Why the Iraq policy isn't working

President Bush's sad speech today outlined the purpose of the war in Iraq, how the mission is succeeding, and what defines the eventual victory that will allow U.S. troops to come home.

The purpose, the president said, is to secure the safety of the American people from terrorists now in Iraq who share the ideology of the terrorists who attacked the United States on September 11, 2001. Fight them there or fight them here, the president said, presenting a demonstrably false choice. The September 11th attack was carried out by nineteen people. With armies that small, al-Qaeda can be in more than one place at the same time. If they truly are so tied up in Iraq that they can't attack inside the United States, perhaps we can drop all the screening and frisking and ID checks of American citizens. The president might be surprised at what it would do for his poll numbers.

The deeper part of the president's argument for the war, that free societies are peaceful societies, is absolutely valid. But his premise is flawed. Iraq is not a free society and is not on the road to becoming a free society.

Freedom is a condition that exists under a government of limited power. It is not a kit made up of voting booths and paper constitutions and public schools and cheerful slogans.

The power of the government of Iraq is unlimited, because every important industry in the country is a state-owned enterprise. The people who control the government control everybody's economic future. They control all the oil revenue. All the industry. All the jobs. All the wealth.

Try to imagine what the United States would look like under those circumstances. Imagine if all economic enterprise in the country was assigned by the national government and no one was free to compete with it. The only path to success in a system like that is connections, loyalty, unthinking obedience, and silent grumbling in case the walls have ears.

This is why totalitarian states have to buy or steal technology. A system of state-owned enterprise rewards qualities that are the opposite of those needed for innovation and advancement.

Voting booths don't help a system like this. Suppose the Kremlin power struggles had been resolved at the ballot box. Nothing would have changed except the names of the thugs who lived in luxury while everybody else waited for permission to get a new apartment. The fall of the Soviet Union was accompanied by privatization. Even though there was corruption, privatization reduced the power of the government and created freedom. Corrupt business tycoons don't have prisons and armies.

Today you can see the process in reverse as Vladimir Putin consolidates his government takeover of the oil and gas industries. Freedom in Russia is being reduced as government ownership of property increases.

Private property is the foundation of freedom. Privatization is what's missing in Iraq. We had our chance to privatize the oil industry and other enterprises in Iraq, but we missed it. It's not too late to pressure the Iraqi government to privatize, but President Bush shows no sign of understanding that this is the only solution to the violence in Iraq. Perhaps he fears that he would be seen as a tool of oil company interests. That would be a sad reason for the waste of American blood and treasure in the futile pursuit of an impossible contradiction.

The president went on at some length in his speech to explain the progress made in training the Iraqi Army. He believes the Iraqi armed forces will reach a point of competence that will permit the U.S. troops to come home without endangering the fragile new government of Iraq.

He's dreaming.

As long as the government of Iraq controls all the wealth of the country, there will be a bloody struggle for control of it. U.S. troops are like police cruisers on an Interstate highway. As soon as they're out of sight, normal driving resumes.

The president said the free government of Iraq will serve as a model for free governments in the rest of the region, and the spread of freedom around the world will make us all safer.

He would be right if Iraq really had a free government. If the Iraqi people were shareholders in their oil industry, owners instead of supplicants, the people of other oil-rich nations might well find the new system attractive enough to risk an overthrow of the dictators who run the show in their own countries.

Instead, we promote the ridiculous idea that people can choose their dictator in free elections and we call that progress on the road to democracy.

Elections are not freedom. Property is freedom. People who control their own economic future without the permission of the government are free. People who are forced to rely on the government for financial survival are not free.

The president quoted a letter written by a young American soldier who was later killed in Iraq. "Everybody dies," the soldier wrote, "but few get to do it for something as important as freedom."

For Corporal Starr and all the other lost Americans, for all the grievously wounded, for all the shattered families, we should make an effort to get it right.


Copyright 2005

For historical background and source notes on the history of creating freedom in America, read A Plan to Get Out of Iraq: Blackstone's Fundamental Rights and the Power of Property at www.SusanShelley.com.

