June 25, 2010 11:33AM

Why Involve a Public School?

In a New York Times story about a Hebrew language charter school -- a school the article  says has not "ventured into politically sensitive territory" -- First Amendment Center scholar Charles Haynes asks incredulously:

Israelis themselves have a hard time around the question of whether Israel is a Jewish state or a democracy. Why would we want to involve a public school here in that question?

I think I have a possible answer: Because private Hebrew schooling would require parents first to pay taxes for public schools they don't want, then a second time for the education they do.

I wonder what we could do to remedy the situation...

June 25, 2010 11:30AM

George Will Has Questions for Elena Kagan

George Will has some excellent questions for Supreme Court nominee Elena Kagan. 

Here's an excerpt:

The government having decided that Chrysler's survival is an urgent national necessity, could it decide that Cash for Clunkers is too indirect a subsidy and instead mandate that people buy Chrysler products?

If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?

Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?

In Federalist 45, James Madison said: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite." What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?

It is unfortunate that Will's column did not make the hard copy of today's Washington Post.  (The column is dated today, but it'll likely appear in his regular Sunday space.) Senators on the Judiciary Committee need to read this stuff.

June 25, 2010 10:40AM

1940: The Birth Year of Liberal Anti‐​Communism?

We sometimes talk about 1943 as the year that the libertarian movement really started, with the publication of three passionate books by Ayn Rand, Rose Wilder Lane, and Isabel Paterson. In his review of a new biography of Arthur Koestler, Paul Berman makes 1940 sound like a crucial year for books of liberal anti-communism (that is, of course, anti-communism by modern liberals, not classical liberals, who were always opposed to socialism). Perhaps it took 20 years for liberals and anarchists to realize what was happening in Russia and organize their thoughts about it. Libertarians got there a bit sooner, from Mises's theoretical critique in Socialism in 1922 to Rand's firsthand experiences that led to the publication of We the Living in 1936. 

Koestler's book Darkness at Noon was completed in 1940, then smuggled out of Vichy France and published the next year. Also in 1940:

A talented little group of intellectuals in the 1930s was keen on Promethean myths, and the center of that impulse was the United States, where the talented group pictured the Communist movement in the light of Prometheus and his struggles. Edmund Wilson devoted his masterwork To the Finland Station to the Promethean theme—it, too, came out in 1940, by the way.... 

By the time Wilson completed his own manuscript, he knew very well that, in Russia, Marxism had pretty much failed. And he attributed this failure largely to a philosophical error on Marx’s part, back in the nineteenth century. Marx had thoughtlessly incorporated into his own doctrine a whiff of mysticism, drawn from Hegel. The mystical whiff had transformed Marx’s movement from a sober, progressive-minded, social-science action campaign into a movement of religious inebriates. A religious frenzy had produced a hubris. Under Lenin and the Bolsheviks, hubris led to despotism. And to crime—to the deliberate setting aside of moral considerations. To the dehumanization of humanism.

divSuch was Wilson’s argument in To the Finland Station. Here was the Promethean myth, twisted into tragedy: a story of rebellion and counter-rebellion. Freedom and its betrayal. Fire and self-immolation. Wilson’s philosophical mentors were Max Eastman and Sidney Hook, and in that same year each of those redoubtable thinkers came out with his own variation on the same interpretation—Eastman in an essay in Reader’s Digest (which later appeared in his book Reflections on the Failure of Socialism) and Hook in a volume called Reason, Social Myths, and Democracy. In the United States in 1940, tragic Prometheanism was more than an argument. It was a school of thought.

And somehow Koestler, composing his novel under European circumstances inconceivably more difficult than anything his American colleagues would ever experience, arrived at roughly the same interpretation.

Berman goes on to discuss Alexander Berkman, a Russian-American Jewish labor organizer who was deported to Russia in 1919 along with Emma Goldman and more than 200 others. Berkman saw what was happening, fled to France, and started raising money to support persecuted revolutionaries in Leninist Russia. One of his followers was G. P. Maximoff, a Russian anarchist who was imprisoned in Moscow and then fled to Chicago. It may be surprising to hear that what Berman calls the best-documented book about terror in Russia (at least before modern times) was published with the support of the International Ladies Garment Workers Union.  

He earned his living as a wallpaper-hanger. In his free time, though, he kept up the documentary labor, and he compiled his investigations in a systematic fashion, and ultimately he came out with a 624-page volume. Maximoff called his book The Guillotine at Work: Twenty Years of Terror in Russia (Data and Documents). It came out in 1940—the year of Hemingway’s For Whom the Bell Tolls, Wilson’s To the Finland Station, Hook’s Reason, Social Myths, and Democracy, and Eastman’s essay in Reader’s Digest; the year in which Koestler completed Darkness at Noon.... [H]is extraordinary book was published by a little committee of his own allies called the Chicago Section of the Alexander Berkman Fund, who drew their own support chiefly from Berkman’s old fraternal order, the Workmen’s Circle, and from the International Ladies’ Garment Workers Union (where the anarchists were part of the power structure) and a scattering of Russian and anarchist groups in the United States.... The second half of Maximoff’s book, which contains the crucial documentation, is completely unavailable nowadays, except in a few libraries and among a very few secondhand book dealers. I would be surprised to learn that more than a handful of this magazine’s readers have ever heard of this book.

