Justice Scalia's logic

Having struck one blow for traditional American liberties last week, this week the Supreme Court, again by a 5-4 majority which once again cast Justice Anthony Kennedy in the role of Justice Owen Roberts in 1935-6, delivered, in the person of Antonin Scalia, one of the most extraordinary opinions it has ever handed down. Scalia (like Kennedy) is a Silent, not a Boomer, but the opinion is a piece of Boomer jurisprudence at its worst, showing no respect for either precedent or logic. Although the issues involved are hardly so titanic, it certainly has some parallels to the Dred Scott decision of 150 years ago.

To be fair, any attempt to interpret anything today in light of the Second Amendment faces a serious problem. “A well-regulated militia being necessary to the security of a free state,” it reads, “the right of the people to keep and bear arms shall not be infringed.” As both Scalia and his dissenters (Justices Stevens and Breyer) point out, this amendment, like many of the rest of the Bill of Rights, was written to meet historically based objections to the original constitution that had emerged during ratification debates. The Founding Fathers had already inserted a protection against a national standing army by restricting any appropriation for such to a maximum period of two years, but that did not satisfy everyone. Some wanted to ensure that a permanent militia large enough to resist the encroachments of the central power would always continue to exist—and many remembered the attempts of the British Kings Charles II and James II to disarm Protestant militias on the eve of the Glorious Revolution of 1688, which had given British subjects many of the same rights. For that reason the Second Amendment was passed.

Now the problem is that it would be extremely difficult to find any provision of the Constitution that has become as dead a letter as that one. The Third Amendment, which bars quartering of troops in peacetime or in war (except as provided by law), draws considerably less attention nowadays, but we in so sense violate it. The whole theory upon which the Second Amendment is based, however, is no longer anything but a historical curiosity in the United States except among a few rural Americans of politically marginal views who still expect a militia to restrain the federal government. The militia is the ancestor of today’s National Guard, which a few southern Governors in the 1950s and 1960s did try to use to restrain federal power to insist upon integration, but which (as they found) is ultimately under the authority of the President anyway. We have no body designed to resist federal encroachments, and we have no plans to have one. The Second Amendment has become, in a sense, an irrelevance—it has in effect been repealed for lack of interest, because the people of the several states, whom it was designed to protect, no longer care about its actual purpose.

Oddly, neither Scalia nor Stevens nor Breyer addressed that point directly (although Scalia, as we shall see, reinforced it from another angle near the end of his opinion.) Instead, Scalia’s opinion is really based on the idea of a pre-existing right to bear arms to which the Second Amendment, he claims, tangentially refers. The preamble clause, he argues, is not designed to limit the scope of the right to bear arms. That, it would seem, puts a large burden upon him to show where the pre-existing right comes from. He is not very successful, in my opinion, in doing so.

Scalia obviously decided that he need only prove that “arms” in the Second Amendment did not necessarily refer to weapons for use in the militia (certainly a critical point for him since, as we shall see, he eventually had to admit that we do not, and could not, authorize the private possession of militarily useful weapons today.) To do so he cited some early American regulations of the possession of “arms” that clearly did not refer to such weapons. (Several of them refer to servants or slaves and notably are designed not to specify who could possess weapons, but rather those who could not.) He also mentioned that several early state constitutions did guarantee a popular right to “bear arms in defense of themselves and the state.” That, however, does not seem to me to be of much help to him. Some states codified such a right (always, one might note, a minority), while others did not. Neither did the authors of the Second Amendment, suggesting that such a right was none of their concern. Scalia’s rather novel argument is that because some of them mentioned it, all of them believed in it.

Scalia then tries to turn the Glorious Revolution precedent to his own ends. Here is the text of that part of the opinion.

Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3 J. Story, Commentaries on the Constitution of the United States §1858 (1833) (hereinafter Story) (contending that the “right to bear arms” is a “limitatio[n] upon the power of parliament” as well). But it was secured to them as individuals, according to “libertarian political principles,” not as members of a fighting force. Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979).

As we shall see, Scalia will eventually be forced into the position that the right the plaintiff Heller was asserting in this case has nothing to do with politics or government at all, but simply reflects the need for individual self-defense against burglars and such. Yet the precedent he is citing obviously provides less than no support for that position. To begin with, to limit the right to Protestants obviously made it political rather than individual, designed to make sure that a Catholic prince would not deprive them of their rights. And secondly, while this provision of the English Bill of Rights does not mention “militia,” it is obviously designed (in a much narrower and religiously biased way) to do just what the Second Amendment did, namely, to maintain an alternative source of power among at least some of the people to resist executive usurpations of power.