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Drug companies run a string of girls

The New York Times reported Monday that pharmaceutical companies are recruiting their sales staff from the ranks of female college cheerleaders.

Why? Apparently because Playboy models want too much money.

The companies insist that the cheerleaders make ideal salespeople because of their great personalities.

The job entails calling on physicians, the majority of whom are men, and displaying enough personality to persuade the doctor to prescribe the salesgirl's drug to his patients.

The persuasion takes place right in the doctor's office. Now you know why there's a sink in every room.

Alas, the New York Times has exposed the fun and ruined it for everybody. Soon drug companies will be forced to hire sober and serious people to dispense information about the risks and benefits of new drugs. Soon doctors will be spending their office hours seeing their patients instead of keeping them waiting. Soon the cash-starved love bunnies and their sleazy medical friends can apply for work in the sex industry, where people do an honest day's work.

Copyright 2005

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Bill Richardson's hilarious draft dodge

New Mexico Governor Bill Richardson was forced to admit Thursday that his decades-old claim to have been drafted by Major League Baseball's Kansas City Athletics team in 1966 was, well, not true.

"After being notified of the situation and after researching the matter ... I came to the conclusion that I was not drafted by the A's," he said.

Governor Richardson came to that conclusion after the Albuquerque Journal investigated and found out that there was absolutely no truth whatsoever to the story.

Still the governor, who was a right-handed pitcher for Tufts University, wouldn't admit that he's been untruthful all these years. This is from the Associated Press story:

He insisted his name appeared on "a draft list of some kind" created by the Los Angeles Dodgers and Pittsburgh Pirates. He named team scouts, whom he said told him that he "would or could" be drafted. The scouts have since died.

Of all the bad luck.

It's okay, Governor, we believe you. Memory is a funny thing. Very funny.


Copyright 2005


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Why "intelligent design" isn't just another theory

C-SPAN just replayed a call-in show from earlier today on which proponents of intelligent design were challenging author Matthew Chapman, a great great grandson of Charles Darwin, to explain why intelligent design should not be taught alongside the theory of evolution.

Everything should be taught, the callers insisted. There are gaps in the fossil record and evolution can't be right, they contend. The universe is too complex and must have been created by an intelligent designer, they believe.

Enough already.

Intelligent design is not just another subject that can be taught in an academic setting. Intelligent design is an attack on rational thought which undermines the entire process of education. It does not prepare children to evaluate rival claims and use their own minds to decide what is right. It prepares them to take instructions without questioning from people who wish to control their minds.

Magicians have made a living for centuries on the thought process at work in the intelligent design movement: If you see something you do not understand, it must be supernatural.

Harry Houdini wrote in one of his books that actress Sarah Bernhardt saw his performance one night and asked him afterward, in all seriousness, if he could bring back the leg she had lost to disease.

No, he told her gently, he could not.

The desire to believe is very strong. The gaps in human knowledge are very great. But it simply does not follow that what we do not understand must therefore be supernatural and forever beyond our understanding.

To suggest such a thing to children, in science class, is to destroy their confidence in the power of rational thought to solve problems.

Think that all the way through.

If rational thought cannot be relied upon to solve problems, there is no reason to be educated. Why study math and science when your teachers can do no better than "Then a miracle happens" to explain the history of the world in front of them?

Rational thought is a human being's tool of survival. If we don't think for ourselves, we have to follow what someone else tells us to do.

Think that all the way through.

To undermine children's confidence in their own minds is to set them on the path to a lifetime of victimization. Thank goodness children don't pay attention in school.


Copyright 2005

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Congressman John Murtha does his job

Why did the Democrats run John Kerry for president when they had John Murtha?

Rep. John Murtha, Democrat of Pennsylvania, stepped forward Thursday and did what the U.S. Constitution says he should do. He questioned whether the United States ought to have troops deployed overseas in a military engagement.

