Magazine July 20, 2015, Issue

The Week

(Roman Genn)

‐ Love 1, Constitution 0.

‐ Dylann Roof killed nine members of Emanuel African Methodist Episcopal Church in Charleston, ages 26 to 87 (one was the pastor and a state senator). He opened fire on his targets after spending an hour with them in their Bible-study class. Lesson not learned. But survivors and relatives of the victims, undeterred, tried again at Roof’s bond hearing. “We are the family that love built,” Bethane Middleton-Brown, sister of one of the dead, told him. “We have no room for hating, so we have to forgive. I pray God on your soul.” It is some comfort to know that Roof’s violent racism — he hoped, he said, to start a race war — is now the pathology of deviants, not, as it was even 60 years ago, the creed of large swatches of America. Beyond politics and countries is the struggle to know and share God’s love in a fallen world. Bless Emanuel AME and so many others in Charleston for their example. Beside it the 24/7 yakfest of so much modern life shrivels to insect chatter.

‐ Because Dylann Roof was a white supremacist who displayed Confederate paraphernalia, his massacre was followed by a push to remove the Confederate flag from state flagpoles, retailers’ stock, and even historical games. The Confederacy arose to defend slavery from Abraham Lincoln and the Republican party; its flag is inextricably linked with white power and treason, and should not be flown by agents of the government it sought to destroy. But the human heart, like history, is complex. Men fight for homes as well as ideologies; soldiers even in bad causes can conduct themselves with honor. Kibitzers of the future should beware of easy triumphalism: Lincoln reminded northerners of his day that they too were complicit in slavery by sharing its produce and profits, and that southerners were “just what we would be in their situation.” The gray dead were rebels, not murderers. To efface all sign of them is proud, spiteful, and — since the past cannot be rewound — vain.

‐ Congratulate President Obama on a great week. The media did: “After a momentous week Obama’s presidency is reborn” (Politico). “This was the best week of Obama’s presidency” (Washington Post). Etc., etc. But what did this septimana mirabilis consist of? A horrible crime brought down the Confederate flag; we beat people who were beaten 150 years ago, at which rate Iran and ISIS will fall in 2165. Congressional Republicans passed trade-promotion authority; Obama in year seven of his administration discovers triangulation. The Supreme Court upheld the subsidies in Obamacare, his signature legislation, and imposed gay marriage, one of his (sometime) causes; the swing justices were appointed by Ronald Reagan and George W. Bush. Big events, culturally and economically. But apart from TPA, for which he deserves partial credit, some big waves rolled in and he rode them. Great surfers do that; so does kelp. Spare us the Mount Rushmore redo.

‐ Amid the gay-marriage brouhaha that flared up at the end of June was another Supreme Court case of serious import. The 1968 Fair Housing Act, the Court said, can be violated inadvertently, and the state of Texas had done just that. The bottom line: It is not good enough for a housing policy to be neutral in its intentions, it must also produce equal outcomes. State and federal agencies are thus acting in violation of federal law when their behavior can be statistically shown to have had a “disparate impact” on various protected groups, even if there was no desire to hurt or favor anybody. This claim would have come as a surprise to the law’s drafters, who neglected to mention any such provision within its text. The Court’s electing to read into the law what is clearly not there, Justice Alito contended in his dissent, represents “a serious mistake.” That mistake has been going around a lot lately.

‐ In a week when news from the Supreme Court was dominated by its bad decisions in a couple of high-profile cases, a piece of good news got buried: The justices affirmed that private property is private property. They found that a program under which the federal government seized raisin crops from farmers was unconstitutional. In Horne v. Department of Agriculture, the Court, citing the Fifth Amendment, ruled that farmers must be justly compensated for the government’s “takings” of their product. The purpose of the National Raisin Reserve, established in 1949, was to limit the amount of raisins on the market and thereby prevent their price from falling too far. In 2002–03, the Raisin Administrative Committee ordered growers to surrender 47 percent of their crop to the reserve. Marvin Horne, who runs a family-owned raisin farm in California, refused. The government issued fines and penalties totaling more than $680,000. Horne sued, and now has won. Leviathan lost. One battle at a time.