As it turns out, Scalia relies almost entirely upon academic commentaries—those of the English jurist Blackstone and several American successors—to argue that a right to individual self-defense existed. But if it did, shouldn’t it be reflected in dozens, if not hundreds, of Anglo-American legal precedents? Even his own quotations refer to the need to defend liberty against the state, which was not Heller’s concern and does not purport to be the concern of the Natoinal Rifle Association either. With a bow to the left (historically conceived), Scalia also quotes Charles Sumner’s famous speech “The Crime Against Kansas” (conveniently available in a recently published anthology) defending the right of antislavery settlers to defend themselves—but that is not a true legal precedent.

Scalia then comes up with some actual 19^th-century court opinions with refer to a general right to bear arms in self-defense, or even to carry them in public, as was so common in the American south in those days and later, of course, in the West. But those cases, ironically, often refer to legislated exceptions to such a right, such as southern laws depriving free blacks of it. Nor does he claim (it would be impossible to do so) that there is any generally recognized right to carry arms in public, a practice that has been forbidden at many times and in many jurisdictions and still is today, although the NRA would apparently like to bring it back. And all the while Scalia keeps fudging a distinction. Many of his cases, like the Second Amendment and the relevant provision of the English Bill of Rights, obviously relate to the political purpose of allowing citizens to bear arms as a check on arbitrary power, but if they do not specifically use the word “militia,” he insists that they confirm that the Second Amendment did not only refer to the right to bear arms so as to serve in a militia. This also applies to some post-civil war cases he cites that tried to confirm the right of freed slaves to bear arms—obviously a political matter as well.

After this lengthy historical survey of cases—none of which has anything to do with keeping a revolver in one’s home for self-defense—Scalia turns to the case which his decision largely overruled, U.S. v. Miller (1939), upholding a ban on the interstate transportation of sawed-off shotguns. He summarizes it thusly, beginning with Justice Stevens' own account of it. (It is an extraordinary feature of Scalia's majority opinion that it spends so much time trying to refute the minority rather than making a case of its own.)

[In Justice Stevens's discussion of] this Court’s decision in United States v. Miller, 307 U. S. 174 (1939). “[H]undreds of judges,” we are told, “have relied on the view of the amendment we endorsed there,” post, at 2, and “[e]ven if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramaticupheaval in the law,” post, at 4. And what is, according to JUSTICE STEVENS, the holding of Miller that demandssuch obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.” Nothing so clearly demonstrates the weakness of JUSTICE STEVENS’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [shortbarreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right. This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. JUSTICE STEVENS can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 42–43, but the words of the opinion prove otherwise. The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4–5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

Indeed it does. Amazingly, Scalia adds that the government’s brief in Miller also argued rather strongly that Anglo-American law included no general right to carry weapons for self-defense, a point on which the court did not rule—but exactly the point that his opinion should have been addressing. What is truly amazing, however, is what happens to the whole issue of the kind of weapon involved when Scalia gets down to his conclusion.

“It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

And there we have it—Scalia and the majority’s admission that we are not, and could not possibly, apply the Second Amendment in the sense it was intended today. Citizen armies have no chance against regular armies anymore, and Americans, heaven help them, must rely upon other instruments—principally our legal system—to defend our rights. (Last week we saw that one of the most fundamental of those rights now hangs by the vote of a single justice.) Scalia’s ”interpretation of that right” is that it does not necessarily relate to service in a militia, but he has totally failed to show that it is detached from its broader political significance. But to make any sense out of his decision he has to detach it completely from any such significance, and he proceeds to do so.

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. [N.B. As I have been trying to show, that is exactly what those quotations did not demonstrate.] The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” would fail constitutional muster.

Presto! Without any substantial basis in common law precedent and in total defiance of virtually every discussion of the Second Amendment and of its language, a right to the defense of one’s home with firearms has been created out of nowhere. And why should it extend to handguns? Scalia’s answer reads as if it had been written in the offices of the NRA.