In 1793, James Madison wrote this:

In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.

and this:

Every just view that can be taken of this subject, admonishes the public of the necessity of a rigid adherence to the simple, the received, and the fundamental doctrine of the constitution, that the power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing congress, whenever such a question seems to call for a decision, is all the right which the constitution has deemed requisite or proper.

President Bush has argued that a democratic government in Iraq is key to U.S. national security. He may be right. That doesn't change the fact that the Constitution does not give him the power to decide how long U.S. troops may be deployed in the effort to achieve that goal. The power belongs to Congress.

Because the Constitution does not give the president the power to take the country to war, presidents who usurp the power to take the country to war must do so by persuading or intimidating Congress into backing their policy.

This is where things can go terribly wrong.

Presidents who believe they are pursuing the correct policy in the correct way are sorely tempted to do whatever is necessary to keep public support on their side. Everything depends on maintaining the ability to pressure Congress into staying onboard.

Struggling to achieve what they may truly think is the greater good, presidents have a strong incentive to conceal unfavorable facts. During the Vietnam War, the leak of the Pentagon Papers painted a picture that President Nixon hoped the public would never see.

Secrecy, spin, intimidation, the demonizing of opponents, the undermining of critics, these are all signs that the constitutional power to decide when the country goes to war has been usurped by the president. By challenging and debating the president's Iraq policy, the Congress does not threaten the national security of the United States. The Congress is the national security of the United States.


Copyright 2005

Source notes:

James Madison, Letters of Helvidius, in Writings, ed. G. Hunt (New York, Putnam, 1900-1910) vol. 6, p. 174, quoted in Raoul Berger, Executive Privilege: A Constitutional Myth (Harvard Press, 1974) p. 65, 68-9.

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The two-cent stamp tax

The Postal Service's Board of Governors announced last Monday that the price of a first-class stamp will go up two cents to thirty-nine cents effective January 8.

But there was something peculiar in their statement. Instead of the usual moaning about higher costs and declining revenues, the reason given for the price hike, according to the Associated Press story of November 15, was this:

The increase fulfills a requirement, passed by Congress in 2003, that the Postal Service establish a $3.1 billion escrow account. Congress is to determine later how to spend that money. The Postal Service said without the mandate it would not have had to raise rates next year.

That means the two-cent increase is actually a new tax. The Postal Service will collect it from unsuspecting consumers who will naturally assume that the price of stamps reflects the cost of delivering mail, when actually the money will go to set up a $3.1 billion Congressional slush fund that can be used to offset the deficit in the looking-glass world of Washington bookkeeping.

If I'm not mistaken, there is also an airport trust fund, a highway trust fund, and a Social Security trust fund that similarly collect extra money. These buckets of cash create a giant blob of federal assets on the balance sheet, making the deficit look smaller than it truly is. In other words, as long as there's a federal deficit, these trust funds are like a house with all the equity borrowed out of it. It only looks like an asset.

These things should be recognized for what they are. They're an extra tax on air travelers, an extra tax on gasoline buyers, and an extra tax on salaries both for the employers who pay them and the employees who receive them.

And now there's a two-cent tax on stamps to keep them company.


Copyright 2005

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Barry Bonds' big asterisk

It's been said that in a battle of liars, the first liar doesn't stand a chance.

Major League Baseball tried to convince everybody that its steroids-testing policy was working and all those shattered home-run records were falling due to nothing but hard work in the weight room.

Then Congress tried to convince everybody that the U.S. Constitution gave it the power to require steroids testing in professional sports with lifetime bans for violators.

In this game of Liars' Poker, baseball lost. Not because the extraordinary lawyers who represent the owners and players were bluffed, but because Congress came to the table with extra cards: the ace of threatening to repeal baseball's valuable and unique anti-trust exemption, a flush of tax laws that can penalize owners while nobody else notices, and the full house, public opinion.

What could Major League Baseball do? Point out that Congress doesn't have the power to require drug testing in professional sports?

No, baseball couldn't do that, but we can.