‐ Better late than never, the Supreme Court took the Obama administration to task in June, ruling that its EPA had illegally promulgated a rule limiting the permitted emission of mercury and other pollutants from coal-fired power plants. At issue was the question of whether the agency had first considered the costs that the regulation would impose. Writing for a 5–4 majority, Justice Antonin Scalia concluded that it had not, and that the provision must therefore be reworked. Going forward, the decision will help to rein in an agency that has been out of control under President Obama. This summer, the president will announce his new climate-change regulations in the certain knowledge that a failure to follow the correct process could land him back in court. That is progress, and it should be welcome. But it will be scant consolation for the many power plants that have already been put out of business.

‐ Governor Bobby Jindal of Louisiana, a son of Baton Rouge, is under fire for being insufficiently a son of Chandigarh, the Punjabi city that once was home to his father. Jindal is running for president as one of the few Americans in public life who have reformed a health-care system with a measure of success, having rescued his state’s bankrupt public-health system when he became secretary of health at the age of 24. He is not running as an Indian American, and has been refreshingly direct in his criticism of crass identity politics. For this, he has been mocked by the self-appointed ethnic-authenticity police at The New Republic, who accuse him — along with Governor Nikki Haley of South Carolina and conservative activist Dinesh D’Souza, also of Indian ancestry — of having “advanced in the GOP by erasing their ethnic identities.” Jindal has been criticized for having an official portrait in which his skin is not depicted with the degree of darkness that liberals think proper, and an anti-Jindal social-media campaign has been organized around the phrase “Bobby Jindal is so white . . .” Apparently, our liberal friends expect the gentleman from Baton Rouge to enter the 2016 Republican convention riding an elephant and wearing a turban, in cahoots with mahouts, as it were. While we are desperately awaiting Elizabeth Warren’s view on the subject, and Rachel Dolezal’s, take a moment to think on the Jindal family’s uniquely American story, and to thank God that it remains possible.

‐ Over the objections of ineducable progressives — and of conservatives who really should know better — President Obama signed into law the aforementioned trade-promotion authority. It simply allows the president to submit trade agreements to Congress for an up-or-down vote, a feature of U.S. trade policy for decades, and a useful one, too. It became controversial partly because conservatives distrust the president, not without reason, which led some of them to resist this commonplace measure; partly because 2016 presidential contenders in both parties are looking for a fight; partly because trade is an issue ripe for cheap demagoguery; partly because the Left hates international trade per se; and, not least, because TPA was caught up in a controversy over the trade deal currently being negotiated, the Trans-Pacific Partnership, a hate totem to the Buchananite Right and to the Warrenite Left, which objects to the proposal’s extension of U.S.-style intellectual-property protections, and to the fact that some for-profit enterprise might profit from it. This latest bill extends TPA for six years, and we hope that President Cruzpaulbio makes fuller use of it than his predecessor has.

‐ To borrow from a well-known former senator, it has always required the “willing suspension of disbelief” to assume Hillary Clinton had surrendered all the official e-mails kept on the private server she used to conduct State Department business — frustrating government record-keeping regulations, freedom-of-information laws, and congressional investigations. In particular, the dearth of e-mail from the period around the 2012 Benghazi massacre obviously suggested that she was continuing to withhold relevant evidence. Now the obvious has become explicit: The House committee investigating Benghazi has uncovered e-mails Clinton failed to disclose. They involve Sidney Blumenthal, the longtime Clinton henchman who seems to have been the secretary’s Rasputin, providing political advice and dubious intelligence about Libya despite being blackballed by the White House from service in the administration. The e-mails were discovered in connection with the committee’s grilling of Blumenthal. It gets tiresome to point out that a Republican who merely tried to do what Mrs. Clinton has actually pulled off would be drummed from public life and perhaps preparing for a criminal trial, not a presidential campaign.

‐ The president of Smith College got in trouble last December for saying “All lives matter,” when the mantra is “Black lives matter.” She issued an abject apology. Now Hillary Clinton has gotten in trouble, for using the same verboten phrase. Speaking at a church in Missouri, she told a story about her mother’s struggles. Hillary once asked her, “What kept you going?” And “her answer was very simple,” said the candidate. “Kindness along the way from someone who believed she mattered. All lives matter.” That tore it. Clinton faced a “backlash,” as the New York Times reported. Clinton was judged to have committed a racial offense. Coming to her rescue on Twitter was Donna Brazile, the veteran Democratic operative (who is black). She noted that Hillary was merely telling a story about her mother, and that Hillary had cooperated in saying “Black lives matter” in the past. Then Brazile said, “Stop hating!” Good luck with that.

