RUTHFULLY YOURS

As we write, the two-hundred-and-thirtieth anniversary of the ratification of the Constitution of the United States just passed. The holiday, celebrated on or about September 17 (depending on whether that date falls on a weekend), was known as “Citizenship Day” until 2004, when Congress officially renamed the commemoration “Constitution Day and Citizenship Day.” The new law stipulated that all federally funded educational institutions, and indeed all federal agencies, provide additional programming on the history and substance of the Constitution.

In that spirit (although The New Criterion receives no federal funding), we wanted to offer a few brief observations about that remarkable document and its contemporary significance.

The U.S. Constitution is, by a considerable measure, the oldest written constitution in the world. (Only half of the world’s constitutions make it to their nineteenth birthday.) It may also be the shortest. The main body of the text, including the signatures, is but 4,500 words. With all twenty-seven Amendments, it is barely 7,500 words. The Constitution of the European Union, by contrast, waddles to the scale at 70,000 words—an adipose document the girth of a longish book.

The U.S. Constitution is the oldest written constitution in the world. It may also be the shortest.

What really distinguishes the U.S. Constitution, however, is its purpose. The Framers— James Madison first of all, but also John Adams, Thomas Jefferson, and others—were well acquainted with the effects of arbitrary and unaccountable state power courtesy of the depredations of George III. Accordingly, they understood the Constitution prophylactically, as a protection of individual liberty against the coercive power of the state. “In framing a government which is to be administered by men over men,” as Madison noted in Federalist 51, “the great difficulty lies in this: you must first enable the government to control the governed”—that is hard enough. But then “in the next place [you must] oblige it to control itself.”

As many observers have noted—though perhaps not so many among the governing class—the U.S. government has, in recent decades, done a better job at the former than at the latter.

Part of the problem is the proliferation of laws. The U.S. Constitution may be admirably compact. But the U.S. Code of Laws runs to fifty-three hefty volumes. And then there are the thousands of Statutes at Large representing the blizzard of Acts and Resolutions of Congress. There is a great deal to be said, we think, for proposals to include an annual or biennial sunset provision in laws so that those not deliberately renewed would lapse.

But the proliferation of legal instruments is only part of the problem. Perhaps even more serious is the proliferation and institutionalization of administrative power that operates outside the direction and oversight of Congress, the sole body invested by the Constitution with legislative power. As the legal scholar Philip Hamburger has noted, the explosion in the number of quasi-governmental agencies and regulations over the last few decades has become “the dominant reality of American governance,” intruding everywhere into everyday economic and social life. As if in explicit violation of the second part of Madison’s observation about the difficulty of framing a government, the growth of what has come to be called “the administrative state” seemingly flouts the obligation of state power to control itself.

In our view, the question of how best to deal with the enervating and liberty-sapping effects of the administrative state should occupy a prominent place on the agenda of our national conversation. Doubtless a first step is rhetorical: to bring about a more broad-based and vivid recognition of the extent of the problem. From time immemorial, complacency (often abetted by simple cowardice) has been a great enabler of despotism (and the reality of the administrative state is nothing if not despotic). Challenging that complacency with appropriate bulletins from the front is the first order of business. It is a task that—living up to Madison’s quiet phrase “great difficulty”—will be as protracted as it is important.

But in the context of Constitution Day, we wanted to sound a note of homage as well as admonition. To this end, we would like to remind readers of a document from America’s founding generation that is well known without quite being, we suspect, known well: George Washington’s Farewell Address of 1796.

A first draft of this speech was completed with the help of James Madison in 1792 but was shelved when Washington embarked on a second term. As that drew to a close, Washington once again turned his mind to valedictory remarks and engaged Alexander Hamilton as his principal editor. Probably the most famous part of the six-thousand-word address comes towards the end, when Washington warns the country against “interweaving our destiny with that of any part of Europe, entangl[ing] our peace and prosperity in the toils of European ambition, rivalship, interest, humor, or caprice.” It is folly, Washington observes, for any nation to look for “disinterested favors from another.”

The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith. Here let us stop. Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns.

It has become a sort of reflex to object to the National Football League’s players’ bended knee/sitting through the National Anthem—while also conceding that their complaints have merit.

But do they?https://amgreatness.com/2017/10/02/the-tragic-incoherence-of-the-nfl-protests/

To answer that question, one would have to know precisely what the protests are about. But so far the various reasons advanced are both confused and without much merit. That is why the players will eventually stand for the anthem before their tragic incoherence loses them both their fans and their jobs with it.