The Constitution limits the power of the federal government. Congress is not permitted to wander over the national landscape, picking out conduct to criminalize. The power to do that kind of legislating was left to the states, or rather, retained by the states in a tight-fisted grip when the Constitution was hammered out in 1787.

The Constitution gives Congress the power to regulate interstate commerce, but that is not an unlimited power to regulate everything everywhere, as the Supreme Court told Congress recently when it struck down federal laws dealing with violence against women and guns near schools.

This is not to say that Congress never gets away with usurping state powers. The federal ban on marijuana is a flagrant violation of the Tenth Amendment, but there aren't too many elected officials who will stand up in front of a camera and make that case. Regardless, anyone who says Congress has the power to ban marijuana that is grown, distributed and used within state borders will have to explain why Prohibition required a constitutional amendment. Read more about it in Marijuana, Prohibition, and the Tenth Amendment at www.SusanShelley.com.

Still, Congress would have an uphill battle persuading the Supreme Court that it has the constitutional authority to pass a law requiring drug tests and penalties for employees in a privately-owned business, especially a law that applied to one specific private business and not any other. "It's for the sake of the children" is not a constitutional argument. It's the language of a federal power grab that is regularly used to confiscate your money and infringe on your freedom.

Now you know why Senator Jim Bunning, baseball Hall of Fame member and chief sponsor of the Integrity in Professional Sports Act, looked so relieved Tuesday when Major League Baseball announced that it had reached agreement on a new, tougher drug-testing policy.

"This is what I had hoped for all along," Senator Bunning said, "for the two private parties to come to an agreement on their own without Congress having to do it for them."

Senator Bunning knows the embarrassment he has avoided: Barry Bonds' home-run record staying on the books while his drug-testing law is struck out.


Copyright 2005

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Samuel Alito: Telling 'em what they wanna hear

Imagine if everything you ever said in a job interview was made public, simultaneously, on national television. If you promised a little more than you intended to deliver, or crossed your fingers when professing undying loyalty to the goals of your employer, all the while thinking no one would ever find out, it certainly would be a rude surprise to wake up and read your conflicting statements in the New York Times.

Of course, you probably weren't applying for a job in the Reagan administration or a seat on the U.S. Court of Appeals. If you had been, you would have known that questionnaires for those kinds of jobs are part of the public record.

Judge Samuel Alito told Sen. Dianne Feinstein today that when he wrote on a 1985 application to become a deputy assistant attorney general in the Reagan administration that there is no constitutional right to abortion, he was "an advocate seeking a job." This is from the AP account of Senator Feinstein's description of their meeting today:

"He said first of all it was different then," she said. "He said, 'I was an advocate seeking a job, it was a political job and that was 1985. I'm now a judge, I've been on the circuit court for 15 years and it's very different. I'm not an advocate, I don't give heed to my personal views, what I do is interpret the law.'"

Don't be distracted by reassuring bromides: Judge Alito's 1985 statement that "the Constitution does not protect a right to an abortion" is not a statement of his personal views on abortion, but a reasoned judgment interpreting the basic law of the United States. His personal views on whether abortion is right or wrong cannot even be determined from that statement. (You can ask his mom, though, she'll tell you.)

Judge Alito also tried his new story on another Democrat:

Sen. Jeff Bingaman, D-N.M., said he and Alito also talked about the 1985 statement during their early meeting. "He said it was 20 years ago," said Bingaman, who added that Alito also said he has respect for the precedent set by the landmark 1973 Roe vs. Wade decision, which established abortion rights.

Judge Alito is clearly trying to tell the Democrats on the Senate Judiciary Committee what they want to hear: that he is not committed to overturning Roe v. Wade. But what is he telling those Republicans who want to hear the opposite?

"This man is a conservative," said Sen. Saxby Chambliss, R-Ga., after meeting with Alito. "He's been a conservative all his life, and in 1985 when he was applying for a job, he reiterated that fact in his application."

