Bench Memos

Re: Will-ful Disregard

George Will’s attack on John McCain’s position on Boumediene stands or (as I believe clearly to be the case) falls on its own merits.  That said, it’s worthwhile, if dispiriting, to compare the current George Will to the old one (or, rather, the younger one).  Here’s what a hasty (and certainly not exhaustive) review of Will’s pre-2002 writings reveals:

 

1.  In a November 2001 column, Will defended “President Bush’s revival of the traditional wartime option of trying unlawful foreign belligerents in military tribunals.”  In particular, Will recognized that “judicial interpretations, mostly made in the context of the normal problems of criminal law, … cannot be applied, unamended, to the problem of protecting society against a large foreign-based conspiracy to commit mass murder repeatedly.”  The contrary view, held by “some professional hysterics, such as New York Times editorialists,” reflects a “foolishness of recent decades—a fetishism of rights without parameters.”  “Far from ‘shredding our Constitution,” the use of military tribunals is a “traditional, lawful” way to deal with “alien terrorists”.

 

The military tribunal question is of course legally distinct from the question of constitutional habeas rights for aliens held abroad, but the insights that informed Will’s November 2001 column seem to have abandoned him.

 

2.  Unsurprisingly, the younger Will did not consider vigorous criticism of a Supreme Court decision to be tantamount to asserting that the members of the majority are “fools or knaves” (as opposed to folks who have done something foolish or knavish).

 

In September 2000, Will strongly criticized the Court (and courts generally) for “inventing a privacy right to be a scythe for mowing down virtually all restrictions on abortion and sexual activity,” for having “radical personal autonomy—‘choice’—trump the very notion of public standards of propriety,” and for “cleansing the public square of religious expression.” 

 

In November 2000, Will condemned “contemporary liberalism” for “imposing its will—about abortion, racial preferences, capital punishment, tobacco, firearms, etc.—through litigation rather than legislation” and for its “fondness for judicial fiat rather than democratic decision-making.”

 

In June 1987, he called attention to the Court’s “sudden discovery of yet another constitutional right”—a 5-4 ruling that the Eighth Amendment is violated “if a state presents jurors with evidence of the impact of a murder on the victim’s family”—and he expressly did so “[a]t the risk of—no, for the purpose of—inflaming the body politic.”  In his words, the “majority’s rickety argument rests on a preposterous principle.”

 

In July 1988, Will criticized a 5-justice majority’s ruling that “erected a rickety statistical scaffolding to support the conclusion that there exists an evolved American ‘standard of decency’ opposed, categorically, to executions of anyone under 16.”

 

In November 1976, Will stated that reasons to oppose capital punishment “cannot be found in the Constitution.”

 

Is there any way to restore the younger Will?

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