‐ Even by the standards of Obama-administration lawlessness, the lengths to which the Internal Revenue Service has gone to obstruct judicial proceedings and congressional investigations over its targeting of conservative groups are shocking. Originally, the agency falsely claimed that e-mails from Lois Lerner, the central IRS official in the scandal, could not be located for the critical time period because her hard drive had been mysteriously destroyed. The IRS conveniently omitted that there was a backup system preserving all communications. Now we learn that tens of thousands of e-mails have been “inadvertently” purged from the backup system — months after the IRS received judicial orders to preserve them and subpoenas to produce them. Predictably, Attorney General Loretta Lynch is no more willing to investigate administration corruption than her predecessor, Eric Holder. Impeachment is the Constitution’s remedy for egregious abuses of executive power. Trying to impeach a twice-elected president is a fool’s errand. The IRS, by contrast, is an unpopular agency even in the best of times. Congress should impeach Commissioner John Koskinen and other agency officials who have been complicit or derelict. Let Democrats be the IRS’s public defender.

‐ The cases of Sant Singh Chatwal and Dinesh D’Souza are interesting to compare. Chatwal is a big Democratic donor. He parties with the Clintons and other top Dems. D’Souza is the well-known conservative author and filmmaker. In 2012, D’Souza arranged for $20,000 in illegal donations to an old college friend of his who was running for the Senate in New York (Wendy Long). He pleaded guilty last year. Chatwal arranged for more than $180,000 in illegal donations to a variety of candidates, including Mrs. Clinton. He has just pleaded guilty, and to witness tampering, too. D’Souza was sentenced to five years’ probation, beginning with eight months in a halfway house. He was also required to perform more than 2,000 hours of community service and to undergo weekly therapy. Chatwal, meanwhile, was sentenced to only three years’ probation, and 1,000 hours of community service. We realize that sentencing is not an exact science, nor should it be. But the contrast here is curious.

‐ Hackers working for the Chinese government penetrated the databases of the Office of Personnel Management, the federal human-resources department that keeps records on millions of current, former, and potential government workers, containing a great deal of classified information from background investigations and other sources. This is an act of espionage bordering on an act of war, and the Obama administration has, thus far, responded with a whimper: Changing the presidential Facebook password is not going to cut it. This is in fact the second major Chinese invasion of the OPM in a year, and the Russians have frolicked merrily through the White House and State Department e-mail systems. (If the secret police happen to know where those missing Hillary e-mails are . . .) The OPM is overseen by Katherine Archuleta, a criminally incompetent political functionary whose previous job was as political director of President Obama’s reelection campaign. Her response? “I don’t believe anyone is personally responsible.” That’s a fair summation of the problem.

‐ Alexander Hamilton has been a bogeyman for the Democratic party since Day One. Thomas Jefferson thought he was a monarchist. Martin Van Buren said he called the people “a great beast” (Van Buren’s account was fourth-hand hearsay). The only book review FDR ever wrote praised an anti-Hamilton polemic. Why the hate for the first Treasury secretary? Hamilton was an immigrant from a broken home, who campaigned against slavery. But Democrats have never forgiven him for being a self-made man who understood modern finance and created a new investor class. No surprise then that the current Treasury secretary, Jack Lew, wants to take him off the ten-dollar bill, to be replaced by a woman TBA. Keep the man who made our money on it.

‐ How many times does the nation need to witness a mass slaughter such as those perpetrated by Jared Loughner, James Holmes, or Adam Lanza — all of whom suffered from a serious mental illness — before Congress begins to reform the byzantine mess that is our current, cruelly ineffective, and shamefully wasteful mental-health system? If Representative Tim Murphy (R., Pa.) is successful, perhaps not much longer. On June 4, Murphy (the only psychologist in Congress) and Eddie Bernice Johnson (D., Texas; the only psychiatric nurse in Congress) teamed up to reintroduce the Helping Families in Mental Health Crisis Act. The bill is designed to improve treatment and increase options for those who need it most — the 4 percent of Americans diagnosed with schizophrenia and other severe brain illnesses, many of whom do not recognize that they are ill and therefore do not voluntarily seek treatment. Among the bill’s proposed reforms: a change of privacy laws so that family caregivers will no longer be shut out of medical decisions and denied basic information about their mentally ill loved ones; a revision in the need-for-treatment standards so people can get help before they harm themselves or others, and before they land in emergency rooms or jail; and a requirement that states authorize court-ordered “assisted outpatient treatment” (AOT) programs if they are to receive Community Mental Health Service Block Grant funds. The AOT programs in particular are promising: Multiple studies have shown that patients who participate in them cut their hospital stays in half, decreasing costs, and they are less likely to become homeless, and twice as likely to stay on their meds. So perhaps Congress will come to its senses and make the Murphy-Johnson bill law. Alternatively, it could continue to debate gun regulations that would have made no difference even if enacted.