Separately, Judge Alito told the Senate Judiciary Committee last week that he was "unduly restrictive" in 1990 when he promised the Judiciary Committee he would not participate in cases involving Vanguard, Smith Barney, or his sister's law firm if confirmed for a seat on the 3rd Circuit Court of Appeals.

Judge Alito later participated in a case involving Vanguard and a case in which McCarter & English, his sister Rosemary's law firm, represented one of the parties.

There may have been no conflict of interest in those cases and no impropriety of any sort. That's a separate issue from whether in 1990 Judge Alito was so anxious to please the Judiciary Committee and get confirmed that he told them anything they wanted to hear, and whether he did that when he applied for a job in the Reagan administration in 1985, and whether he's doing that again right now.


Copyright 2005

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Samuel Alito in 1985: No constitutional right to abortion

The Washington Times reports today that Judge Samuel Alito filled out an application to become deputy assistant to Attorney General Ed Meese in 1985 and said he personally believed very strongly that "the Constitution does not protect a right to an abortion."

Now we'll see if Judge Alito chooses to agree with himself, disagree with himself, or obfuscate the question with some blathering constitutional doubletalk.

Now we'll see if the majority of Americans who support privacy rights have enough clout in their dialing fingers to frighten moderate Republicans into permitting a filibuster of the nomination.

Now we'll see if anybody in the country notices that this is no way to run a railroad.

Take five minutes and read "Why There is No Constitutional Right to Privacy, and How to Get One." You might also be interested in "How the First Amendment Came to Protect Topless Dancing."


Copyright 2005

Bill Clinton corrects the record

Bill Clinton took a break from fundraising for AIDS, tsunami victims, hurricane victims, childhood obesity, breast cancer and his presidential library to speak Thursday at a Hofstra University conference examining his presidency.

The former president was blistering mad over comments made by historian Douglas Brinkley in a newspaper interview. Brinkley said Clinton would be considered a great president if not for the fact that he was impeached.

"I completely disagree with that," Clinton said. "You can agree with that statement, but only if you think impeachment was justified. Otherwise, it was an egregious abuse of the Constitution and law and history of our country."

The Associated Press account quotes the former president:

"Now if you want to hold it against me that I did something wrong, that's a fair deal," he said. "If you do that, then you have a whole lot of other questions, which is how many other presidents do you have to downgrade and what are you going to do with all those Republican congressmen, you know, that had problems?"

There it is, a gemstone of Clintonism, the sparkling essence of the man who for eight years made it possible for comedy writers to work half days.

It's all there, the rapid response attack, the conversational beginning that suggests reasonable people can disagree and the quick shift to a threat if they do. The appearance of a humble confession and the stabbing attack on the moral conduct of everyone else, dead or alive, in order to prove the victimhood, the martyrdom, the heroic, stoic courage of the man who was singled out for impeachment.

He's Nelson Mandela, unzipped.

Just for the record, President Clinton's impeachment resulted from a grand jury investigation into whether he lied and tampered with witnesses and generally obstructed justice for an Arkansas woman named Paula Jones. He was not impeached for having an office fling with a young White House intern named Monica Lewinsky.

Paula Jones, you may remember, sued the president and his aides for defamation after she denied having an affair with him in Arkansas, a claim made by Arkansas state troopers in an interview in the American Spectator. Paula Jones, then a married woman, said that what actually happened was very different. She was a young state employee working at a government conference in a Little Rock hotel when then-Governor Clinton sent his state trooper bodyguards to her table to tell her that the governor would like to see her. She said she went with them to the hotel suite where she thought the governor was conducting state business, and when the door closed and she was alone with him he complimented her appearance and came on to her. Then he dropped his pants and asked for oral sex.

Like many young female employees who don't want to look for new jobs, Paula Jones didn't make a formal complaint about it. But she told enough of her friends and family members that when the American Spectator article came out telling the story of "Paula" who was one of the governor's "girlfriends," she went public and told what had really happened in that hotel room.

White House ally James Carville made a few foul comments suggesting that she was trash, a liar, and a woman who was chasing a twenty-dollar bill through the dirt of a trailer park.