Inordinate Police Brutality Against the African-American Community?
While there certainly have been a large number of well-publicized shootings of African-American suspects, statistics do not bear out, as alleged, a supposed wave of police violence against black unarmed suspects. Is the anger then directed at regrettable though isolated iconic incidents but not at prevailing trends?

White police officers are more than 18 times more likely to be shot by African-Americans than white police officers are to shoot unarmed black suspects. Does anyone care?

In absolute numbers, more white suspects were shot yearly by police than were black suspects. Given respective crime rates and the frequency of relative encounters with police, black suspects were not statistically more likely to be victims of police violence than were whites.

Given the topics of race, crime, and violence, the frequency of black-on-white crime versus white-on-black crime—depending on the particular category—while comparatively rare, is still widely disproportionate, by a factor of 7 to 10.

Roughly 40-50 percent of all reported U.S. arrests for various violent crime involve teen or adult African-American males, who make up about 4-5 percent of the population. Blacks are well over 20 times more likely to be shot and killed by other blacks than by police officers.

The Left often does not pay much attention to such facts—though it grows angry when others do. Or to the extent progressives acknowledge these asymmetries, they contextualize the alarming frequency of inordinate black male crime, and the police response to it, by citing the legacy of slavery and claiming contemporary racism as well as police and judicial bias.

But such rationalization is largely academic.

The general public—and by extension the NFL fan base of all racial backgrounds—feels these imbalances to be true and, in their own lives—fairly or not—make adjustments about where they live, put their children in school, or travel. The antennae of wealthy, virtue-signaling white liberals are the most sensitive to crime disparities; the latter are also the most likely to have the desire and wherewithal to navigate around them. The makeup of elite neighborhoods and prep schools of Washington, D.C., is a testament to that unspoken fact.

It is certainly true that black males, regrettably, may be watched or stopped by police with greater frequency than Latino, Asian, or white males tend to be; but arguably not in a disproportionate fashion when seen in light of the data of those arrested and convicted of crimes.

Such proclivities, while again regrettable, are due less to racism than to statistically based preemptive policing—or statistically-based (and therefore rational) police fears.

Colin Kaepernick’s protests allegedly focusing on inordinate racially biased police brutality had no statistical basis in fact. To the extent his argument was logically presented, the irate NFL fan base rejected it.

Racial Disparity Attributable to Institutionalized Prejudice?
Were the players then frustrated about general racial disparities in landscapes beyond their own privileged positions? That larger question of why African-Americans have not yet statically achieved the same level of education, income, and family stability as the majority is more complex.

As of now, little is known about what caused Stephen Paddock to murder some 58 innocent people in Las Vegas Sunday evening. It sits before us as what President Trump described in a statement as “an act of pure evil.”

More information may emerge in coming days, such as how Paddock could have smuggled so much weaponry into the Mandalay Bay Resort and Casino. But currently there is nothing to link this killer to the kinds of causes or illnesses associated with other recent mass murderers. There is no evident connection to Islamic terrorists or any extremist group, no suggestion of disturbed behavior, no criminal record, no fights with neighbors or co-workers. The only oddly noteworthy fact is that his father was once on the FBI’s most-wanted list.

We always search for reasons when this happens, but no pretext or explanation is sufficient to explain why a person commits mass murders such as this one. Not Omar Mateen’s slaughter of 49 people at an Orlando nightclub last year or Anders Breivik’s slaughter of 77 people in Norway in 2011.

We all live daily lives that involve some degree of disputes, conflicts and animosities. Most remain inside civilizing constraints. Some recesses of the individual human brain, however, can harbor impulses that are simply malign and sometimes produce senseless murder.

Americans have spent more time recently than they would ever care to trying to absorb moments of terrifying, overwhelming destruction. People in Texas, Florida, Puerto Rico and the Caribbean islands will spend years rebuilding lives and communities torn apart by several hurricanes. It can sometimes seem too much.

Think, though, of the failed attempt at mass murder in June by a lone gunman who sprayed bullets into a Congressional baseball game in suburban Virginia. Last Thursday, Rep. Steve Scalise, severely wounded by the gunman, returned to the House of Representatives and delivered an eloquent tribute to the acts of valor that day by police officers and colleagues.