‐ No wonder Marilyn Mosby, the state prosecutor in Baltimore, withheld for two months the Freddie Gray autopsy report, on which she based homicide and other serious charges against six police officers even though investigators had not completed their probe. The report, leaked to the press, concludes that Gray was under the influence of narcotics and obstreperous following his arrest — moving wildly, causing the police van to shake, and clearly making it difficult for police to restrain him. Significantly, the medical examiner concluded that Gray was placed by police in a prone position on the van floor. If he had stayed that way, he would not have suffered the severe neck injury that led to his death. But Gray decided to try to get back up even though his hands and ankles were restrained; that, apparently, is why he catapulted into the van’s hard interior when it decelerated. This creates a serious causation problem for a case in which Mosby has already had to dismiss false-arrest charges she rashly and erroneously filed. The issue is not whether police safety procedures could have been better. It is whether their conduct warrants murder and manslaughter charges. Mosby’s case looks very thin.

‐ “This is not politics. This is math.” So says Puerto Rico governor Alejandro García Padilla. “The debt is not payable.” There is some other relevant math: Fifty-one percent of Puerto Rico’s residents are on welfare, a third are employed by government, the unemployment rate is 12.2 percent, and some 150,000 of its 3.5 million residents have left in the past few years, most of them citing job opportunities in the mainland United States or elsewhere. Puerto Rico has the highest municipal-bond debt per capita of any U.S. state or territory. It has spent and spent. Its profligacy was slowed down for half a minute during the governorship of Luis Fortuño, but Puerto Rico’s politics, like those of California, are dominated by public-sector unions, which soon retired Fortuño and his plans for fiscal discipline. García Padilla pledged not to lay off any government workers — payroll is two-thirds of the commonwealth’s budget — and tried to paper over the shortfalls with tax increases (a 39 percent corporate tax, an 11.5 percent sales tax, the highest of any U.S. territory), but the math is the math, and $1.5 billion deficits add up when you have fewer taxpayers than Caitlyn Jenner has Twitter followers. As of this writing, Puerto Rico is estimated to be only days away from default, and that’s not math — that’s politics: The public-sector unions would rather drive it into insolvency than save it.

‐ It’s perhaps time to invent a new term to describe the Obama administration’s air campaign against ISIS. It’s certainly not a “war.” Rules of engagement have leaked into the media, and the constraints on American forces are breathtaking. Fighting an enemy that deliberately hides among civilians, American pilots are being told not to engage if there is a threat of even a single civilian casualty. In other words, the administration has freely granted ISIS immense urban safe havens, where ISIS terrorists can rest, recuperate, train, and — yes — fight without excessive concern for their safety. It’s hard to imagine a more thorough perversion of the laws of war, which are designed to punish enemies who deliberately risk civilians and hide behind human shields. It’s no longer possible to even pretend that the administration is committed to destroying ISIS. As we temporize, ISIS continues to grow, and its reach expands across the Middle East and the world. The next president will be left to face the largest jihadist army in modern history.

‐ The United States is now sharing a base in Iraq with Iranian-backed Shiite militias. In the Iraq War, American servicemen fought against these very militias, who have American blood on their hands. The United States and Iran now have a common enemy, it’s true: ISIS. But Israel’s prime minister, Benjamin Netanyahu, had it exactly right in his speech before Congress last March: “Iran and ISIS are competing for the crown of militant Islam. One calls itself the Islamic Republic. The other calls itself the Islamic State. Both want to impose a militant Islamic empire first on the region and then on the entire world. They just disagree among themselves who will be the ruler of that empire.” When it comes to Iran and ISIS, said Netanyahu, “the enemy of your enemy is your enemy.”