Even so, of the various works from 1940 that I have been discussing, Maximoff’s The Guillotine at Work has got to be the most powerful, emotionally speaking, and the most convincing, intellectually speaking, and the most horrifying, morally speaking. The book portrays Lenin as a monster, committed to murders and terror on the hugest of scales. The book documents the portrait. The book recounts the several phases of Lenin’s policy year by year, beginning in April 1918, when the Moscow Anarchists were suppressed. The book explains the mass consequences of Lenin’s policy, beginning with a politically induced famine as early as 1921. The book recounts the gradual destruction of any sort of political freedom in the Soviet Union. The book proposes a few statistical consequences....

You also realize, reading Maximoff’s The Guillotine at Work, that here is a kind of preliminary draft of Solzhenitsyn’s The Gulag Archipelago. Did Solzhenitsyn know anything about Maximoff’s great work? Solzhenitsyn definitely knew some of the imprisoned anarchists. In his novels he describes in a somewhat sympathetic fashion the admirers of Kropotkin, living out their fate in Siberian exile. But he appears not to have known anything about Maximoff. Michael Scammell is the biographer of Solzhenitsyn as well as of Koestler, and, though his biography of Solzhenitsyn is enormous (as is the biography of Koestler), Maximoff’s name never comes up. Anyway, it is hard to imagine how Solzhenitsyn could have stumbled across Maximoff’s fat volume. Maximoff wrote in Russian, but the Chicago Section of the Alexander Berkman Fund published the book in English translation.

It goes without saying that The Guillotine at Work lacks some of the rhetorical force of The Gulag Archipelago. Maximoff was a man of literary talent, even so. In reading his book, you already begin to glimpse the power that Solzhenitsyn’s work would prove to wield decades later. For here, in The Guillotine at Work in 1940, is already a total demolition, intellectually speaking, of what Alexander Berkman called, in a pamphlet of his own, “The Bolshevik Myth”—a total demolition because it blows up the Communist idea at its foundation. And what is that foundation? This is worth defining.

Marx, in his own masterwork, Capital, wrote about the horrors of poverty, exploitation, famine, and class inequality. Maximoff writes about similar things. But Maximoff’s masterwork focused mostly on the horrors of incarceration. The Guillotine at Work and The Gulag Archipelago are identical in this respect. These are books about jails, not about wages. Imprisonment, not exploitation. About the Solovietski Monastery and the Moscow Taganka prison, not about factories and farms. These books offered the revelation that, under communism, the old czarist prison system, instead of withering away, had gone into bloom. And the revelation that communism’s prisons had destroyed the old Russian heroes en masse—whole movements of those heroes, not just Peter Kropotkin’s faithful readers and followers, but the Mensheviks, too, the readers of Karl Kautsky, together with the Social-Revolutionaries and everyone else. This was the news that broke communism’s back—the prison news, and not the revelation that, under communism, the proletariat had failed to thrive, even if it was true that, under communism, the proletariat had failed to thrive....

Berman, who has written a great deal about both liberal and illiberal movements, including much recently about Islamic fundamentalism, longs for the days when liberals offered a vigorous and organized intellectual response to totalitarianism:

Reading Scammell’s account, I begin to grow a little indignant about the intellectual scene in our own moment, a couple of generations after the major achievements of the Congress for Cultural Freedom. It is very odd that nothing like the Congress for Cultural Freedom exists in our time. A tremendous intellectual debate is taking place right now across huge portions of the world, with the Islamists on one side and a variety of anti-totalitarian liberals, Muslim and non-Muslim, on the other. But the kinds of liberal congresses and campaigns that Scammell describes have never taken place in our day, not on a grand scale anyway. We have human rights organizations, but we do not have sustained campaigns on behalf of the persecuted liberals in countries where organizations such as the Muslim Brotherhood wield a lot of influence. We do not even have the kinds of congresses or conferences that would allow liberal-minded writers from different countries and speaking different languages to meet each other and discuss their respective experiences and thoughts. Nor do we have any kind of sustained and coordinated effort to translate books and essays from one language to another—not on a truly large scale. On matters such as these, Hook, the old socialists of the American labor movement, Koestler, his comrade Manès Sperber in France, and their various colleagues of the 1940s were way ahead of us.

June 25, 2010 9:46AM

Has Biddle Given Up on Karzai?

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Stephen Biddle[/caption]

During the discussions in 2009 over what to do in Afghanistan, Stephen Biddle of the Council on Foreign Relations emerged as an influential voice for staying in the country and ramping up a counterinsurgency campaign.  In a widely-read article titled "Is It Worth It?" the author answered in the affirmative but warned that an expanded war would be "costly, risky and worth waging---but only barely so."