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

Americans are entitled to handguns because they like them. I cannot help but note that that is exactly the argument Scalia rejected a couple of years ago with respect to sex between consenting adults. Nor can I forbear to note that burglars and intruders are, of course, a tiny fraction of the Americans killed by handguns in American homes. The vast majority of such deaths involve murders of family members and acquaintances, and suicides.

This month marked the 40^th anniversary of Robert Kennedy’s death, and November will mark the 45^th anniversary of his brother’s. It is one of the great ironies of those two events, as I noted at the end of The Road to Dallas, that they indirectly created the pro-gun movement in the United States, by getting liberals interested in the restriction of firearms. In the same way, Roe v. Wade created the powerful anti-abortion movements. Those two lobbies, in alliance now with virtually the entire Republican party, have mounted a legal/political campaign parallel in its length and intensity to the civil rights movement of the first two-thirds of the twentieth century in an effort to enshrine their views. The NRA has now succeeded and abortion rights law is also hanging by a thread. But ironically, the evidence of Judge Scalia’s opinion suggests—to me at least—that traditional Anglo-American gun rights have always had a mainly political significance and that no right to firearms for personal self-defense has ever been recognized. If it had, he could have written a better opinion.

Postscript to Habeas Corpus

Justice Scalia's dissent in Boumedienne vs. Bush, which I mentioned last week, argued not only that more Americans would be killed as a result of the majority opinion, but that 30 detainees released from Guantanamo had already "returned to the battlefield" and had been responsible for a number of deaths. I do not know how often Supreme Court Justices have been caught putting false information into their opinions, but that is what has happened here. Some Seton Hall law professors, bless their hearts, have published a report exploding this data as an urban legend--one which the Pentagon had already had to repudiate. The maximum number of released detainees (none of whom, of course, was released thanks to court proceedings) who have taken up arms is twelve, and none of them has been responsible for the death of an American. In releasing their report the professors made an interesting point: for all its imperfections the adversarial process is the best one we have found for determining the truth, and it would have a much better chance of making sound decisions about who has to be detained and tried and who does not.

Plans for Iraq

Several news stories last week have made clear the Bush Administration's plans for Iraq. They seem to confirm a great many suspicions that some have harbored from the very beginning.

The principal issue between the United States and Iraqi governments right now is the pending Status of Forces agreement, which the Bush Administration wants to replace a UN mandate that will be expiring at the end of the year. Based on news reports, that agreement would turn Iraq into what was called in the late nineteenth and early twentieth centuries a Protectorate. It would create as many as 50 permanent American military installations inside the country, and give the United States the right to conduct military operations and detain Iraqi citizens as we saw fit. Yet meanwhile, Washington does not apparently want to assume the obligation of defending Iraq against foreign enemies, perhaps so as not to be drawn into the intermittent, small-scale war that has already started between Turkey and Kurdish activists based in Kurdish Iraq. One news account perceptively pointed out that the British reached a similar agreement with the Iraqi monarchy in 1932, when Iraq received independence. That agreement--which was never popular--led in 1941 to a pro-Nazi coup, followed by the renewal of British occupation until 1947. Semi-independence was a key feature of British policy in the Middle East in mid-century. Egypt enjoyed a similar status until 1952 when Gamel Abdul Nasser overthrew King Farouk, threw the British out, and became the leader of Arab nationalism. The British also tried without much success to retain influence in Jordan by arranging for the British Glubb Pasha to remain in command of the Arab legion. After Nasser nationalized the Suez Canal in 1956, the British arranged an alliance with France--whose government nurtured the fantasy that Nasser was chiefly responsible for its troubles in Algeria--and with Israel to attack and unseat Nasser. That move angered the rest of the world, including the United States, and completely backfired. The era of both informal and formal western rule in the Middle East seemed to be at an end.

In retrospect the Arab nationalism of the 1950s looks relatively easy to deal with, not least because it was largely modernist and secular. What we hope to do in Iraq, however, seems likely to confirm all the contemporary propaganda of Islamic fundamentalists, and it is already provoking considerable Iraqi resistance. Once again we are confronted with a grave dilemma: the Iraqi parliament whose election we arranged is not likely to approve the kind of relationship our government wants with Iraq. Meanwhile, the Bush Administration--in another breathtaking extension of executive power--wants to assume responsibility for the domestic security of a foreign nation without submitting the matter to Congress.

