congresswoman, Representative Giffords. That shouldn’t be a problem, but it is. Unfortunately, this is not just a tragedy to be eulogized. It is also a case to be tried.

Murder is a state crime. There are only a few narrow situations in which it can be prosecuted federally. One is the killing of a federal officer. That status, though, is not enough to invoke federal jurisdiction. The Justice Department must be able to prove beyond a reasonable doubt that, at the moment of the murder, the victim officer was performing his official duties. A federal judge’s official duties do not include saying “hi” to his representative in Congress -- no more than doing so would be a part of your job.

#page#By contrast, urging one’s congresswoman to do something about an overworked district’s heavy caseload is a quintessential duty of the district’s chief judge. Witnesses who spoke with Chief Judge Roll at the mall that fateful Saturday say that, while the judge surely wanted to greet Representative Giffords, he also had an agenda to press: more resources for his court.

#ad#What it all means is that the administration screwed up -- not monumentally, but in a way that will make the job of federal prosecutors a bit harder than it should have been. While some Obama critics were quick to pounce, the president’s moving remarks about Judge Roll were not wrong, they were just incomplete -- a license Mr. Obama was certainly entitled to under the circumstances. There is nothing inconsistent about Judge Roll’s wanting to greet Representative Giffords and his simultaneous desire to press her regarding the burdens on his court. The full account amplifies the president, it doesn’t contradict him.

Hindsight is always 20/20, and it would have been much better if the president had said Judge Roll had “decided to stop by, say ‘hi’ to his representative, and speak with her about the needs of Arizona’s federal courts.” Putting it that way would not have detracted from Obama’s portrait of Roll’s civic-mindedness -- quite the opposite. And it would have avoided giving Loughner’s lawyers some grist for challenging the prosecution. Why this wasn’t done is a question best asked of Attorney General Holder. Presidential speeches are usually circulated among top administration officials before being delivered so that any potential problems are flagged. In this instance, the attorney general was with the president and is no doubt closely monitoring the Loughner case, including the charges filed last Monday. If what the president intended to say was going to be problematic for the prosecution, Mr. Holder should have seen that a fact-based tweak be made.

But these are the kinds of mistakes that happen in government, and anyplace else where there are not enough hours in the day to meet its demands. If I had a dime for my every unforced error that caused lots more work for me and other prosecutors, I could have retired in half the time and outbid Goldman for Facebook. This screw-up is not a hangin’ offense, and it would be plain silly to suggest that Obama’s speech badly damaged the government’s case.

No doubt, the defense will argue that the speech’s abridged version of events is the true one, and that, in order to shore up federal jurisdiction, prosecutors have fabricated an “official duties” purpose for Judge Roll’s meeting with Representative Giffords. This will get exactly nowhere. President Obama was not present at the relevant time and didn’t speak with the relevant participants -- he spoke with his speechwriters. From a legal perspective, his speech at the memorial service is inadmissible hearsay, probably five times removed. By contrast, the relevant participants spoke with Judge Roll on the scene and can give testimony, admissible under the hearsay rules, about why he was at the mall.

Significantly, the accounts of these witnesses were recorded for posterity in investigators’ reports four days before President Obama’s speech. Clearly, Judge Roll’s purpose to seek resources for his court was not manufactured to make Roll’s murder a federal case. So while the trial court should allow the defense the make its claim, the president’s speech is too flimsy a basis to permit a fishing expedition into the chain of communications that led him to say what he said. It shouldn’t require the prosecutors to do much more work than I just did to win that argument -- and they’re getting paid for it.

Finally, let’s pretend that Judge Roll really did just want to say “hi” and had no other agenda. Undeniably, that would be a problem for the government's case, but not because of anything President Obama said in his speech. It would be a problem because, in fact, Judge Roll would not have been carrying out his official duties. Due-process rules require prosecutors to disclose information that indicates the defendant is not guilty -- i.e., information that casts doubt on an offense element the government must prove. Thus, if our pretend version were true, the defense would have learned the information anyway. The speech would not have harmed the case in any way -- prosecutors are supposed to lose when the facts cut against them.