Amid the carnage of Las Vegas and the hurricanes’ destruction, a great many similar acts of selfless courage occurred to save the wounded or to minimize the loss of life. President Trump called it “the ties of community and the comfort of our common humanity.” Against the evil of a Stephen Paddock, that undefeatable reality is worth remembering.

In Las Vegas, more than 50 people are dead, and perhaps hundreds of others have been injured, in the deadliest mass-shooting attack in American history. Stephen Paddock, a 64-year-old Nevadan believed to be the lone gunman, fired upon attendees of the Route 91 Harvest music festival from the 32nd floor of the Mandalay Bay Resort across the street. He killed himself before police reached him.

As we begin to process what has happened, it is important to remember — as we have learned from too many of these incidents — that initial reports are often wrong. We must wait for investigators and responsible journalists to do their work before we can have a clear picture of what happened.

On that score, news reports this morning are already referring to this atrocity as a “terrorist attack.” And that was even before the Islamic State jihadist organization claimed responsibility for the attack, a claim that has just beenreported by the Washington Examiner. ISIS offered no proof of its assertions that Paddock was a recent convert to Islam and had carried out the massacre on the terror network’s behalf. Again, we cannot assess it until the investigation unfolds.

Clearly, Paddock did terrorize a community, particularly an event attended by 22,000 people, at least hundreds of whom he put in mortal peril.

Does that make him a terrorist? Let’s put the unverified ISIS claims aside. If Paddock was a lone gunman acting independently and not under the influence of any organization or ideology, the answer to the question may depend on which law we apply — the federal penal code or Nevada’s criminal law.

We’ve recently had occasion to consider federal terrorism law in connection with a discussion over whether the violent “Antifa” movement should be legally designated as a terrorist organization. Under the U.S. penal code (section 2331(5) of Title 18), a violent act meets the definition of “domestic terrorism” if the actor was seeking:

(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.

Many (perhaps most) mass killings will meet this test. Plainly, shooting at a crowd is an act of intimidation. But as the word “coerce” (also in that first clause) implies, the federal terrorism statute speaks to intimidation or coercion of a civilian population toward some identifiable objective. This kind of intimidation is easy to make out when the aggressor is a jihadist, whether associated with an outfit such as ISIS or merely “inspired by” sharia-supremacist ideology (which seeks the imposition of sharia law and to force changes in American policy). Establishing such intimidation is also straightforward when a group with a radical political agenda, such as Antifa, is involved. It is more difficult, though, when we are dealing with a lone gunman.

The start of a new Supreme Court term is a good moment to note some under-reported news: President Trump is rapidly remaking the federal appellate and district courts, with highly qualified nominees who fulfill his campaign promise to pick “constitutional conservatives.”

The White House announced its eighth batch of judicial nominees on Thursday, including four excellent choices for the Fifth Circuit Court of Appeals. They include a pair of Texans: Don Willett, who is now on the Texas Supreme Court and is well known for his witty Twitter feed; and James Ho, a Gibson, Dunn partner in Dallas who clerked for Justice Clarence Thomas and was Texas solicitor general.

The other two Fifth Circuit nominees have notable legal achievements to their credit. Stuart Duncan was solicitor general of Louisiana and general counsel for the Becket Fund for Religious Liberty. He was counsel of record in Burwell v. Hobby Lobby Stores, the landmark 2014 decision allowing closely held companies to be exempt from regulations they object to on religious grounds.

Kurt Engelhardt is chief judge for the federal district court for eastern Louisiana. In 2013 he wrote a withering 129-page opinion documenting misconduct by the Justice Department’s Civil Rights Division and the U.S. Attorney in prosecuting New Orleans police. Prosecutors attempted to inflame the potential jury pool against the officers with prejudicial public comments, including the use of a fake name on the website of the Times-Picayune. Justice appealed, but Judge Engelhardt was upheld by the Fifth Circuit he will join if he’s confirmed.

The speed of the nominations and the quality of the nominees is a result of the close ties between White House judicial vetters and the Federalist Society that is a national clearinghouse for conservative legal talent. Judicial nominations are arguably the most successful part of the Trump Presidency.

By our count—and we may have missed a name or two—Mr. Trump has made 18 nominations to appellate courts, 39 to district courts and three to the U.S. Court of Federal Claims. The Senate has confirmed only four for the appellate courts as Democrats use every possible delaying tactic. They’re even trying to disqualify Amy Coney Barrett, a nominee for the Seventh Circuit, because she’s an “orthodox Catholic,” as Senator Dick Durbin put it in a question at a Senate hearing.