‐ “Make Ramadan a month of disasters for the infidels” was how a spokesman for ISIS introduced the holiest moment of the Muslim year. His hopes were met. A young Tunisian with a Kalashnikov murdered at least 38 unsuspecting tourists on a beach in the resort of Sousse — Arab Spring or not, the country is evidently not quite as Westernized and secular as its friends like to say. Entering a nearby hotel, the gunman terrorized and shot dead most of those who had tried to escape there. The victims were mostly middle-aged and pensioners, which didn’t stop that ISIS spokesman from accusing them of being in godless “nests of fornication.” After a couple of very long hours the police arrived and shot dead the 23-year-old killer. In Grenoble, France, at that same moment, Yassin Salhi, an immigrant of Algerian origin and a truck driver in a factory for gas cylinders, took hostage Hervé Cornara, his immediate boss. In true ISIS style, he cut off Cornara’s head and stuck it on the factory gate. ISIS, a Sunni movement that perceives Shiites as infidels or even heretics, was simultaneously rejoicing that one of its suicide bombers had just killed himself and 27 others in a Shiite mosque in Kuwait. ISIS or movements related to it are known to have abused this year’s Ramadan by murdering with bombs Hisham Barakat, Egypt’s chief prosecutor, three engineers mistaken for soldiers in a village in Sinai, four civilians in Baghdad, and ten inmates of a leprosy hospital in Nigeria. Most horrifying of all Ramadan outrages is an ISIS video of captives in a cage being lowered into water to drown.

‐ Greece vs. Germany is a game well into overtime. It’s particularly awkward because the same reward is dangled above winner and loser, namely membership of the European Union with its currency, the euro. The Greeks have been playing long. They easily won the opening stages of the contest by obtaining tens of billions of euros in loans, subsidies, bailouts, and credits that a small and rather limited economy like theirs could never conceivably repay. The game plan involved living at the expense of others, actually a mass of fouls that the referees in the end had to take note of. Wanting back at least some of their money, and realizing that they had been unspeakably foolish, the lenders put merciless pressure on the Greeks. Germany in its own interest is subjecting future money supplies to conditions of austerity. Desperate now, the Greeks are close to default and starvation; the banks are shut; machines have run out of notes. As we went to press, Prime Minister Alexis Tsipras and his assorted ex-Communist colleagues in government had called for a referendum. A Yes majority would leave Greece with the euro but under the heel of a coercive EU looking jack-booted; a No majority would return Greece to its own currency, probably leading to a slump, and shake the EU project to its foundations.

‐ Speaking off the cuff as is his habit, Pope Francis seemed to suggest that it was un-Christian to manufacture or sell arms. “Think of the people, leaders, entrepreneurs, who say they are Christians and then produce weapons! They say one thing and do another,” he told a group of young Italians on a visit to the Shroud of Turin in June. “There is the hypocrisy of speaking about peace and producing arms, and even selling weapons to this one, who is at war with that one,” he added. But the pope must know that keeping the peace often requires bearing arms. Indeed, in the course of his reflection he decried the fact that the Allies during World War II failed to bomb train lines used to transport Jews and others to death camps. Would it have been wrong for Christians to manufacture bombs used for such a purpose? How about the weapons used by Francis’s heavily armed Swiss guard? It would be easier to divine the pope’s meaning if he didn’t so often shoot from the hip.

‐ A severe heat wave hit southern Pakistan, killing over 1,000 people and hospitalizing tens of thousands. The elderly and the poor have contributed the most to the death toll. Karachi, the country’s most populated city, with more than 20 million residents, was affected the most, reaching temperatures as high as 113 degrees. An official at Karachi’s largest government hospital said the morgue is “overflowing” and “they are piling bodies one on top of the other.” Pope Francis recently called air conditioning a “self-destructive” example of “harmful” consumption. Karachi, no doubt, begs to differ.