Presidents are ultimately responsible for their administration’s enforcement of the law. It is common sense that they should avoid saying things that prejudice criminal cases. In late 2009, pressing his ill-conceived campaign to endow alien enemy combatants with enhanced constitutional protections, President Obama proclaimed that 9/11 architect Khalid Sheikh Mohammed would be “convicted” and given “the death penalty” at a civilian trial. That was a reckless thing to say, particularly for a Harvard-educated lawyer who later lectured on constitutional principles at a prominent law school. The KSM statement, made for purely political reasons, appeared to render a presidential judgment about the case. It risked tainting the jury pool and denying defendants exactly the rigorously fair trial that was the stated reason for using civilian courts in the first place. It wasn’t a fatal misstep -- more work for prosecutors, yes, but nothing they couldn’t overcome. It was, however, amateur hour.

The president’s speech in Arizona was anything but. It didn’t violate anyone’s rights. It was well done, and for a high civic purpose. The laudatory remembrance of Chief Judge Roll was deserved and appropriate. That it could have been done with slightly more attention to the legal ramifications is a point, but a very small-minded one.

—  Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

Andrew C. McCarthy

Sheikh Yusuf Qaradawi Should Be Radioactive

So explains Claire Berlinski in an eye-opening post at Riccochet on why the Muslim Brotherhood should matter to us. As Claire puts it:

I've made the case that the spiritual leader of the Brotherhood, Qaradawi, is a particularly vile figure. What I've noted about him should be well-known by every American of voting age, just as it is well-known by every American that Osama bin Laden is a vile figure. Qaradawi is not the whole of the story, but he's enough of the story that his name should be politically radioactive. His name and face should be instantly recognizable--part of our pop-culture discourse, synonymous with "something creepy, dangerous and repulsive." He should be the subject of jokes on late-night comedy shows. If photos turn up in the news showing one of our allies or political advisors with his arm around Qaradawi, it should have the psychological effect of seeing the subject of that photo in full Nazi regalia. Yet how many Americans would even recognize his face? Not many, I suspect.

Not many is right. And she's right to be worried about that.

Andrew C. McCarthy

Sheriff Dupnik's Irresponsibility, Case in Point

Notice this exchange from Sheriff Dupnik's interview by Katie Couric (the one K-Lo cited earlier):

Couric: But some people would say you are overly-politicizing this situation. That it appears at this juncture, although it's unclear, that this was a lone, deranged individual that might not have been inspired to do this at all for political reasons.

Dupnik: We'll never know the answer to that because there's no way to get into the heart and soul of a person to find out what their true motive is. And second of all, we're dealing with a very troubled personality.

One needn't be an experienced law-enforcement type to know two obvious things at this point:

(1) It is common for the state to prove motive in a criminal case, particularly a homicide case that requires proof beyond a reasonable doubt of specific intent to kill. Evidence of motive is not required, but prosecutors almost always try to prove it because juries want to be confident, before convicting someone of a serious crime, that they know why the defendant acted. And

(2) Loughner's counsel will almost certainly go with an insanity defense, since there seems to be no other possible defense. That is, the case will be all about the operation of his mind: motive, intent, and capacity.

Insanity defenses try to suggest to juries that the defendant was so delusional he could not form cogent thoughts. Motive evidence can be powerful rebuttal. If there was a logic to why Loughner chose Rep. Giffords as a target -- e.g., political positions she took that offended him -- it could be critical to the prosecution's ability to prove that he acted with criminal intent, to prove that his acts, while horrific, were purposeful. A juror doesn't have to agree with a murderer's motive in order to conclude that the murderer did have a motive that was tied to reality and was acting out of evil intent rather than out of a disconnection from reason. This could be the difference between conviction and a verdict of not guilty by reason of insanity.

While I'm sure we're all very impressed with Sheriff Dupnik's thoughtful views on gun policy and right-wingers, his day job is law enforcement. A large element of that job is to maximize the chances that the guilty will be convicted (to say nothing of the duty to avoid prejudicing the jury pool). How does it help matters for him to be telling the media that, in his vast experience as an investigator, he has learned that we can never really know what motivates people to act? That motive evidence is sheer speculation? That in his opinion, Loughner is "a very troubled personality" -- a statement that will surely be used by the defense to argue that even those running the investigation concluded that the defendant was insane?

If Loughner was non compos mentis, it will be his counsel's job to establish that, and she will be given every opportunity to do so under criminal due process rules -- rules that are especially generous in capital cases. Sheriff's Dupnik's role at this point is to keep his mouth shut and collect evidence, not run off at the mouth for the benefit of the defense. We shouldn't be hearing anything from him unless and until charges are filed, and even then his comments should be limited to what is in the public record. If he wants to be a pundit, he ought to resign from law enforcement and go be a pundit.

