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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.

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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.

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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.