‐ Striking French cabbies seemed to be more interested in égalité than in any modicum of fraternité or liberté as anti-Uber riots broke out in Paris and at least three other cities. The cabbies snarled traffic, hurled rocks, and overturned and then torched cars in protests against the San Francisco–based ride-sharing company that uses GPS-enabled smartphones to connect passengers with the entrepreneurial drivers. Uber offers customers lower fares and better service — something clearly unacceptable to the cabbie unions, which have labeled the fast-growing company “unfair competition.” Many Uber drivers and their passengers were taken hostage by the rampaging chauffeurs de taxi — including Courtney Love, who tweeted that “they’ve ambushed our car and are holding our driver hostage. they’re beating the cars with metal bats. this is France?? I’m safer in Baghdad.” Some cabbies even went so far as to hail rides using Uber’s app, only to assault the drivers upon arrival. “We are truly sorry to have to hold clients and drivers hostage,” one taxi-union official told the French press. “We’re not doing this lightly.” As they say: Tout arrive en France.

‐ The New York Times has declared that it is “moving in a good direction” when it comes to the epithets it hurls in the climate-change debate. The Gray Lady will increasingly use the word “denier,” rather than “skeptic,” to describe those who are “challenging established science,” according to Margaret Sullivan, public editor for the Times. In a recent interview with Media Matters, the left-wing media watchdog, Sullivan likened the transition to that made from using “enhanced interrogation” to using “torture.” Sullivan did say that the term “denier” isn’t appropriate for people who are “wishy-washy on the subject or in the middle.” Sullivan’s assurance will come as little comfort to anyone who finds that our republic’s political sphere of discussion is increasingly cramped and confined.

‐ Trans fats are not the healthiest thing you can eat, which is why nutritionists have been warning Americans about them for years. In response, food manufacturers have reduced their use of trans fats and consumers have made efforts to avoid them, with the result that between 2003 and 2012, Americans’ average daily trans-fat consumption dropped from 4.6 grams to 1 gram, well below the American Heart Association’s recommended maximum of 2 grams. Individuals freely making choices, sellers responding to market forces: It’s a libertarian’s dream — which means a regulator’s nightmare. So of course the Food and Drug Administration has announced an absolute ban on trans fats, to take effect in three years. To be sure, trans fats can be harmful in large amounts, but it isn’t like you’re eating strychnine, and the things that replace them, such as palm oil, are hardly any better and sometimes affect the taste or consistency of the product. But when regulation is your job, everything looks like a problem.

‐ Affirmative consent might become a mandatory part of Americans’ foreplay, with legal consequences for those who don’t oblige. The American Law Institute (ALI) is drafting a model statute, still in its infancy, that would update the current penal code to define criminal sexual conduct as sexually intended physical touch without affirmative consent from both sides. This touch could be as innocent as playing footsie at dinner or grabbing a date’s hand in the movie theater — if the flirtatious contact is uninvited, it could result in criminal charges. The move to change the law is part of a nationwide “Yes Means Yes” initiative sweeping college campuses, which, among other things, redefines consent as “affirmative, conscious, and voluntary agreement to engage in sexual activity,” according to a California bill passed last fall. The ambiguity of the bill means that consent could be required multiple times as the proceedings unfold. “Lack of protest or resistance does not mean consent,” the bill continued. “Nor does silence mean consent.” This law either would be impossible to enforce owing to the difficulty of proving intent, or would be abused, resulting in countless reputations ruined. Consent to this law should be vigorously refused.

‐ A feminist blog (wait, don’t stop reading, this is important) says that the phrase “trigger warning” needs a warning itself, because the word “trigger” has distressing associations for some people. The blog has a point: Guns are scary; “Trigger” was the name of Roy Rogers’s horse, and Freud could tell you things about horses; and, most fearsome of all, “trigger” is the word the IRS uses when they audit you. So yes, by all means, let’s substitute something anodyne, like “content warning” — except that doesn’t solve the problem either, because the very word “warning” inspires fear; you don’t need a warning when everything is fine. Perhaps, to warn readers that they might encounter stuff they don’t like, we should switch to something even gentler, like “Not for nothing, but you might want to read Pat the Bunny instead if you’re squeamish, know what I’m saying?” Either that or assume that adults should be capable of dealing with material that they might find disagreeable.