Andrew C. McCarthy

Re: Thank you for not packing heat

Cliff, I am a Pete King fan, but I have to part company with him on this one. I am not insensitive to his concerns -- I was a "public servant" for over 20 years, and my family and I had to have a protective detail for a chunk of that time. The detail was due to a specific, credible threat. When there is such a threat, or even a less concrete threat, public officials get protection, as they should.

But let's bear in mind four things. First, in our system, gun possession is constitutionally protected activity. Second, the vast majority of gun-owners in our country are law-abiding American citizens, and there is abundant reason to think that they actually make things safer.

Third, what we commonly call public servants are actually public representatives. Although they should "serve," many of them are in politics to aggrandize themselves at our expense. Regardless of that, though, their actual job is to be our voice in government. Rep. King's proposal would put another barrier between law-abiding American citizens and the elected officials who represent those citizens. The suggestion is that law-abiding Americans should be put to a choice between their right to petition government and their right to bear arms. In any other context but the Second Amendment, I daresay that requiring Americans to forfeit one right in order to exercise another would be rejected out of hand as unconstitutional.

Fourth, and finally, the people who would be a threat to our political representatives, like the people who might be a threat to me, are not law-abiding Americans. They are enemy operatives, criminals, or the mentally disturbed. As to the former, once you have crossed the Rubicon of plotting murder, you are not going to be backed up by a law that criminalizes carrying a weapon within a certain distance of your target. For the latter, the laws don't matter.

That is, Rep. King's proposal penalizes only the law-abiding, in a way that affects their fundamental rights, without having any effect on the people he is actually worried about -- assassins and the deranged. I don't think Americans should have to tolerate a situation in which their rights are circumscribed, through no fault of their own, by society's lowest common denominator.

If one is really a public servant, threats come with the territory -- which is why real service is so admirable. Fortunately, we have had very, very few instances in which public officials have been attacked. And I strongly suspect you will not see political officials resigning, or aspiring public officials choosing not to seek office, because they sense that our current protections are inadequate. I know the U.S. attorney's offices have not had trouble finding prosecutors willing to do terrorism cases. 

As Christina Green's courageous grieving father observed, we are blessed to live in a free society, and the risk of terrible acts by bad or disturbed people is the price we pay. Of course if there are sensible ways to reduce risk, we should consider them. But if proposals don't materially reduce the risk, we should not adopt them, even if the proponent's heart is in the right place.

Andrew C. McCarthy

Sheriff Dupnik

K-Lo, you're right: law enforcement people are not supposed to do politics. There is some unavoidable policy-making that has to be done by sheriffs, police chiefs, district attorneys, etc. They have to decide, for example, how to allocate their finite resources, which means some kinds of crime are made high enforcement priorities, while others mightn't be prosecuted at all. That's a political choice, but it is very different from getting into the middle of -- or, in Sheriff Dupnik's case, stoking -- a political debate over an offense that is the subject of an ongoing investigation.

The investigator's job is to be as rigorously unaffected as possible by the public debate. You're not expected to be completely objective -- who could be objective about murder? But you have to tune out the noise and do your job, which is to figure out what happened and how to prove it convincingly. We don't want law-enforcement people weighing in with their opinions about the case for the same reason that jurors get told to keep their thoughts to themselves until deliberations. Once you express an opinion, you have a natural interest in not being proved wrong.

That interest can affect and taint your fact-finding -- and even if it doesn't actually affect your fact-finding, there will be a public perception that it might have affected your fact-finding, which undermines the integrity of the investigation and eventual trial. That's why the legal standard for recusal of a lawyer or judge from a case is "the appearance of impropriety." As a society, we accept the legitimacy of rulings by our legal system because we believe they are fact-based, not the result of bias. If a law-enforcement officer's biases appear to be affecting the process, the process is not legitimate -- regardless of whether it happens to produce accurate results.

Andrew C. McCarthy

A Horrid Crime, a Dishonest Debate

The same Left that embraces terrorist Bill Ayers seeks a tactical victory in Tucson.

On June 5, 1968, a deranged 25-year-old Jordanian named Sirhan Sirhan slithered through a crowd toward Sen. Robert Kennedy as the Democratic presidential candidate basked in the glow of his California presidential primary triumph. Sirhan shot and killed Kennedy,  wounding several others. The ensuing investigation showed that Sirhan was a raging anti-Semite who’d become fixated on Senator Kennedy because of the latter’s support for Israel.

