Tag Archives: National Review

Freedom Under Law

Last night the Senate failed to advance an extension of the Patriot Act’s Section 215. Rand Paul objected to Mitch McConnell’s efforts at passing any short-term extensions and suddenly it looks like the legal authority for the Patriot Act’s phone metadata collection program may actually expire June 1st.

“There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer. That time is now, and I will not let the Patriot Act, the most unpatriotic of acts, go unchallenged.”

So said Rand Paul at the outset of his 11 hour pseudo filibuster on Wednesday, and it’s hard not to be moved by the language. If there is a quality I admire most about the Senator from Kentucky it is his maniacal obsession with restoring checks and balances to our government. In order to have any success at reining in executive power the public must first agree with the premise on which the reform rests. If you’ve paid attention to Paul in the Senate you know the thread that runs through his speeches and through his marathon performances on the Senate floor is the separation of powers. Drones and NSA spying were not background concerns per se, but neither were they the true focus of the filibusters. At root is a fundamental objection with the flagrant expansion of executive power under every administration since World War II, but especially since 9/11.

Why are separation of powers so important? To hear Paul tell it, the sanctity of divvied powers was eloquently championed by French philosopher Montesquieu, who warned how tyranny would ensue whenever the executive moved to legislate. Likewise, separating the judicial branch from both executive and legislative was imperative for the security of habeus corpus and other natural liberties. Embedded in small government philosophy is a staunch suspicion of planning and expertise, a wariness born during The Enlightenment and which reflected the conflict between the regal old guards and the new class of individual-minded bourgeoisie. For eons the word of the state was the final word on society; decrees from on high carried down to the masses for them to follow. However, the individual conscience rights that began taking shape in the Middle Ages became more widely disseminated during the Renaissance and Enlightenment. With the expansion of knowledge and individual agency the feudal system gradually gave rise to market economies fueled by spontaneous order. The consequent loss of power and influence for the aristocracy was a product of capitalism providing the vehicle for political participation by ordinary folk. Schumpeter’s insight that “the princess was always able to wear silk stockings, but it took capitalism to put them within reach of the shop girl” put the lie to the Marxist conceit that free enterprise would destroy the middle class. Voluntary exchange under a legal framework that respects the individual and cherishes his right to profit from his own labor is what created the middle class.

As the Western world moved methodically toward social appreciation for the citizen’s sovereignty over the state, the question of democracy became crucial: how to organize a free society of, by and for the people when for so long power and authority were hereditary and monarchical? Fortunately the British and ultimately the Americans did not need cast about in search of a guiding principle. We already got one and it’s called Magna Carta. The great charter signed at Runnymede marks its 800th anniversary this year and yet remains relevant as ever. Habeus corpus, jury trials, property rights and a common law that precedes and preempts man-made law; these natural rights discovered by our English forebears provided the blueprint for the individual based free society. They also declared for the first time in history real restrictions on the power of the state or king, which would prove a launching point for our founders as they set to establishing a government that would pit ambition against ambition as a means of separating and counterbalancing the powers of the state. The best encapsulation of this radical vision for upending centuries of authoritarian rule is inscribed on the monument commemorating Magna Carta: “freedom under law.”

Freedom under law is what the entire debate over NSA and executive power overreach is all about. National security state defenders will often say there’s no evidence of abuse currently and besides, don’t you want to be safe? But that is not the point. The point of a freedom secured by law is that the law is the law, and it is supreme. John Adams said we strove to institute a “government of laws, not men.” When executive authority runs afoul of the law it is supposed to be a big deal. When successive administrations of different parties expand executive power to the degree that natural rights are abused, it is supposed to be a huge deal. But in the name of fighting terror and keeping the country safe the Bush and Obama administrations have treated the 4th amendment like so much garbage.

In attempting to take Rand Paul to task Andrew McCarthy of National Review runs the gamut of talking points before insisting that “the depiction of national-security agents who are trying to protect American lives as seventies-style rogues tearing the Constitution to bits is a smear.” But Paul is not doing that; instead he is arguing that the Patriot Act and its especially problematic provisions open the door for abuse at any time. It may not be now, or in the next administration or the next but the point of freedom under law is that we eliminate this risk altogether by forcing fallible men and women to swear oaths to uphold and defend the Constitution. The founders were explicit about making the law supreme and they further divided power to guard against the transient passions and fears that inevitably come to challenge man and his commitment to law. As challenging and daunting as it is, the jihadist threat of modern times is exactly the kind of passionate, fearful moment in time the founders knew would inevitably materialize. If they knew that only two hundred some odd years later American political discourse would include such penetrating insights as Chris Christie’s you can’t enjoy your civil rights from a coffin, they would have folded up shop and abandoned the revolutionary project full stop.