‐ Allen Weinstein was a liberal history professor who wanted to prove that Alger Hiss had not spied for the Soviet Union, contra Whittaker Chambers. So he looked at the evidence, studying newly available documents in the 1970s. Then he did a remarkable thing: He changed his mind and agreed with what conservatives had been saying all along. The publication of his book Perjury in 1978 marked a turning point in the historiography of Hiss — the moment after which it became impossible for honest liberals to defend the onetime State Department official against the charge of espionage. The hard Left hated Weinstein for his apostasy and continued hating him as he became a supporter of President Reagan in the 1980s, while remaining a registered Democrat. By 2005, when President Bush picked him to head the National Archives, other scholars had built upon his pioneering work, amassing ever more proof of Hiss’s guilt and showing the extent to which Soviet intelligence had penetrated U.S. national security. Dead at 77. R.I.P.

‐ Marva Collins was a hero of our time, though she always pleaded that she was but a simple teacher. She was born black in the segregated South (Alabama). She studied in a one-room schoolhouse. The education was strict but good. In 1959, she moved north to Chicago. She taught in the public schools for 14 years — and didn’t like what she saw. Too little was expected of poor black children, and too little was produced. She started a school of her own: the Westside Preparatory School. She had the startling idea that even Chicago kids should be taught according to the Socratic method, and that they should be exposed to the best that has been thought and said. Shakespeare, for example, was for everybody. President Reagan apparently wanted to make Marva Collins education secretary, but she demurred. A TV movie was made about her life, starring Cicely Tyson. In 2004, President George W. Bush presented Mrs. Collins with the National Humanities Medal. She has now died at 78. Marva Collins did a world of good in her life. R.I.P.


The Obergefell Decision

‘Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens — through the democratic process — to adopt their view,” Chief Justice John Roberts writes in his dissent from the Supreme Court’s decision in Obergefell v. Hodges. “That ends today.”

In most states that recognized same-sex marriage before this decision, the democratic process had already been shut down by courts. But this coda is one more blow against the idea that judges should interpret our laws, not write them.

Because marriage is a fundamental right enshrined in the Constitution, five justices of the Supreme Court wrote, every state must recognize it to include homosexual couples. Thus ended their argument.

The problem is that a right to marriage is not enshrined in the Constitution, and whether it should be extended to same-sex couples as a matter of fairness depends on what marriage is. The Constitution is silent on that question, and judges should be too.

This sloppy, arrogant precedent should worry even Americans who rejoice at the result.

We, of course, do not: Same-sex marriage is not a good idea by judicial fiat, but it is not a good idea by democratic assent, either. The majority of Americans seem to have turned on the traditional, conjugal definition of marriage, but it is the wise one — indeed, the only coherent one.

The majority opinion, by Justice Anthony Kennedy, has almost nothing in the way of constitutional argument for why marriage must extend to a class — people of the same sex — to which it has never been applied, in any society or legal system, until the last couple of decades. Pointing to other decisions striking down restrictions on the historical definition of marriage, as the majority did, does not justify redefining it.

The majority offers little more than hand-waving about the slippery slope where all this points. Religious institutions will still have protection under the First Amendment, they say, to “teach” their opposition to same-sex marriage, but the extent of that liberty is not defined. History suggests it could be rapidly curtailed — to prevent religious institutions from having codes prohibiting employees from engaging in homosexual relationships, for instance, or even, someday, forcing the institutions themselves to perform same-sex ceremonies. The majority opinion offers no standard for where freedom of conscience may protect individuals.

And if marriage is a fundamental right and the court must update its meaning with the times, what stands between this opinion and legalized polygamy? A decade or two?

Some conservatives have proposed dramatic, immediate responses to the ruling: Presidential contenders Mike Huckabee and Rick Santorum called for resisting the Court’s ruling; Governor Scott Walker advocated a constitutional amendment to undo it; and Senator Ted Cruz suggested that Supreme Court justices be appointed to eight-year terms, subject to retention elections.

None of these are a plausible way to undo the decision, since American public opinion seems to clearly support the result. Lessening the damage it does and eventually overturning it will take, yes, better judges, but also more conservative leaders and a stronger, healthier culture. These goals, not quixotic constitutional remedies, should be our focus.


Again, the Court Bails Out a Bad Law

The Affordable Care Act was drafted with extraordinary carelessness given its importance, and conservatives who say that the Obama administration has implemented it contrary to its plain meaning have strong arguments. So opined six justices of the Supreme Court, including its most liberal members, in King v. Burwell, which they decided in favor of the Obama administration.