#ad#Two people profoundly impressed by the assassination were the terrorists Bill Ayers and Bernardine Dohrn. In 1974, they dedicated their own communist manifesto, Prairie Fire, to Sirhan, hailing him -- among a cast of violent radicals -- as a courageous political prisoner. In the book itself, they and the rest of the Weathermen went on to identify themselves proudly as “communist women and communist men underground in the United States” who were determined to lead a violent leftist revolution -- a “fight [to] seize power and build the new society.” Their rhetoric, their heedless dehumanization of those they maligned as ideological “enemies,” was coupled with acts of horrific violence, including a plot to mass-murder U.S. soldiers in Fort Dix,  a plot that went awry when the nail bomb accidentally exploded during construction, killing some of the terrorists.

This history is one the modern Left, in which Ayers and Dohrn remain icons, would rather you’d forget today. Today, instead, is for politicizing the wanton savagery of another deranged radical, 22-year-old Jared Lee Loughner, who stunned the nation by slithering through a Tucson crowd and unleashing a 31-shot fusillade, gravely wounding his primary target, Democratic Rep. Gabrielle Giffords of Arizona. In the spree, Loughner also killed six people: nine-year-old Christina Green; three elderly Arizonans, Dorothy Morris, Dorwin Stoddard, and Phyllis Schneck; John M. Roll, Arizona’s chief federal district judge; and Gabriel Zimmerman, an aide to Representative Giffords. Two other legislative aides, Pamela Simon and Ron Barber, were wounded.

Already, we have learned a great deal about the assassin. He is a deeply disturbed pot-head. In order to give meaning to the addling emptiness of his life, he turned to the anti-Semitic rants of Adolph Hitler, Marx’s Communist Manifesto, the occult, and what appears to have been an obsession with Representative Giffords, a Jewish congresswoman and supporter of Israel. Some acquaintances and schoolmates who’d endured his tirades over the years predicted he’d come to an end just like this.

Nevertheless, the instantaneous reaction of the hard Left, President Obama’s base, was to politicize the Tucson atrocity as a natural, an inevitable, result of conservative ideology, enthusiasm for immigration-law enforcement and gun ownership by law-abiding Americans, and dissent from Obama’s policies -- Giffords, a centrist Democrat (indeed, a former Republican) having supported Obamacare and amnesty for illegal aliens.

#page#The atrocity has called on us to indulge a double fantasy. First, that it is worth the time and effort to engage Obama’s base in a debate about the root cause of the shootings, and specifically about whether what the Left frames as an atmosphere of toxic rhetoric (translation: the Tea Party, talk radio, and Fox News) is to blame. Second, that without such a debate, we wouldn’t and couldn’t know why this atrocity happened.

#ad#To grasp the absurdity of the first point, one need only remember the reaction to terrorist attacks by two jihadists: Maj. Nidal Hassan, who killed 13 people and wounded numerous others in the Fort Hood massacre, and Umar Farouk Abdulmutallab, who tried to explode a plane over Detroit on Christmas Day 2009. There could not have been a more committed effort to deny that Islamist ideology and its hateful rhetoric had anything whatsoever to do with these events.

Very simply: The Left likes Islam and sympathizes with the Islamist critique of America, while it seethes with contempt for the likes of Sarah Palin, Rush Limbaugh, and any person or institution that can serve as a symbol of conservatism or bourgeois American life. Consequently, any heinous act that can be contorted, however counterfactually, into a condemnation of the Right will be exploited for that purpose. Conversely, there is to be quick rationalization for, and then studious suppression of, any shameful episode that is too clearly traceable to a leftist cause célèbre -- Islam, a movie pining for George W. Bush’s assassination, ghoulish wishes that Clarence Thomas or Dick Cheney will meet swift and painful deaths, or Senate Democrats’ comparing U.S. troops to Nazis, Soviets, Pol Pot, or terrorists.

There is no point debating any of this. Two years ago, we were still being told dissent was the highest form of patriotism; now it’s the root cause of murderous rampage. Modern leftists are tacticians. They’ve convinced themselves of the rightness of their cause, obviating the need to be consistent or faithful to facts in any single episode. For them, it’s all about how the episode can be spun to help the cause. That’s worth understanding, but not debating.