The second story has to do with oil--that four western oil companies have carved out a role for themselves in improving the functioning of Iraqi oil fields, and hope that this will lead to long-term contracts. Now it is rapidly becoming a conservative article of faith that nationalized oil companies like those of Venezuela, Ecuador and Russia are bad things--that they cannot be relied upon develop their oil fields efficiently. The idea that western private companies might once again tap the huge oil reserves of Iraq cannot help but be appealing. But it, too, would reverse a half-century old trend, and it would indicate a return of western economic, as well as political, domination. It is hard to believe that Iraqis will undertake this willingly.

Imperialism, I have become convinced over the years, never results simply from the rapacity of richer nations. A stronger and a weaker nation cannot be brought into a relationship without the stronger tending to corrupt the weaker, and the real question is not whether the stronger nation will acquire influence, but how much it will try to acquire. As long as the Middle East pumps enormous quantities of oil, its politics and ours will remain intertwined. President Bush has apparently decided that he can cut the Gordian knot by turning Iraq into an ally like Germany or Japan, but there is little evidence that any leading Iraqis of any persuasion want what our government wants. No agreement, probably, will be signed, and the new President will inherit a legal limbo. I hope that by the end of his first term Iraq might have a truly sovereign government--or, perhaps, more than one of them. That in any case should be the American goal.

Habeas Corpus

Yesterday was a critical day in American legal history--a milestone in the continuing struggle to preserve the Anglo-American heritage of civil liberties. The Supreme Court's decision in the case of Boumedienne vs. Bush has already become the source of political controversy, but sadly, very few Americans will take the trouble to read it. Those who do will get a fascinating lesson in the history of liberty on both sides of the North Atlantic, and a scary insight into the intentions of the current Administration. And Judge Kennedy's decision may come to rank close to the great opinion in Ex Parte Milligan, to which I devoted a post many months ago.

Kennedy began by relating the history of the principle of habeas corpus--that a detained prisoner may appear before a tribunal which shall order the government to show just cause for his detention, or alternatively to release him. That history goes back to 1215 and the Magna Carta, which stated more broadly that men could only be imprisoned according to the law of the land. He then discussed the critical reference to the "great writ" in Article I (legislative power) of the Constitution, which states that this privilege can only be suspended "in time of invasion or rebellion, as the public safety may require it" (emphasis added). As he pointed out, this was virtually the only place in the whole original Constitution (as opposed to the subsequent Bill of Rights) in which the Founders referred to a specific common law right--indicating the importance which they attached to it, and specifically imposing a very high burden on the Congress (and an even higher one, presumably, upon the Executive) should either think of suspending it. In this case, of course, a spineless Congress, faced in the last two years with an executive-judicial deadlock over the rights of Guantanamo prisoners, specifically took away the detainees' habeas corpus rights last year. Like the great Justice Black in the Pentagon Papers case, Kennedy--along with Stevens, Souter, Ginsberg and Breyer--decided to remind both Congress and the President that the plain language of the Constitution means what it says.

And indeed, even the Bush Justice Department--which has shown a complete contempt for precedent on many occasions--was not willing to challenge that provision head on. Instead, they relied largely on two other arguments: that the detainees are aliens who therefore do not enjoy constitutional protections, and that Guantanamo, although it has been leased and governed by the United States since 1898, is outside the Constitution. As it turns out, both of these issues have been faced repeatedly by the Supreme Court, and uniformly decided in the opposite sense. New issues arose, indeed, after the Spanish-American War, when the United States for the first time seized territories that it had no intention of incorporating as territories under the laws of the United States and turning into states. In general, the court has held that Americans abroad enjoy the same rights as Americans at home. The court in 1950 declined to grant habeas corpus hearings to some German prisoners detained by American occupation authorities in a West German prison, but as Kennedy pointed out, it did so largely because of the practical difficulties of holding a hearing in U.S. courts, and because sovereignty within West Germany was by then effectively divided between the occupiers and the new government of the Federal Republic--a very different situation from Guantanamo, which American military authorities have ruled for over a century. As Kennedy pointed out, the government is arguing that because of Guantanamo's anomalous status, American governmental authorities can govern extra-constitutionally within it. He and his colleagues rightly rejected the idea that our government can simultaneously be a democracy at home and a dictatorship in a foreign possession. "These concerns," Kennedy wrote, " have particular bearing upon the Suspension
Clause question in the cases now before us, for thewrit of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain."