That is, unfortunately, the best thing about the majority opinion, which labors mightily to free Obamacare from the inconvenience of its text. The text of the law authorizes federal subsidies on health-insurance exchanges “established by the state,” but does not authorize them on exchanges established by the federal government. Since most states have not established exchanges, reading the law the way it was written would limit the law’s reach and potentially bring chaos to insurance markets. The administration therefore decided not to do so. The Court not only blessed this interpretation, but suggested it had some power to pick the correct one on the grounds that any other would have perverse consequences.

Chief Justice John Roberts first implausibly read “established by the state” to be an ambiguous phrase — Justice Antonin Scalia and the other two conservative dissenters thoroughly dismantled his arguments — and then chose the possible meaning that would best serve the act’s purposes. This second portion of Roberts’s argument has a superficial plausibility, but it too lacks merit.

His point is that, in the absence of subsidies, the law’s regulations would destroy insurance markets. Congress, he writes, could not have intended for the law to have this effect. But the question of what Congress intended in the absence of widespread state cooperation with the law is surely the wrong one to ask, since there is little evidence that Congress ever considered the topic.

Justice Scalia also raises the obvious counterexample: the Class Act, the federal long-term-care entitlement that Congress passed as part of Obamacare. The Class Act did not work because it had the very features that Obamacare generally, read according to its text, would have: The affected market would be unsustainable. It had to be repealed. The point of this counterexample is that it is entirely conceivable that a law, properly interpreted, would work badly or have perverse consequences. More important, it is not the Court’s job to interpret away provisions of a law to make it come out differently.

A ruling that the administration had exceeded its lawful authority would not necessarily have led to better health-care policy or a smaller government. It would not, by itself, have repealed Obamacare. That means that the contrary ruling is not a defeat for free-market health care or limited government. What it is a defeat for is the rule of law.


Laudato No

There is an undeniable majesty to the papacy, one that is politically useful to the Left from time to time. The same Western liberals who abominate the Catholic Church as an atavistic relic of superstitious times and regard its teachings on sexuality as inhumane are celebrating Pope Francis’s global-warming encyclical, Laudato Si’, as a moral mandate for their cause. So much for that seamless garment.

It may be that the carbon tax, like Paris, is worth a Mass.

The main argument of the encyclical will be no surprise to those familiar with Pope Francis’s characteristic line of thought, which combines an admirable and proper concern for the condition of the world’s poor with a crude and backward understanding of economics and politics both. Any number of straw men go up in flames in this rhetorical auto-da-fé, as the pope frames his concern in tendentious economic terms: “By itself, the market cannot guarantee integral human development and social inclusion.” We are familiar with no free-market thinker, even the most extreme, who believes that “by itself, the market can guarantee integral human development.”

There are any number of other players in social life — the family, civil society, the large and durable institution of which the pope is the chief executive — that contribute to human flourishing. The pope is here taking a side in a conflict that, so far as we can tell, does not exist.

It is important to appreciate that Pope Francis’s environmental thinking is entirely embedded in his economic thinking, which is, we say with respect, simplistic. “Economic powers continue to justify the current global system where priority tends to be given to speculation and the pursuit of financial gain, which fail to take the context into account, let alone the effects on human dignity and the natural environment,” the pontiff writes. “Here we see how environmental deterioration and human and ethical degradation are closely linked. Many people will deny doing anything wrong because distractions constantly dull our consciousness of just how limited and finite our world really is. As a result, ‘whatever is fragile, like the environment, is defenseless before the interests of a deified market, which become the only rule.’” (The quotation is the pope citing himself, from Evangelii Gaudium.) Taking a page from the neo-Malthusians, the pope predicts that resource depletion will lead to wars, and he contemplates the possibility that the weapons used in them may be nuclear or biological. He laments “technocracy” and consumption that seems to him “extreme.”

This latter objection strikes us as particularly objectionable: The economic progress of the late 20th century and early 21st century — which is to say, the advance of capitalism — particularly in the areas of agriculture, medicine, and energy, has not so much enabled consumption that is excessive in the rich world as adequate in places such as India and China, where famine, once thought to be a permanent and ordinary part of life, has largely disappeared. This outcome was made possible not by the political oversight of economic activity that the pope contemplates but by its partial abandonment.

The pope’s stridently anti-development vision would be the opposite of a blessing for the world’s poor. Laudato? No.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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