Second, can we forget that Bill Ayers and Bernardine Dohrn’s atrocities transformed them into icons of the modern Left -- respected “educators” still passionate about “social justice”? Barack Obama didn’t say, “I’ll have nothing to do with unrepentant terrorists who dedicate books to deranged assassins.” He chose to hold his political coming-out party in their living room and cultivated relationships with them, just as he cultivated a relationship with other hate-mongering radicals.

It is as stupid to claim that rhetoric causes violence as it is to claim that normal people can be entrapped into terrorism. What vitriolic thing would someone need to say to you, whether the vitriol could be cast as right-wing or left-wing, that would get you to pick up a gun and start spraying bullets at people with whom you disagreed, however vigorously, about some political or social issue? It wouldn’t happen. It couldn’t happen.

If wanton violence has a cause other than mental illness, it is a culture that lionizes the savages. That culture is not the culture of the Tea Partiers so despised by the Left. Many Tea Partiers are part of what until recently was called “the Christian Right,” an amorphous group of Americans, not all of whom are actually Christians, tied together by their shared acceptance of basic Judeo-Christian principles, such as equality and the sanctity of life (even the lives of their ideological opponents). They love liberty, because in their hands it is guided by virtue. It leads to the good life and the good society, not to dissipation and anarchy. Many of them pray for President Obama despite their revulsion at most of his policies. All of them consider him their president and would rally behind him if the good of the nation demanded it. Their dissent does not diminish their patriotism.

For our opinion elites, though, they are a punch line or, when disaster strikes, a punching bag. Those elites scoff at the very idea of real, knowable virtue -- unless it is rhetorically useful in showing that America has failed to measure up. They would erase any traditional understanding of virtue from public life, replacing it with their vapid “values.” Under these, the young learn, a terrorist can still be a hero if he kills for noble reasons, if it becomes fashionable to deny the humanity of those he takes as his enemies.

And then we wonder at the depravity of the next atrocity.

—  Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

Andrew C. McCarthy

Federal Charges in the Shootings

The Times has posted the criminal complaint filed by the U.S. attorney's office in Arizona. It charges two counts of murdering, and three counts of attempting to murder, federal officials. Specifically, Count One alleges the attempted murder of Rep. Gabrielle Giffords; Counts Two and Three allege the murders of legislative aide Gabriel Zimmerman and chief federal judge John M. Roll, respectively; and Counts Four and Five allege the attempted murders of legislative aides Pamela Simon and Ron Barber, respectively.

The criminal complaint is not an indictment. It is a notice to the defense of the basis for the arrest of Jared Lee Loughner and an explanation of the probable cause for those crimes. Ordinarily, the complaint is also grist for a bail hearing, but with charges of this gravity it is inconceivable that Loughner would be granted bail. Federal law permits pretrial detention for an arrestee the court finds to be a danger to the community, a flight risk, or both.

If a defendant is detained pretrial, the government usually seeks an indictment from a grand jury within 10 days of the arrest (excluding weekend days). That is because federal rules otherwise require that prosecutors submit to a preliminary hearing, an adversarial proceeding before a magistrate-judge in which the defense gets to cross-examine witnesses. The Justice Department likes to avoid this, for obvious good reasons.

Federal murder, a charge available when a government official has been killed in the course of performing official duties (see Title 18, U.S. Code, sections 1111 and 1114), is potentially a capital offense. It is up to the Justice Department whether to seek death penalty charges from the grand jury. The maximum penalty for attempted murder under federal law is 20 years' imprisonment (section 1113).

I would expect that the State of Arizona will also file murder charges in connection with the killings of nine-year-old Christina Green and three other Arizonans, Dorothy Morris (who was 76 years old), Dorwin Stoddard (also 76), and Phyllis Schneck (79). The State may also file murder and attempted murder charges related to the victims whose shootings are the focus of the federal prosecution. Arizona has the death penalty so, again, those could be capital charges.

Two other legal points. First, there is no double jeopardy bar to successive federal and state prosecutions of the same murder. In our system, the United States and Arizona are considered separate sovereigns, and the "dual sovereignty doctrine" is a well established exception to the Fifth Amendment's proscription against multiple prosecutions for the same offense.