Paula Jones sued.

The law allows plaintiffs in cases of this type to attempt to prove the truth of their charges by establishing that what happened to them is part of a pattern of conduct.

You may safely assume that President Clinton knew this. For reasons only he knows, he refused to settle the Paula Jones lawsuit, even after he was re-elected. For reasons only he knows, he decided to let the discovery process go forward.

With Monica Lewinsky's knee-prints still on the carpet in the Oval Office study, President Clinton decided he could withstand or outlast Paula Jones' lawyers and their subpoenas seeking information about his "pattern of conduct."

Was he ever angry when they didn't fold up and go away. He attacked her lawyers as part of a right-wing cabal out to destroy his presidency, a charge which, even if true, explains why they were suing but not why they eventually prevailed.

The grand jury investigation, and the impeachment, resulted from a long list of misleading statements from the president and statements from witnesses that they were pressured to sign false affidavits and to lie under oath to the grand jury. Although Monica Lewinsky never did say under oath that she was told to lie, the picture that emerged was ugly. Bill Clinton had a pattern of hitting on women who were in some way subordinate to him -- he was in a position to get Paula Jones and Monica Lewinsky fired, and White House volunteer Kathleen Willey came to him asking for a job -- and then relying on the intimidation factor to make sure they never said a word about it. If he miscalculated in his selection and the young women talked, he stood ready to supply his aides with talking points to destroy their credibility.

You can look up the statements from the Clinton team going back years. Gennifer Flowers was a liar. Paula Jones was trailer trash. Monica Lewinsky was a stalker. Whatever these wild-eyed women were saying, none of it was true.

It was all true.

You can make the argument that philandering is nobody's business and sexual harassment isn't all that terrible and none of these women should have been allowed to hamper a president who was trying to do great things for the country and the world.

You can make the argument, because I'm certainly not going to do it.

I'm going to make the argument that we should take our laws seriously or we should take them off the books. If we don't think it should be a crime to lie about sex, under oath, to a grand jury, we should change the law to say so. If we don't think "pattern of conduct" evidence has any place in a courtroom, we shouldn't allow it in a courtroom. If we think sexual harassment is a perk of the job for men in positions of power, we should stop pretending that we don't.

But what we shouldn't have is one kind of law enforcement for the people who are in government and another kind for the people they are governing. That would be "an egregious abuse of the Constitution and law and history of our country."


Copyright 2005

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The Marriage Protection Amendment of November 2006

The morning after the Republican party lost the governor's races in New Jersey and Virginia, one day after the Wall Street Journal/NBC News Poll showed that Republicans have lost their edge with voters on the issues of taxes, spending, immigration and foreign policy, Senate Judiciary Committee Chairman Arlen Specter stepped forward to save the Republican majorities in the House and Senate from destruction in next year's congressional elections.

He cast the deciding yes vote allowing the Marriage Protection Amendment to escape from Kansas Senator Sam Brownback's subcommittee on the Constitution and move to the full Judiciary Committee, where prominent Democrats will be forced to take a divisive and high-profile stand on the generally unpopular issue of same-sex marriage.

Senator Specter said he opposes the amendment. He told reporters he voted for it because he felt it shouldn't "be bottled up" in committee.

This is known in baseball as taking one for the team.

Senator Sam Brownback has sponsored the federal marriage amendment, according to his Senate web site, because "pro-family advocates are concerned that the traditional definition of marriage could be in jeopardy due to activist judicial rulings, such as the recent decision by the Massachusetts Supreme Judicial Court to allow gay marriages in that state."

It's true, by the way, that the only sure way to ban gay marriage in the United States is with a constitutional amendment. Read "Judicial Activism and the Constitutional Amendment on Marriage" at www.SusanShelley.com for details and source notes.

Republicans apparently believe they can rally their base and split the Democrats if they make gay marriage an important and prominent issue in the 2006 congressional elections. The swing voters who decide close elections may forget about taxes and spending and immigration and foreign policy when somebody tells them their seven-year-old's school reading list will include "Daddy's Roommate."