That is not all. The case of the German prisoners (Eisentrager) was, as Kennedy points out, entirely different from those of the Guantanamo detainees for several reasons. First of all, there was no doubt that the prisoners had in fact made war upon the United States and had become prisoners of war in so doing--exactly the point that many Guantanamo detainees deny and want to have adjudicated. Secondly, the Germans had been tried and convicted of war crimes in normal American military courts--exactly the course of action the Bush Administration has refused to take because it could not get convictions. And they were not tried, like Milligan in Indiana during the civil war, in a jurisdiction where normal civilian courts were functioning. Essentially they were trying for what the British call a second bite of the cherry, and it is not difficult to understand why the Supreme Court refused to grant it. Yet Eisentrager, Kennedy writes, was, amazingly, the Administration's principle grounds for arguing its position!

Then follows a long section that, first, reviews and reaffirms the use of habeas corpus proceedings to allow even defendants who have been convicted in American courts the right to challenge the legality of their conviction (a right that recent laws have restricted somewhat, but not eliminated), and secondly, argues that a substitute procedure might be adequate to deny the writ. The procedures now available to Guantanamo detainees, however, do not, Kennedy emphatically states, meet that test. The accused cannot see all the evidence against him and, because hearsay is admissible, he cannot challenge all the witnesses in court. In short, the detainees are manifestly in need of exactly the kind of protection the great writ offers. And furthermore, as Kennedy stresses, under the Detainee Treatment Act (DTA) that denied them habeas corpus, detainees will never have an opportunity to present any new exculpatory evidence once they have been designated as an illegal enemy combatant subject to detention until the war on terror is declared over. Although the Court of Appeals can review the proceedings of the Combatant Status Tribunals, it can do so (under the law) only to determine whether the proceedings fell within the guidelines laid down by the Secretary of Defense--not to evaluate the worth of the evidence presented, much less to hear new evidence. That, Kennedy and the majority concluded, does not adequately protect the rights of prisoners, some of whom have been detained for six years.

Chief Justice Roberts's dissent is noteworthy because of the way that he stands the whole question on his head. Kennedy focuses on the right of the government to detain aliens under its jurisdiction and insists, properly in my view, that the Framers rightfully placed explicit restrictions on the government's ability to detain anyone by denying the right to suspend habeas corpus except in time of invasion or rebellion. Roberts instead argues in effect that the detainees do not enjoy the rights of citizens and that the law Congress passed is adequate to protect any rights they may have. The majority, he says, "fails to show what rights the detainees have that cannot be vindicated by the DTA system." By casting the issue in terms of the prisoners' rights instead of the government's, in my opinion, Roberts is standing the Framers' intent on its head. Merely his attempt to specify a class of people whose rights cannot be precisely defined is, to me, chilling. Scalia's dissent has received much attention because of his prediction that the decision will result in the deaths of more Americans, and he cites several news accounts claiming that detainees already released (not, to be sure, thanks to American federal courts) have perpetrated violent attacks abroad. (The possibility that their detention turned them into terrorists he does not of course mention.) But it is equally noteworthy that he spends pages and pages arguing that the writ of habeas corpus was never supposed to apply to places where the US was not sovereign--ignoring that no other country has exercised any authority in Guantanamo for a century, and ignoring the implications of allowing the government to rule territory in which it is not bound by the Constitution.

The election of Barack Obama seems to be getting more likely every day, and electoral-vote.com now shows him with a probable 304 electoral votes. Should he win Justice Stevens, now in his late 80s, can safely retire and preserve the existing 5-4 majority. Yet it is sad to note that all the Boomers on the court (Roberts, Alito and Thomas) are extreme conservatives. The court's greatest civil libertarians--Warren, Douglas, and Black--came from the Lost Generation, a Nomad generation like Obama's own Gen X. Perhaps he will appoint some justices under 50 when he gets a chance.

Footnote: Justice Scalia should read the story about detainees that has just appeared in the McClatchy newspapers. After researching the question all over the world, their reporters have concluded that dozens, and perhaps hundreds, of the prisoners held for years at Guantanamo were never terrorists at all. One does not have to agree with Jefferson (as Scalia obviously does not) that it is better for 100 guilty men to go free than to hang one innocent man to believe that the men at Guantanamo have deserved a much better hearing than they have ever been able to get.