Second, when there has been an attack on a federal judge, it is common for other judges of the same court -- in this instance, it would be Arizona's federal district court -- to recuse themselves. A judge from out of the district is appointed to preside over the case. This is not a necessary precaution, but it is a prudent one. That is, a judge is not legally mandated to recuse him- or herself from a case just because he or she knew the victim; and if judges had to recuse themselves over any potential bias, no matter how slight or theoretical, you could then argue that every judge was tainted (i.e., even if the appointed judge from out of district did not know the murdered judge, the appointd judge is still a judge and thus his or her bias might theoretically be called into question, too). Still, recusal and out-of-district appointment is a good practice to follow, especially in a capital case, and I expect it will be followed here. Those who are philosophically opposed to capital punishment are wont to exploit any potential claim of unfairness -- I don't mean that as a dig against opposition to the death penalty, which is perfectly honorable; it's just a fact about litigation.

Andrew C. McCarthy

The Constitution Fetish

Progressives are hot for <i>Wickard v. Filburn</i>, not the Constitution.

Is there anything richer than a gaggle of smarmy progressives snickering at the conservative “Constitution fetish”? “Fetish” is the fashionable Left’s latest suggestive imagery turned talking point, a dig at the new Republican majority in the House, which began its session this week by reading the Constitution aloud. It’s as if Dracula were complaining about a crucifix fetish.

“Fetish,” like “tea-bagger,” slides easily off the tongues of the Big Thinkers who get their dithering law from Dalia Lithwick and their sophomoric style from Bill Maher. If there is no Obama to send a thrill up their legs, it takes an organic Constitution throbbing with active liberty to ring their chimes. The lifeless one read from the podium Thursday -- which must have been, like, a hundred years old or something -- leaves them limp.

#ad#If you really want to see what irrational arousal is like, though, get thee to the nearest faculty lounge or MSNBC set and hum a few bars of the Warren Court’s greatest hits. Like a hand reaching through the epistemological fog, you’d think Harry Blackmun’s impenetrable prose had been touched by Aphrodite herself. Sure, your average fetish-fixated tea-bagger may be satisfied by such humdrum fare as laying taxes, disciplining the Militia, and punishments cruel and unusual. But it took Blackmun’s exotic penumbras, the “Hippocratic Oath’s apparent rigidity,” and a touch of in utero “quickening” before the siren trio of Kennedy, O’Connor, and Souter were up to seducing New York Times editors and one-note feminists with their hypnotic “Sweet Mystery of Life.”

Explaining (sort of) why Blackmun’s iconic Roe v. Wade decision simply had to be preserved despite its void of support in law and logic, they wrote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” You’re telling me you think James Madison could compete with that?

“Existence” and “the universe” -- we have czars for those now, right? There are no czars in that stale old Constitution Republicans were reading. There’s also no health care, no TARP, no General Motors, no AIG; no Departments of Justice, Labor, Health, Human Services, Energy, Education, Agriculture, Urban Development, or Transportation; no FCC, FTC, SEC, ICC, FDIC, FAA, FHA, or FEMA; no Council of Economic Advisers, Economic Adjustment Office, Economic Development Administration, Economic Research Service, or Economics and Statistics Administration; no Community Oriented Policing Services; no Bureaus of Public Debt, Reclamation, Transportation Statistics, International Labor, or Immigration Services; no Administrations for Children and Families, Native Americans, International Development, Battle Monuments, Toxic Substances and Disease -- not even an Arthritis and Musculoskeletal Coordinating Committee or a Federal Interagency Committee for the Management of Noxious and Exotic Weeds (I kid you not).

#page#Now we’re talking limited government, Obama-style. No wonder the government has to keep borrowing -- how could we conceivably cut when existence needs regulating throughout the universe? Let Republicans have their precious Constitution, a relic written in ancient times by a white oppressor class. The Left’s got a real fetish: the rewritten Constitution, courtesy of the Supreme Court.

#ad#And would that it were just a fetish. In 2005, the justices sparked public outrage by ruling that government kleptocrats could seize private property in order to increase the tax haul -- er, I mean, for sustainable community development. Was this really an appropriate invocation of eminent domain? Shouldn’t the people’s representatives rein in this blatant judicial overreach? Once and future minority leader Nancy Pelosi was astonished at such impertinent questions. “It is a decision of the Supreme Court,” she harrumphed. “It is almost as if God has spoken.”