With confirmation politics increasingly polarized, Mr. Trump and Republicans are wise to move quickly to take advantage of this moment of Senate and White House control. If Democrats take the Senate in 2018, Chuck Schumer will try to block the confirmation of any conservative nominee. Mr. Trump deserves more credit than he’s getting for his judicial-nominating operation.

Hurricane Katrina taught the Federal Emergency Management Agency some harsh lessons in 2005. FEMA used what it learned to prepare and respond better when Harvey and Irma hit the U.S. mainland earlier this year. Now Maria has taken the bureaucrats back to school in Puerto Rico, and they’re not getting passing grades.

Ahead of the Category 4 storm that hit with 155 mile-an-hour winds on Sept. 20, the FEMA team in Puerto Rico said it was ready. But a week later much of the island was still in dire need of food, water and fuel—the basics of humanitarian relief.

The most immediate needs centered on the sick and elderly. About 97% of the island lost electricity in the storm. Diesel-run generators were supposed to fill the void in hospitals and dialysis centers and provide refrigeration for medicines like insulin. But the diesel fuel did not arrive, and by midweek family members began to panic. Tearful Puerto Ricans begged for help.

FEMA will no doubt learn again from Maria. But so too should the rest of us, about the folly of relying on government to deal with a disaster even as predictable as the aftermath of a hurricane.

The only thing more certain than Maria’s devastation has been the rush to politicize it. As video of waist-deep water, washed out highways, splintered roofs, and uprooted trees scattered across the island hit American living rooms, Donald Trump’s adversaries and their media cheerleaders painted the president a heartless Anglo snob.

Yet the failures in Puerto Rico have not been due to a lack of federal attention. Rather the local FEMA team failed to execute fundamental aspects of emergency operations. Whether that’s because it was overwhelmed by the widespread devastation or because of bureaucratic incompetence can be debated. But efforts to chalk up the crisis to mainlander disregard for life are dishonest.

Mr. Trump’s big mistake has been his handling of the Jones Act, which mandates that shipping from the mainland to the island use only American-built-and-crewed vessels. First he said he would not suspend it as he did for Texas after Harvey and Florida after Irma. “A lot of people that work in the shipping industry . . . don’t want [it] lifted,” he said. Well, duh. A lot of people don’t like competition. But that’s hardly a good argument for blocking it.

Under pressure, he finally said he would suspend the Jones Act for Puerto Rico—but only for 10 days, a meaningless gesture.

For more than a week the island’s ports have been piled high with containers waiting to be hitched up to cabs and their contents delivered to supermarkets, restaurants, home-building supply stores and medical centers. In other words, much of the merchandise needed in an islandwide triage is already on Puerto Rican docks. CONTINUE AT SITE

I do not believe Trump made matters worse. Regarding the exhibition of contempt by NFL players during the playing of the national anthem, this puts me, quite unusually, at odds with a number of my friends and colleagues at National Review (Jonah Goldberg and David French, for example).

To my mind, to say that the president made things worse is to understate how bad things were — i.e., how appalling the fraud behind the kneeling protest has been. More damaging than anything Trump has said, moreover, is the indulgent reaction to the protest: The received wisdom that even if we find the tactic of the protesters objectionable, we owe them respectful attention because their cause — which they claim is racial equality — is an urgent and honorable one.

To the contrary, the protest promotes a false narrative. And we are not required to take at face value the protesters’ representation that they seek racial equality in the name of justice. Patently, what they are seeking is a perversion of justice based on racial inequality.

Furthermore, there is no First Amendment right to political speech in the workplace. Since the NFL is under no obligation to make its private platform a soapbox for promoting a false narrative — and particularly given that the NFL does not hesitate to suppress expression to which it objects — its decision to allow the exhibition of contempt for symbols of nationhood is a free choice, an implicit endorsement.

If the commissioner and the owners are now made uncomfortable because President Trump pointed out that they need not tolerate the exploitation of their forum by athletes who insult the nation and slander its police, good.