A Presidential speech

I did not plan to post today (Friday), but two items caught my eye. Paging through the New York Times, I found that a certain Michael Vlock of Orange, Connecticut had purchased not one, but two full pages of the first section to reprint President Bush's entire speech to the Knesset. He argued that despite the controversy provoked by the speech in the United States, almost no Americans had had the opportunity to read it all. I did. The second were some excerpts from an interview the President gave last year to NBC news reporter Richard Engel, which will appear in Engel's forthcoming book. Together they give a good idea of how far we have sunk and how hard it will be to climb out of the hole we have dug over the last eight years.
President Bush is noted for his ability to speak in code, particularly to religious supporters. His use of words that will be understood by Christian Evangelicals has often been remarked upon, but before the Knesset, he did the same with respect to religious Zionists. The founding of Israel in 1948, he said, was "more than the establishment of a new country. It was the redemption of an ancient promise given to Abraham and Moses and David--a homeland for the chosen people Eretz Israel. [sic]" In short, he invoked the Old Testament as the authority for redrawing the map of the Middle East. Although he may not know it, a minority of religious Zionists in Israel (including, in the 1950s, Menachem Begin) have long argued that the Israelis must settle all the lands that the Lord promised Abraham, including not only the West but the East Bank of the Jordan River. (In his book on peace with Egypt, Ezer Weizmann, a more secular Zionist, reported that Begin in the 1950s wrote articles with titles like "Amman Too Shall be Ours.") Certainly they will draw comfort from the President's speech.
That, however, was not all. In the very next sentence the President linked the Zionist enterprise to the settling of North America by Europeans in the 17th century. "The alliance between our governments is unbreakable, yet the source of our friendship runs deeper than any treaty." [That in itself is a fascinating sentence--does the President actually know that there is in fact no treaty of alliance between the United States and Israel?] "It is grounded in the shared spirit of our people, the bonds of the Book, the ties of the soul. When William Bradford stepped off the Mayflower in 1620, he quoted the words of Jeremiah: 'Come let us declare in Zion the word of God.' The founders of my country saw a promised new land and bestowed upon their towns names like Bethlehem and New Canaan."
Now the President has history on his side here: that was indeed how those original settlers saw themselves. But in succeeding centuries, as more and more people of different religions (and of no religion at all) settled in the United States, we obviously abandoned such a vision in favor of a nation and a world based upon impartial laws, in which religion became a private, though protected, matter. To link the United States and Israel as two nations acting out God's will on earth strikes me as the perfect mirror image of Osama Bin Laden's call for Jihad against the Zionist-Crusader alliance--as well as the perfect confirmation of Bin Laden's propaganda. And the emphasis upon revealed truth as the source of the American experience obviously excludes those many millions of Americans like myself (as well as Thomas Jefferson) who rejected orthodox religion of any kind.
Now the issue of the legitimacy of all western nations--and particularly of both Israel and the United States--has been challenged again and again in the past few decades. In fact, few of us on either side of the politically correct divide want to face the historical truth of the matter. No nation or ethnic group, in all probability--and certainly none that has risen to greatness-can claim legitimacy based upon simple justice. All nations have built themselves at the expense of others. Today academia can talk endlessly about the sufferings of the North and South American indigenous populations after white people arrived on the scene--and they were real enough--but they ignore that the Americas before 1492 were not some bucolic, pacifist paradise. Those peoples had fought violently against one another for several millennia. Whole civilizations, such as the mound builders what is now the southern US, had disappeared. Central American empires practiced human sacrifice. The Middle East, too, was the scene of endless conflict both during and after the era of ancient Israel. Well into the twentieth century nations have established their legitimacy, in large part, through violence. The Israelis' misfortune was to come back into the game so late. They are right to argue, in my opinion, that those who reject their right to exist are holding them to a uniquely higher standard. On the other hand, the question of how large Israel should expect to be, and what it can afford to do to maintain particular territories, is one that desperately has to be decided based upon wisdom, not what the Lord supposedly said to Abraham several millennia ago. President Bush placed himself firmly in the opposite camp. Should it not be clear in the first decade of the twentieth century that a stable world or regional order cannot be based upon one religion's reading of ancient texts? Is our own President not trying to lead a regression back to early modern or medieval times?