For the progressive, everything evolves except their cherished, lawless Supreme Court precedents. The GOP fetishists will just have to deal with the reality that what the Constitution meant yesterday and still says today will be gnarled into something very different tomorrow. That’s how it goes with the “evolving standards of decency that mark the progress of a maturing society.” When progress is marked by the art of Chris Ofili, gangsta rap, and the statesmanship of Al Franken, should we really be surprised when, say, “nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws” somehow becomes a license for preferences based on race, ethnicity, gender, religion, or whatever bloc the divide-and-conquer Left decides needs cuddling?

The Constitution can be twisted to mean whatever progressives want it to mean. But once the twisting is done, progress grinds to a halt. At that point, the result is set in stone, forever -- as if God had spoken (the only reference to God you’re apt to hear). If the rickety foundation of Roe collapses under its own illogic, the sweet mystery of life will save it until enough new justices pass a “litmus test” that makes it unreviewable. If Congress tries to reverse Miranda, a Democratic administration will refuse to defend the statute in court -- even if it means a confessed bank robber gets to keep robbing banks. And don’t even think about touching a comma of Wickard v. Filburn. That’s the 1942 ruling that turned the Commerce Clause into a green light for government to control everything from noxious and exotic weeds to your relationship with your doctor (unless you want an abortion -- Roe’s still got you covered on that one).

“Liberty finds no refuge in a jurisprudence of doubt.” So pronounced the Casey court when it was clear that nothing short of sheer willfulness could save Roe’s invented right to abortion. Maybe if Democrats turn the tables in 2012, we’ll hear Debbie Wasserman Schultz read Casey to start the next Congress. What does the passage mean? Whatever the Left needs it to mean. Now that’s a fetish.

—  Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

Andrew C. McCarthy

While Rome Burns . . .

I confess to watching with grim amusement this kerfuffle over whether Republicans have already reneged on the vaunted promise -- in the vaunted Pledge -- to cut $100 billion in spending. Four thoughts:

1. Rep. Ryan is correct. The pertinent part of the Pledge reads: "With common-sense exceptions for seniors, veterans, and our troops, we will roll back government spending to pre-stimulus, pre-bailout levels, saving us at least $100 billion in the first year alone[.]" The promise was to roll back spending to 2008, and it was estimated at the time the promise was written -- based on President Obama's proposed 2011 budget -- that this would result in a saving of at least $100 billion (as Dan points out, more like $107 billion). But the core of promise is about slashing to 2008, not the exact amount of the resulting savings since that could not be known precisely at the time. The Pledge could have been clearer on that point, but that seems picky to me.

2. The $100 billion estimate (now more like $60 billion according to Rep. Ryan) was very unimpressive. If we assume for argument's sake a continuing resolution that would lock 2010 levels in for the whole fiscal year, federal spending that year was about $3.55 trillion. That is, Republicans were talking about shaving less than 1/35 of federal spending (less than 3 percent).

3. As Rep. Ryan has acknowledged, if we just take the deal Republicans overwhelmingly endorsed last month to extend the Bush tax rates to 2012, it includes a whopping $313 billion in new spending -- i.e., spending unrelated to extending the lower tax rates.

4. The stated goal here, 2008, was an example of out of control federal spending -- nearly $3 trillion in total expenditures, adding nearly $460 billion to the debt (without factoring in most unfunded liabilities).

Andrew C. McCarthy

Competing Visions In "Palestine"

There is the U.S. dream, shared by delirious diplomats of both parties: "Two states living side-by-side in peace." As Condi Rice told Cal Thomas “[Y]ou can look at any opinion poll in the Palestinian territories and 70 percent of the people will say they’re perfectly ready to live side by side with Israel because they just want to live in peace.”

Then there is reality. In point of fact, well over 70 percent of Palestinians deny Israel's right to exist -- and the figure jumps to 93 percent if we count only young adults of the optimum fighting age. John Hinderaker now provides another snapshot of reality at Powerline: video of young Palestinian school children being taught to prepare for a (short) life of murder and violent death.

Watch as they sing, "In the way of Allah we proceed, aspiring to raise the flag [of Islam]. May the glory of the religion return, and may our blood be shed." I guess that's what Obama terrorism guru John Brennan means when he says "jihad" is merely a "holy struggle ... to purify oneself or one's community." John Hinderaker is closer to the truth when he says of the Palestinians, "This is, by a wide margin, the sickest culture on Earth."

Andrew C. McCarthy