It is beyond cavil that the president’s impetuous remarks, his at times reckless and even offensive blathering, often make things worse, including for the president himself. To take just one example (there are numerous we could cite), his tweets accusing President Obama of tapping his Trump Tower phone lines were not just ill-informed and indecorous; they detracted from what may be a real political-spying scandal. They gave the media a rationale for focusing on Trump’s misstatements to the exclusion of indications that the Obama administration abused its foreign-intelligence collection power in order to monitor the opposition party’s presidential campaign.

But the spiteful public debate over the NFL’s kneeling protesters? He didn’t make that worse. He drew attention to its fraudulent underpinnings.

Wisconsin’s Green Bay Packers, who have a deep history of fan support through good times and bad, asked fans to join them in linking arms during the national anthem at last night’s home game against the Chicago Bears. Most fans refused.

While Packers and Bears players and coaches linked arms on the field, a plethora of little American flags popped up all over the stadium. Fans shouted “USA! USA!” while a large flag unfurled over the field. Local reports say some people even went farther in their displays of respect for the United States:

In the concourse, some people removed their hats as the anthem started to play, some stopped walking, some even saluted towards the TV’s displaying what was happening on the field, while crowds continued to move around them to get to their seat before kickoff. Some fans outside the stadium also stopped for the anthem.

Two days before the game, the Pack released a statement asking fans to join them in linking arms at this game to celebrate “diversity” and “justice”:

The image you will see on September 28th will be one of unity. It will represent a coming together of players who want the same things that all of us do—freedom, equality, tolerance, understanding, and justice for those who have been unjustly treated, discriminated against or otherwise treated unfairly. You will see the sons of police officers, kids who grew up in military families, people who have themselves experienced injustice and discrimination firsthand, and an array of others all linking together in a display of unity.

Those of us joining arms on Thursday will be different in so many ways, but one thing that binds us together is that we are all individuals who want to help make our society, our country and our world a better place. We believe that in diversity there can be UNI-versity.

At last Sunday’s game, during which an NFL-wide protest had been announced, several Packers players linked arms on the sidelines during the national anthem, while “Three players – veteran tight ends Martellus Bennett and Lance Kendricks, along with rookie cornerback Kevin King – sat on the bench during the anthem behind the rest of the team, all for different reasons.” Afterwards, the team decided to try this week for a unified display.

Canada dared call it treason.

American’s northern neighbor slammed the door on Chelsea (née Bradley) Manning when she tried to drive into Quebec last week. Canadian authorities blocked Manning “on grounds of serious criminality,” according to official records, “that would equate to an indictable offense, namely treason.”

Canada’s red light mocked the laurels and hearty welcomes offered to Manning since she waltzed out of the United States Disciplinary Barracks at Fort Leavenworth on May 17. Manning was feted like a conquering heroine in New York City’s gay-pride parade last June. This month’s Vogue magazine showcases Manning in a one-piece swimsuit, snapped by celebrity photographer Annie Leibovitz. Manning will be a headliner at October’s New Yorker Festival. And Harvard recently named Manning a visiting fellow.

“She speaks on the social, technological and economic ramifications of Artificial Intelligence,” Harvard breathlessly announced. “As a trans woman, she advocates for queer and transgender rights as @xychelsea on Twitter.” Tragicomically, Harvard described Manning as “a Washington D.C. based network security expert.”

These plaudits are outrageous, given why Manning landed behind bars: In July 2013, Bradley Manning was convicted of 20 of 22 charges filed against him, including six violations of the Espionage Act of 1917.

Manning received “the stiffest punishment ever handed out in the U.S. for leaking to the media,” the Associated Press reported, “for spilling an unprecedented trove of government secrets.” This included “more than 700,000 classified military and diplomatic documents, plus battlefield footage, to the anti-secrecy website WikiLeaks. By volume alone, it was the biggest leak of classified material in U.S. history, bigger even than the Pentagon Papers a generation ago.”

Manning was acquitted of “aiding the enemy.” Nonetheless, presiding judge Colonel Denise Lind ruled that Manning had “reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation.” Further, Manning possessed “knowledge that intelligence published on the Internet was accessible to al Qaeda.” She added: “Manning’s conduct was of a heedless nature that made it actually and imminently dangerous to others. His conduct was both wanton and reckless.”

Despite these high crimes, Obama granted Manning clemency, thereby slashing her 35-year prison term to seven years already served. It’s inconceivable that Obama would have spared Manning 80 percent of her sentence were she still named Bradley.

All of this has given intelligence experts fits.