The roll of Israeli leaders that he called in his speech was also interesting. "My only regret [sic] is that one of Israel's greatest leaders is not here to share this moment," he said. "He is a warrior for the ages, a man of peace, a friend. The prayers of the American people are with Ariel Sharon." He also found time to mention David Ben Gurion--who we know now never thought that the 1949-67 boundaries of Israel were adequate to its needs--and Golda Meier, who once denied that such people as Palestinians existed--they were merely Arab inhabitants of the land of Israel. But although he referred in passing to the risks Israel had run for peace, he could not bring himself to mention Yitzhak Rabin, who lost his life at the hands of Zionist extremism because he understood that the expansionist project had to be brought to an end were Israel ever to live in peace.

The President also specifically linked three organizations--Al Queda, Hamas, and Hezbollah--as the enemies of both Israel and the United States. It is true that none of those three organizations has accepted Israel's right to exist, but the linkage does raise the question of what the "War on Terror" has been about all these seven years--the same issue I raised nearly four years ago in my very first post. Coping with Al Queda, a small, conspiratorial organization whose leaders are in hiding in Pakistan, is a very different sort of problem (and a job that the Administration has failed to finish) than dealing with authentic and well-organized mass movements like the other two. Indeed, the Israelis realize this, and even now they are engaged in talks about a truce with Hamas, brokered by the Egyptians. But President Bush is having none of that, and he once again rejected any such negotiations. All the catastrophes of the last six years have not changed his views an iota--they have only made him cling more desperately to the certainty that he must be right.

The interview excerpts that have appeared on the web are equally interesting in this context. They follow.
"When NBC News correspondent Richard Engel sat down with President Bush last year for an interview, he had little idea how much Bush would reveal about his true intentions and his real sentiments about the war on terror and America’s allies and enemies.
"Among the excerpts of the interview captured in Engel’s new book, “War Journal: My Five Years in Iraq”:
- “‘This is the great war of our times. It is going to take forty years,’” [Bush told Engel]. “Bush said in forty years the world would know if the war on terrorism, and conflicts in Iraq and Afghanistan, had reduced extremism, helped moderates, and promoted democracy.”
- Bush admits to Engel that going to war was a decision based on his personal instinct and not on any long-range strategy for the Mideast:
“I know people are saying we should have left things the way they were, but I changed after 9/11. I had to act. I don’t care if it created more enemies. I had to act.”
- Bush tells Engel that the election of Hamas was actually a positive development because it pressured Palestinian Authority chairman Mahmoud Abbas to make reforms:
“I think the election of Hamas was a good thing. It proved to Abbas he was failing. I told Abbas, ‘You lost the election because you aren’t providing for your people, jobs, education, what people want.’ Now they know they have to compete.”
- And he says that Israeli Prime Minister Ehud Olmert is an obstacle to peace in the region:
“The problem is Olmert. This is a man who came to power on a promise that he was going to unilaterally define a Palestinian state. You can’t pressure democracies.”
- Bush also explains that he’s open to meeting with Iran, describing the administration’s attempt at dialogue with Syria, but that he’s doubtful it would be effective:
“We can have meetings. Talking is not the problem. We can talk to Iran. But Iran wants nuclear weapons and I’m not going to let that happen. Not on my watch. We tried to have dialogue with Syria, right after the war, didn’t get much.
[Syrian President Bashar] Asad didn’t deliver. We’d ask for ten al-Qaeda guys. They’d give us one.”

Others will have to explain whether or not Syria actually had "ten Al-Qaeda guys" to give us; I don't know. But I must say I was struck by the President's conception of democracy. When an American client (Mahmoud Abbas) loses an election, this doesn't mean he should yield power, it just means he should readjust his policies somewhat (or at least run a better PR campaign!) and try again in a few years. Last weekend I watched the excellent HBO film Recount, as was reminded that our own President lost the popular vote by half a million votes in 2000 and, the best and most thorough study showed, probably lost Florida, too, as a recount of the whole state would have revealed. (That datum was for some reason not mentioned in the film.) Could this indeed have influenced his views of democracy? Does he believe that the election of American Presidents, like the borders of the state of Israel, is controlled by a higher power? Does that help explain his refusal ever to modify any of his policies in response to massive popular disapproval? He has been quoted to the effect that Winston Churchill must have had a more difficult time staying the course than he, because Churchill lacked religious faith. It seems indeed that that might be the case.