Pretty cynical. It will probably work.


Copyright 2005

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Confessions, abortions, and the startling case of the Erie Railroad Company

Would Supreme Court nominee Samuel Alito vote to overturn Roe v. Wade?

It's the question that cannot be answered.

In confirmation hearings set for January, we can expect to hear Judge Alito promise to follow the Constitution and show a deep respect for precedent.

A lot of good that does us.

The problem is, there is no right to privacy in the Constitution. You can tell this is true because if there were a right to privacy in the Constitution, senators wouldn't ask Supreme Court nominees if they believe there is a right to privacy in the Constitution. Nobody asks them if they believe slavery is unconstitutional or if they believe women have the right to vote.

So the question is whether the nominee, once confirmed, would follow the Constitution as written or accept Roe v. Wade as a binding precedent that cannot be overturned.

We will be hearing much about stare decisis, Latin for "let the decision stand," the doctrine that judges are bound by precedent and not free to roam, as someone once said, "in the trackless fields of their own imaginations."

Five years ago the U.S. Supreme Court reconsidered its 1966 landmark Miranda v. Arizona decision, in which the Court had ruled that police officers were required to inform suspects of their rights before questioning them. Writing for the majority in the 2000 Dickerson v. United States case, Chief Justice William Rehnquist said this:

While "'stare decisis is not an inexorable command'", particularly when we are interpreting the Constitution, "even in constitutional cases the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some 'special justification.'"

We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.

Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented from this decision. Justice Scalia wrote:

Far from believing that stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated decision--especially a celebrated decision--that has come to stand for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States. This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people.

You see the problem.

Even longstanding precedents can be overturned if the justices believe they were decided incorrectly.

"I see little harm in admitting that we made a mistake," Justice Scalia wrote in his Dickerson dissent.

He's not the first Supreme Court justice to take that view. In the 1938 case of Erie Railroad Company v. Tompkins, the Court overturned the 1842 case of Swift v. Tyson, even though the courts had been applying its legal doctrine for nearly a hundred years. Justice Louis Brandeis wrote for the Court,

[T]he doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, 'an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.'

Privacy rights in the United States may be hanging by a thread, but stringing up the president's Supreme Court nominees will not solve the problem.

We're in this situation because for decades we have allowed Supreme Court decisions to substitute for constitutional amendments.

When the right to privacy is secured by a constitutional amendment, it will really exist. Only then can we can stop asking Supreme Court nominees if they believe in it.

Read more about it in "Why There is No Constitutional Right to Privacy, and How to Get One" at www.SusanShelley.com.


Copyright 2005

Source notes:

The "trackless fields" quotation is from James Kent (1763-1847), who was, among other things, the first professor of law at Columbia University.

Dickerson v. United States, 000 U.S. 99-5525 (2000). In the first paragraph of the Rehnquist quotation, the Chief Justice cited State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) [quoting Payne v. Tennessee, 501 U. S. 808, 828 (1991)], Agostini v. Felton, 521 U. S. 203, 235 (1997), United States v. International Business Machines Corp., 517 U. S. 843, 856 (1996) [quoting Payne, supra, at 842 (Souter, J., concurring) (in turn quoting Arizona v. Rumsey, 467 U. S. 203, 212 (1984))].

Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938). The "respectable array of opinion" quotation can be found at page 79.

Swift v. Tyson, 40 U.S. (16 Pet.) 1 (1842). In his 1950 book American Constitutional Decisions, law professor Charles Fairman, who taught Wiliam Rehnquist at Stanford, wrote of the Swift v. Tyson era, "Throughout that long period the federal judiciary, as we now see it, encroached upon the authority of the several states, producing a considerable dislocation in our federal system." (Revised Edition, p. 170)

Revenge of the Reserves

The ABC News/Washington Post poll released Sunday says the percentage of Americans who approve of the job President Bush is doing has fallen to 39 percent, the lowest approval rating of his career. In a not-unrelated story, six more U.S. soldiers were killed by roadside bombs in Iraq Monday as the number of U.S. deaths continued its grim climb past the two thousand mark.