The Patriot Act is what happens when laws are passed out of fear instead of sober deliberation. Freedom under law was always meant to keep that from happening, like the abstract, intangible version of standing athwart history yelling stop. The founders knew too well the propensity of man to govern arbitrarily; thus the principle aim of the new republic was to build a system that takes arbitrary and consolidated power out of the equation and lifts the Constitution up as the final arbiter on what government can do.

Hillaryious

katemckinnon

I will not be inclined to find any of this funny should Mrs. Clinton become President, as that is the day laughter dies. But until then, and because I don’t think it possible for a vapid cipher of nothingness to con Americans into making her Queen, The Hillary Clinton Experience is an uproarious one.

The Washington Post saw fit to run a countdown clock on its website to mark the time since Hillary last took questions from the press (40,150 minutes between Q&A’s for those keeping score). Kate McKinnon has committed her considerable talent to what could perhaps become the best Saturday Night Live political caricature ever. But what makes this all such a riot is how the media is coping with it all, which is to say they don’t know how to deal with it. Should they cover her more aggressively and demand that she get involved in the daily give-and-take, if only to better prepare her for the general? Or should they adopt a satisfied detachment and remark on how savvy Clinton is to go this route considering her 100% name I.D. Right now they fall somewhere in the middle, with the more professional journalists angry at the situation and hungry to do their jobs versus the sycophants and hacks of cable news who will offer the same critique no matter what she does: “Bravo.”

It wouldn’t be this way if the Democratic Party were not so bereft of political talent and not married to a single candidate whose only virtues are her last name and gender. If Hillary had real competition the liberal press would be hounding her and demanding that she speak with the implicit message that there are other options and “we’ll spurn you in a second if you can’t convince us you’re the genuine article. We’ve done it before.”

Hubris and arrogance are not typically mined for their comedy, but man alive is Hillary funny in her entitlement. When Alex Seitz-Wald refers to your entourage as a “palace guard” on MSNBC, you might want to reexamine your methods. If I was a handler for a candidate whose sense of entitlement dwarfed her actual accomplishments, I would probably caution against her acting arrogant and above it all, especially when scandal threatens to follow you throughout. And of all the transparently self-serving no-no’s, the one that would sit at the top of my list would be Citizens United. I would say, “don’t talk about Citizens United.” All progressives loathe Citizens United v FEC but you know who really truly despises it? Hillary Clinton. That’s because the whole case was about her. Citizens United wanted to produce and air a critical documentary on Hillary Clinton in 2008, a fairly standard practice (Michael Moore, anyone?) and well within the law and of course protected under the First Amendment. But that is not how the left views speech these days. They wish to control the flow of money to campaigns by granting the FEC the power to regulate which political speech is kosher and which is not. Calling this a slippery slope is like calling the Grand Canyon a hole in the ground. They screech in terror about billionaires and disclosure and “dark money” when in reality they are saying that bureaucrats at the FEC should set the landscape for political giving. If a federal agency has the power to declare movies and books critical of politicians invalid then it is game over for the First Amendment. And I get that progressives move closer everyday to making repeal part of the DNC platform, but Hillary? Citizens United went to the Supreme Court because Hillary Clinton was unhappy about a movie made about Hillary Clinton. The Supreme Court said the First Amendment still stands and therefore it is well within the freedom of a corporation to make whatever damn political movie it pleases. Naturally, this does not sit well with Hillary and the left, but if anyone should be recused from criticizing Citizens United it is Hillary Clinton. That she went right ahead decrying big money in politics anyway (she who made $30 million in 2014 by giving speeches) shows the level of hubris and entitlement at play. Matt Welch looks at this and sees a “wonderfully clarifying campaign slogan for you: Elect me, and I’ll try to put my critics in jail!”

On CNN Jeff Zeleny offered that “this criticism was threatening to overtake her message” as he reported on the earth-shattering news that Hillary did in fact take questions from the press on Tuesday (five questions). The pros who want to do their jobs are beginning to chafe at Her Highness’ indifference to them. Jonah Goldberg suspects it may be time for the press to start punishing her.