Election prospects

It's my birthday next weekend, and after yesterday's Democratic Rules Committee meeting it looks like I'll get a very important present--the end of the Democratic race Hillary's long struggle (illustrated entertainingly in an amateur youtube video seems to be coming to an end. I did not get to watch any of it but friends who did reported that her supporters made a very poor impression. Meanwhile, there is increasingly good news on the broader electoral front.

As recently as a month ago, the excellent site electoral-vote.com showed John McCain beating Barack Obama in the general election. The site works in a straightforward fashion--its webmaster, an American living abroad, keeps track of every individual state poll and creates an electoral map based upon the most recent results. A month ago the most recent polls showed New Hampshire, Ohio, Michigan and Wisconsin in McCain's camp, and gave him about 290 electoral votes. I had trouble believing some of those polls, especially in New Hampshire, where the Democratic primary vote was more than twice the Republican. Now all of those but Michigan have gone over to Obama (the one poll in Wisconsin that showed McCain ahead has turned out to be an aberration), giving Obama 276, enough for victory. Indiana and Virginia show as ties in the last two polls. Obama leads in both New Mexico and Colorado, and is within striking distance in South Carolina (where, to be fair, the poll is so old as to be worthless) and in Missouri. In short, during a period when McCain supposedly had all the advantages, he has lost significant ground. Meanwhile, Obama has once again offered something genuinely new in foreign policy, pledging to end travel and currency transfer restrictions towards Cuba. That takes courage. It is not clear whether he can carry Florida, but the power of the anti-Castro Cuban lobby will be hurt nearly as badly if he is elected without Florida, He would be the first President since Clinton in 1992 to accomplish that feat. Before that, the last President to be elected without Florida was John Kennedy.)

Should Obama win he will be far more, of course, than the first President of partially African descent. (He is an African-American in the literal sense of the term--his father was an African.) As I have noted, the Boom generation's tenure in the White House will come to an end, and not a moment too soon after the ideology-driven catastrophe of the last eight years. His election would prove that racism has lost the power to keep an attractive candidate out of the White House--just as JFK's election proved the same point, if only by the narrowest of margins, in 1960. And it will be the first real victory for the anti-establishment wing of the Democratic Party--the wing that favored Henry Wallace in the late 1940s, and Kefauver in the 1950s, and Hubert Humphrey in 1960 and McGovern in 1972, before fading almost completely from the scene in the 1980s and 1990s.

I cannot predict what such a victory will mean for our domestic life. The rightward drift on the Supreme Court wil stop, but it has already gone a long way, and the two oldest justices are liberals. The Bush tax cuts will presumably lapse. Our economic crisis is likely to require truly innovative responses, and Obama is completely untested in that arena. The need for a new national health plan is becoming greater and greater but we don't know if a coalition can be created to pass it.

In the foreign sphere the election would be quite a jolt. Again Kennedy is a parallel--his electdion in 1960 reverberated throughout the emerging Third World because he had supported Algerian independence in 1957, and Obama's election, as I have found myself talking to foreign students where I teach, would be even more of a shock, since many simply cannot believe it could happen. Relations with Europe and perhaps China, I think, will improve, but how much can be done to improve our position in the Muslim world is no longer clear. A withdrawal from Iraq will be extraordinarily controversial. I see no real prospect of peace in the Middle East with or without any change in U.S. policy towards Israel; things have gone too far, and as in the 1990s (or the 1970s in Germany), the initiative for change will probably have to come from an Israeli leader, not an American one. Obama would inherit the leadership of the United States at our worst moment, probably, since 1932, even though we live in an economic paradise compared to that year. He will need every ability he has demonstrated during the campaign, and more.

I suspect, indeed, that we shall face problems during the next eight years that seem at least as serious and unprecedented as those that emerged on September 11, 2001. Indeed, they may actually be much more serious. As years pass I begin to wonder if we have not drastically exaggerated the terrorist threat, and whether our own exaggerations have not indeed led to our present predicament. While it is scandalous that Bin Laden is still at large, it is also striking that we have not been hit by another major attack. New problems will indeed require new people and new solutions. Nothing, in my opinion, hurt Hillary Clinton more this year than her repeatedly expressed desire to return to the lost world of the 1990s. Obama is obviously highly intelligent, inspirational, and relatively free of political and ideological ties to the past. That might turn out to be what the United States needs.