The president is trying hard to shore up the country's waning support for the military engagement in Iraq. In his Saturday radio address, he said, "The best way to honor the sacrifice of our fallen troops is to complete the mission and win the war on terror."

But "terror" will never put on a dress uniform and surrender aboard the USS Missouri. This is a war with no end. And the way the president has chosen to fight it is now beginning to look like a cure that is worse than the disease.

President Bush is about to learn what Lyndon Johnson and Richard Nixon learned, or maybe didn't -- the American people have a very limited tolerance for involuntary military service.

Back on September 29, 2003, USA TODAY published a story with the headline "Army Reserve fears troop exodus." The paper reported that its editorial board met with Lt. Gen. James Helmly, chief of the 205,000-member Army Reserve:

Helmly described the war on terrorism as an unprecedented test of the 30-year-old all-volunteer military. Historically, he said, the National Guard and Reserve were designed to mobilize for big wars and then bring soldiers home quickly.

Today, he said, they have "entered a brave new world" where large numbers of troops will have to be deployed for long periods.

Counting training time and yearlong tours in Iraq, some Army Reserve soldiers could be mobilized for 15 months or more.

That was two years ago, and there's no end in sight.

Like a New Orleans levee, the Army Reserve is collapsing under the force of a storm it wasn't built to withstand. On December 20, 2004, Lt. Gen. Helmly wrote a memo to Army Chief of Staff Gen. Peter Schoomaker, reported by the Associated Press on January 5, 2005:

"The purpose of this memorandum is to inform you of the Army Reserve's inability under current policies, procedures and practices ... to meet mission requirements associated with Operation Iraqi Freedom and Enduring Freedom," Helmly wrote, using the military's names for the Iraq and Afghanistan wars.

"The Army Reserve is additionally in grave danger of being unable to meet other operational requirements," including those in classified contingency plans for other potential wars or national emergencies, "and is rapidly degenerating into a 'broken' force," Helmly wrote.

The crisis isn't limited to the Reserves. The AP further reported:

Under an order known as "stop loss," soldiers on active duty are prohibited from leaving the service until their tours end.

It's not an all-volunteer Army if you won't let soldiers leave when their enlistments are up. The president should count himself lucky that the FTC doesn't regulate recruitment ads.

People who signed up for the National Guard and Reserves prior to the invasion of Iraq did not expect that they would be deployed repeatedly for a year or more in an overseas war. Neither did their families. Neither did their employers.

Perhaps those expectations were unrealistic or contradicted by the fine print of the contract, but that's not going to help the president in the polls.

For every reservist who is deployed in Iraq, subjected daily to life-threatening dangers, there is a good-sized group of people back home who are pretty upset about it, and a bigger group of friends and acquaintances who are worried too.

It's possible that this exponential effect is accelerating the president's meltdown in the polls. If he hadn't plucked so many people out of their regular lives and away from their jobs and families, he might have gotten away with the usurpation of Congress' constitutional power to decide when the country goes to war and when it doesn't.

The framers were very specific: the role of commander-in-chief does not include the power to take the country to war.

In 1793, just a few years after the Constitution was ratified, James Madison wrote, "In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department." Madison wrote:

Every just view that can be taken of this subject, admonishes the public of the necessity of a rigid adherence to the simple, the received, and the fundamental doctrine of the constitution, that the power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing congress, whenever such a question seems to call for a decision, is all the right which the constitution has deemed requisite or proper.

Now he tells us.


Copyright 2005

Source notes:

Associated Press, "Chief of Army Reserve criticizes policies" by Robert Burns, January 5, 2005

James Madison, Letters of Helvidius, in Writings, ed. G. Hunt (New York, Putnam, 1900-1910) vol. 6, p. 174, quoted in Raoul Berger, Executive Privilege: A Constitutional Myth (Harvard Press, 1974) p. 65, 68-9.

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