Normally, when a politician tries to break the media’s food bowl, the media defends itself. Instead, I keep watching broadcasts that treat her gingerly. Sure, they mention how she isn’t taking questions. But they also say things like “Clinton took questions from voters” and “Clinton met with small businessmen to talk about the economy” and then they let her get her soundbites in. I can see the case, as a matter of journalistic ethics, for letting her get her message out. Though such ethics are often selectively applied to Republicans the press hates.

But why peddle the fiction that she is having authentic conversations with Iowans? When President Bush was selective about who he took questions from, the press ate him alive for it.

And Bush was far more open to the press than Hillary’s being (and he was the president). And Hillary is running unopposed which makes the press’s role much more important. Why not err on the side of the truth, particularly when the truth hurts? Every meeting with pre-selected human props should be described that way. Every “event” should be reported in hostile — and more accurate! — terms. “Mrs. Clinton held another scripted and staged event today where volunteers asked pre-arranged safe questions the scandal-plagued candidate was prepared to answer . . .”

I understand the press is liberal, but they also have a very high opinion of themselves. The Clinton campaign is making fools of them. It’s time for some payback.

One can dream.

Like Clockwork

Rand Paul penned an op-ed in The Daily Beast on Monday that lays out his overarching critique of expansive government. For Paul, the most egregious sins of the past two administrations involve the reckless expansion of executive power. For the founders, the separation of powers and the checks and balances that maintain them were arguably the most important paradigm for representative government. They were surely the most sacred. Though a man of sweeping intellect and depth, James Madison left a singular legacy in his dogged advocacy for diffuse, separate and opposed factions across government; federal, state and local.

That legacy served conservatives (Jeffersonian Democrats, Whigs, Republicans) well until the end of World War II, when a new internationalism emerged with Dwight Eisenhower’s triumph over Senator Robert Taft in the race to define the future of the Republican Party. Since then, it has been a festival of bipartisan abuses of executive power and expansion, as Taft’s defeat meant the end of any meaningful right wing foreign policy based on realism and restraint. It is not wholly outrageous that the spectre of the menacing USSR caused Americans of all stripes to adopt a utilitarian approach to the Cold War, ditching principle and tradition in the name of security from existential annihilation. After 70 years of this approach, is it not sensible to reflect and consider an alternative strategy?

Every time Rand Paul attempts to enunciate his foreign policy, one or two neoconservatives affiliated or aligned with the last Bush administration lashes out with a vicious, often unhinged diatribe against the Senator and his supposed “isolationism.” That Jennifer Rubin is Queen of The Demagogues, let there be no doubt. But Michael Gerson, Pete Wehner, Bill Kristol, Bret Stephens, David Frum, Stephen Hayes, Jonathan Tobin, David Adesnik and Elliott Abrams (and more!) also love to fling “isolationism” around with the same justification that progressives have when shouting “science!” No Valerie Jarrett style enemies’ lists here, just an objective identification of the culprits behind what is an orchestrated, dishonest smear campaign against someone with whom they disagree. That kind of behavior deserves to be called out and evidence is easy to find because, like clockwork, a new hit piece is guaranteed almost every day.

Today’s entry comes from John Yoo, the lead legal apologist for every last ounce of executive abuse and expansion undertaken by President Bush, where he says “Congress enacted in 2001 an authorization to use force against any group connected to those who carried out the 9/11 attacks. If the Islamic State is linked to the al-Qaeda terrorist network, as it appears to be (though this depends on the facts), they fall within the AUMF.” He goes on to belittle Paul and suggest he should remain in the Senate and should never be President. The tone of the piece is desperate and angry. The substance is even worse. Is anyone else flabbergasted that we have an impenetrable elite bipartisan consensus in Washington surrounding the AUMF’s authorization of force? The document from thirteen years ago which had nothing to do with third-generation offshoots of Al Qaeda but actually and explicitly only pertained to… Al Qaeda?  I really shake my head when I read the WSJ or some other reputable conservative outlet make this case; that the resolution we passed in the wake of 9/11 somehow relates to today. I understand their argument about asymmetric warfare and how “we don’t get to decide” when the war is over and all that. Yes, yes. But it is categorically not too much to ask that we fight this interminably long war by adhering to our standards and our rules. And I don’t care how Orwellian the foreign policy fetishists on the right go in their zeal to convince me that 2+2 = 5, I can never be convinced that Article II of the Constitution is more important than Article I.

