Commentary Magazine


Topic: New Zealand

Democracy and Homogeneity in Tunisia

As we try to determine the odds of a successful democracy in post-revolution Tunisia, it’s worth considering the question of ethnic and religious homogeneity. This quote jumped out from a Reuters story: “‘Tunisia is a small country but it has room for everyone and everyone’s ideas. They thought there would be chaos in Tunisia but we are united. We do not have Shi’ites, Christians, Jews. We are all Sunni Muslims and this unites us,’ worshipper Rida Harrathi told Reuters before Friday prayers.”

The argument that there’s room for everyone because everyone is the same sounds funny to American ears, but there’s actually a solid point here. In a wonderful COMMENTARY article from March 2000, James Q. Wilson identified homogeneity as one of four important conditions that have “underlain the emergence and survival of our oldest democracies.” (The other three being isolation, property, and tradition.) Wilson wrote the following:

Several democratic nations are today ethnically diverse, but at the time democracy was being established, that diversity was so limited that it could be safely ignored. England was an Anglo-Saxon nation; America, during its founding period, was overwhelmingly English; so also, by and large, were Australia, Canada, and New Zealand. . . . I am not suggesting that ethnic homogeneity is a good thing or ought to be preserved at any cost; nor am I denying that democracies can become ethnically heterogeneous. Certainly one of the great glories of the United States is to have become both vigorously democratic and ethnically diverse. But it is a rare accomplishment. Historically, and with few exceptions, the growth of democracy and of respect for human rights was made easier—often much easier—to accomplish in nations that had a more or less common culture.

Indeed, in the formative years of a nation, ethnic diversity can be as great a problem as foreign enemies. The time, power, and money that must be devoted to maintaining one ethnic group in power is at least equivalent to the resources needed to protect against a foreign enemy. When one part of a people thinks another part is unworthy of rights, it is hard for a government to act in the name of the “rights of the people.” That is why democracy in England preceded democracy in the United Kingdom: because many parts of that kingdom—the Scots, the Irish—had very different views about who should rule them and how.

This was written three years before the Iraq invasion, but its wisdom readily brings to mind the ongoing challenges of uniting Kurds, Shiites, and Sunnis to serve a common national purpose. In addition to being saturated by Sunni Islam, the Tunisian population doesn’t have much in the way of meaningful ethnic division. There are many Berbers among the Arabs, but they’ve all more-or-less assimilated. As the revolt in Tunisia has thrown us all into the tea-leaves-reading business, we could do a lot worse than to consider the question of democracy from this reality-based angle.

As we try to determine the odds of a successful democracy in post-revolution Tunisia, it’s worth considering the question of ethnic and religious homogeneity. This quote jumped out from a Reuters story: “‘Tunisia is a small country but it has room for everyone and everyone’s ideas. They thought there would be chaos in Tunisia but we are united. We do not have Shi’ites, Christians, Jews. We are all Sunni Muslims and this unites us,’ worshipper Rida Harrathi told Reuters before Friday prayers.”

The argument that there’s room for everyone because everyone is the same sounds funny to American ears, but there’s actually a solid point here. In a wonderful COMMENTARY article from March 2000, James Q. Wilson identified homogeneity as one of four important conditions that have “underlain the emergence and survival of our oldest democracies.” (The other three being isolation, property, and tradition.) Wilson wrote the following:

Several democratic nations are today ethnically diverse, but at the time democracy was being established, that diversity was so limited that it could be safely ignored. England was an Anglo-Saxon nation; America, during its founding period, was overwhelmingly English; so also, by and large, were Australia, Canada, and New Zealand. . . . I am not suggesting that ethnic homogeneity is a good thing or ought to be preserved at any cost; nor am I denying that democracies can become ethnically heterogeneous. Certainly one of the great glories of the United States is to have become both vigorously democratic and ethnically diverse. But it is a rare accomplishment. Historically, and with few exceptions, the growth of democracy and of respect for human rights was made easier—often much easier—to accomplish in nations that had a more or less common culture.

Indeed, in the formative years of a nation, ethnic diversity can be as great a problem as foreign enemies. The time, power, and money that must be devoted to maintaining one ethnic group in power is at least equivalent to the resources needed to protect against a foreign enemy. When one part of a people thinks another part is unworthy of rights, it is hard for a government to act in the name of the “rights of the people.” That is why democracy in England preceded democracy in the United Kingdom: because many parts of that kingdom—the Scots, the Irish—had very different views about who should rule them and how.

This was written three years before the Iraq invasion, but its wisdom readily brings to mind the ongoing challenges of uniting Kurds, Shiites, and Sunnis to serve a common national purpose. In addition to being saturated by Sunni Islam, the Tunisian population doesn’t have much in the way of meaningful ethnic division. There are many Berbers among the Arabs, but they’ve all more-or-less assimilated. As the revolt in Tunisia has thrown us all into the tea-leaves-reading business, we could do a lot worse than to consider the question of democracy from this reality-based angle.