In support of the administration's Afghanistan policy, Biddle has argued repeatedly that our cart is hitched to Hamid Karzai's horse.  In January of this year Biddle declared that winning the war "is going to require, among other things, a conscious decision by Hamid Karzai to...implement reforms. If we cannot persuade him to do that, we are not going to succeed."  In a 2009 interview making the case for staying in Afghanistan, Biddle had argued that

The key issue is whether or not the governance reform campaign can succeed. I tend to think that's co-equal with security provision. Both are necessary; neither is sufficient for success.

So Biddle's basic plan then was to lean on Karzai to support necessary political change in the national government and to support this objective with an expanded population-centric counterinsurgency campaign.

Now Biddle and two co-authors have an article in the current Foreign Affairs promising to "define success in Afghanistan."  In the new piece, Biddle et al. argue for acceptance of pretty radical decentralization---seemingly marginalizing Karzai, relative to Biddle's previous writings---and for supporting this decentralized approach with...well, more population-centric counterinsurgency.

Biddle and co-authors sketch out two outcomes they assert are tolerable and achievable: "decentralized democracy," which would insist on some semblance of democracy but leave considerable authority at the local level, and "mixed sovereignty," which is an even more decentralized and less democratic version of decentralized democracy.

What's striking in the new piece is that Biddle seems basically to have given up on Karzai---and with him, on the Afghan state.  But strangely, the Afghan state comes back into the story at crucial junctures and is supposed to assert authority over provincial bodies.  Take the example of revenue.  Biddle et al. warn that under mixed sovereignty, "the Afghan state would have to crack down on the narcotics trade, which if left unchecked could dwarf the revenues provided by foreign aid and and make such aid a less convincing incentive for compliance with the center."  But how are they supposed to crack down when the reason for the acceptance of decentralism in the first place was because the Afghan central government was so weak?

There's a real tension in the piece between the acceptance of multiple centers of power across the country and the sporadic demands made by the authors that Kabul assert control over the provinces.  If the reason we're accepting decentralism is because it's too hard to consolidate power in Kabul, how can we demand Kabul exercise control over the provinces?

June 25, 2010 7:24AM

Fifth Anniversary of Kelo v. New London

With all the property rights news coming out of the Supreme Court and New York Court of Appeals in the last week, I almost missed Wednesday's fifth anniversary of the dreadful Kelo v. New London decision.  Justice Stevens's  opinion in Kelo sanctioned a transfer of private property from homeowners to a big company in the name of (promised but, as we've seen, never realized) job creation and increased tax revenue. 

This was a Pyrrhic victory for eminent domain abusers, however, given:

  • 9 state high courts have limited eminent domain powers;
  • 43 state legislatures have passed greater property rights reform;
  • 44 eminent domain abuse projects have been defeated by grassroots activists;
  • 88 percent of the public now believes that property rights are as important as free speech and freedom of religion.

To learn about these and other fascinating developments that turned a property rights lemon into at least some type of lemonade, see the Institute for Justice's new report and video.

June 24, 2010 5:03PM

The Supreme Court’s Decision in Skilling

This morning the Supreme Court issued its long awaited decision in the case of Jeffrey Skilling.  The most important aspect of the case concerned the so-called "honest services" statute.  That law has been an amorphous blob that federal prosecutors could suddenly invoke against almost anyone.  All nine justices acknowledged the law had problems, but only three--Scalia, Thomas, and Kennedy--said the law was unconstitutionally vague.  The other six justices bent over backwards to "save" the law from invalidation--they ruled that the law should be narrowly interpreted.  Here is, I think, the most telling passage from the majority's ruling:

"As to arbitrary prosecutions, we perceive no significant risk that the honest services statute, as we intrepret it today, will be stretched out of shape."

Instead of strict rules and limits on government power, the Court is content to offer leeway to the prosecutors--some risk of arbitrary prosecutions is acceptable you see. 

The burden ought to be placed on the government--legislators and prosecutors ought to be able to justify every single case.  Instead, this Court needs to be persuaded that a significant risk of abuse exists.  Here is a passage from a Supreme Court case from years ago that gets it right:

"A criminal statute cannot rest upon an uncertain foundation.  The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.  Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another."

The second issue in the case concerned Skilling's right to an impartial jury trial.  And it came as no surprise that the Court embraced a prosecutor-friendly view of the Sixth Amendment.  Skilling argued that the climate in Houston following the collapse of Enron was so hostile that he should have been granted a change in venue.  He's right about that.  The prosecution should be indifferent as to whether they present their incriminating evidence in Houston or another city.  Instead, the Court shifts the burden to the accused and sniffs, "sorry, you have not clearly proven to us that you were prejudiced by biased jurors.  If someone could prove beyond a reasonable doubt that they had a biased jury, well that would be another story." 

Here's a modest proposal: This  summer each justice should represent some persons accused of crimes. 

For additional background, go here.