The looming big debate over foreign policy will be a lot more productive and enlightening if it is conducted with civility and forthrightness. Unfortunately, the opponents of any reevaluation of the status quo have signaled that they have zero intention to play nice with Rand Paul. They genuinely hate his father, and are projecting their worst fever dream scenarios onto Rand and insisting all will be lost and the locusts shall plague us should the man who believes in the Constitution and separation of powers come to be Commander-in-Chief.

Below is my response to John Yoo and his fellow travelers in the conservative movement, based on an advanced reading of George Will’s column tomorrow, which I posted in the comments of his piece at National Review Online.


George Will has a column tomorrow (available online now) headlined “Rethinking US Foreign Policy” in which he tiptoes close to endorsing Rand Paul’s position without actually doing so. But he does offer this for Mr. Yoo to consider:

“The 2003 invasion of Iraq, the worst foreign policy decision in U.S. history, coincided with mission creep (“nation building”) in Afghanistan. Both strengthened what can be called the Republicans’ John Quincy Adams faction: “[America] goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own.”

The Wilsonian-Bush approach to foreign policy is past its sell-by date, and the level of unhinged vitriol spewing from establishment (mostly from the Bush cabinet) organs towards Rand Paul is evidence of this. Any wonder why the factions currently losing the argument screech and squeal the loudest? Just look at the progressive left right now. But the fervor with which the Bush people have tried to knock down Rand Paul (and have so far failed at every turn) speaks to how cornered they feel. They wish that everyone would shut up and be scared of Islamists to the point that we forget the follies of their agenda and just blame Obama enough that the Bush Boys over at Commentary get to waltz back into power like nothing’s changed.

There wasn’t supposed to be an articulate voice against the uber-interventionists while Obama was in office. To their eternal chagrin, Rand shows up and starts moving people and changing the debate. No doubt George Will gets some stern emails for having the gall to give Rand a hearing before writing him off based on lame, hysterical arguments such as Yoo’s.

On Mark Steyn and Free Speech

Michael Mann is a special kind of douchebag. No, not the awesome director of movies like Heat and Last of the Mohicans, but the climate scientist famous for his controversial and thoroughly discredited “hockey stick” graph, which purports to show a calamitous rise in global warming since 1900. Mann is the type of progressive who views the cause of “anthropogenic global warming” (AGW) through the kind of militant, silence-all-opposition lens of intolerance that is familiar to most on the eco-fascist left. He is simply not a proponent of free speech. After James Delingpole exposed the fraud of “climategate” in 2009 and the IPCC officially scrapped his hockey stick from their climate assessments in 2013, further scientific “consensus” stubbornly persisted in eluding Mann and his work. The man’s professional reputation had been greatly diminished, but it would be an affront to his tender sensibilities that re-animated Mann in the form of a defamation lawsuit.

Mark Steyn castigated the climate change fear-mongerer by suggesting he was not unlike Jerry Sandusky in his zeal to “torture and manipulate data.” While this may be untoward and unsophisticated, in no universe should it qualify as defamation. But in our world of perpetual grievance where any offensive speech is seen as grounds for retribution, and where any blithe reference to word “fraud” is taken as a coordinated attempt to remove one from his profression, it is no surprise that Mann is suing Steyn, National Review and the Competitive Enterprise Institute on defamation grounds, on the presumed basis that Mann’s reputation as an esteemed man of science is so fragile and threatened by words that his career is must be at stake, or something.

This is all a bunch of nonsense of course, however, so far the courts have seen fit to deny multiple motions to dismiss, and so the suit proceeds apace. As Steyn has often mentioned, the point of these lawsuits is never about the result but about the heavy burden placed on defendants and their financial resources. Mann and his cohort are rabidly intolerant of any dissent and their aim here is twofold: first, potentially put the leading conservative opinion journal in the country out of business and second, broadcast an unmistakable warning to anyone who would consider challenging climate change orthodoxy going forward. If you think I am kidding or engaging in hyperbole, I invite you to scan the comments of this ThinkProgress article and answer me why it is leftists are so enthusiastic about silencing, censoring, or otherwise intimidating speech they think is offensive, dangerous, or just plain wrong? And they do not seek to use persuasion or societal shaming, but only force (i.e. government) to shut up the dissenters. And they have the audacity to call us fascists?

I have no doubt that Mark Steyn and his co-defendant organizations will ultimately prevail in court, but the fact that they must bear the financial cost to do so because of nothing more than a journalist’s criticism of a professional’s (discredited) work is outrageous. Free speech should be absolute, and thankfully we have such fearless and committed free speech absolutists as Mark Steyn.