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Smackdown: Convoy vs. Flotilla

Perhaps the biggest recent news in Gaza-blockade busting is the lack of enthusiasm for it shown by some regional governments. Beirut delayed the departure of the Lebanese “women’s flotilla” flagship, M/V Maryam, for much of July. After Maryam was finally allowed to leave Lebanon, the authorities in Greek Cyprus, the staging point for Maryam to pick up additional passengers, denied the ship permission to depart for Gaza. The flotilla organizers have so far been unable to mount the effort by any other means. A separate aid ship departing from Syria this past weekend simply headed for the Egyptian port of El-Arish, near the Rafah border crossing from Egypt into Gaza, rather than attempting to break the naval blockade.

Three vehicle convoys are now preparing to converge on Gaza, but they, like the Syrian ship, will assemble near Rafah in Egypt. One convoy, arranged by the Hamas-linked Viva Palestina activist group, left from London this weekend. Departures are planned from Morocco and Qatar as well. Reporting suggests that the convoys from Europe and Africa will be composed largely of passenger vehicles, reinforcing their character as publicity stunts rather than humanitarian aid missions.

The convoy from Casablanca has already hit a snag, however, and some elements of it are currently delayed in Morocco. Algeria has granted permission to cross its territory only provisionally and unofficially, a posture that Moroccan factions consider unsatisfactory. The Egyptians, meanwhile, refused to allow a Viva Palestina convoy to use the Rafah border crossing in January 2010, deporting British activist George Galloway and banning him from further activities in Egypt. Cairo’s foreign ministry has reiterated the ban this week, emphasizing that aid-convoy vehicles will not be allowed to use the border crossing. Any cargo they bring will have to be reloaded on an Egyptian-managed official convoy.

The refusal of Greece and Egypt to collude in blockade-running attempts is encouraging. By making order a priority, they eliminate the convenience third-party territory represents for activists originating from Turkey, Syria, or Lebanon. Other European authorities could take a lesson from them.

An interesting development thousands of miles away merits a mention as well. The New Zealand-based organization Kia Ora Gaza, while fundraising at a university in Hamilton last week, was startled to encounter push-back against its vituperative anti-Israel appeal (“one non-Jewish student … described [it] as ‘hate-preaching’”). Kia Ora Gaza activists were reportedly “told by Iraqi and Iranian students that they ‘were playing straight into Hamas’s hands.’” After an hour of being challenged by attendees, the Kia Ora Gaza group cut its event short and left, having taken in very few donations (one attendee counted a total of three).

No single event should be regarded as definitive, of course, but the trend here is positive — and very different from the narrative adhered to by the mainstream media. At times it seems as though the only ones who don’t “get it,” when it comes to Hamas, Islamism, and the cause-célèbre of Gaza, are the Western leftist elites.

Perhaps the biggest recent news in Gaza-blockade busting is the lack of enthusiasm for it shown by some regional governments. Beirut delayed the departure of the Lebanese “women’s flotilla” flagship, M/V Maryam, for much of July. After Maryam was finally allowed to leave Lebanon, the authorities in Greek Cyprus, the staging point for Maryam to pick up additional passengers, denied the ship permission to depart for Gaza. The flotilla organizers have so far been unable to mount the effort by any other means. A separate aid ship departing from Syria this past weekend simply headed for the Egyptian port of El-Arish, near the Rafah border crossing from Egypt into Gaza, rather than attempting to break the naval blockade.

Three vehicle convoys are now preparing to converge on Gaza, but they, like the Syrian ship, will assemble near Rafah in Egypt. One convoy, arranged by the Hamas-linked Viva Palestina activist group, left from London this weekend. Departures are planned from Morocco and Qatar as well. Reporting suggests that the convoys from Europe and Africa will be composed largely of passenger vehicles, reinforcing their character as publicity stunts rather than humanitarian aid missions.

The convoy from Casablanca has already hit a snag, however, and some elements of it are currently delayed in Morocco. Algeria has granted permission to cross its territory only provisionally and unofficially, a posture that Moroccan factions consider unsatisfactory. The Egyptians, meanwhile, refused to allow a Viva Palestina convoy to use the Rafah border crossing in January 2010, deporting British activist George Galloway and banning him from further activities in Egypt. Cairo’s foreign ministry has reiterated the ban this week, emphasizing that aid-convoy vehicles will not be allowed to use the border crossing. Any cargo they bring will have to be reloaded on an Egyptian-managed official convoy.

The refusal of Greece and Egypt to collude in blockade-running attempts is encouraging. By making order a priority, they eliminate the convenience third-party territory represents for activists originating from Turkey, Syria, or Lebanon. Other European authorities could take a lesson from them.

An interesting development thousands of miles away merits a mention as well. The New Zealand-based organization Kia Ora Gaza, while fundraising at a university in Hamilton last week, was startled to encounter push-back against its vituperative anti-Israel appeal (“one non-Jewish student … described [it] as ‘hate-preaching’”). Kia Ora Gaza activists were reportedly “told by Iraqi and Iranian students that they ‘were playing straight into Hamas’s hands.’” After an hour of being challenged by attendees, the Kia Ora Gaza group cut its event short and left, having taken in very few donations (one attendee counted a total of three).

No single event should be regarded as definitive, of course, but the trend here is positive — and very different from the narrative adhered to by the mainstream media. At times it seems as though the only ones who don’t “get it,” when it comes to Hamas, Islamism, and the cause-célèbre of Gaza, are the Western leftist elites.

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Susan Rice Is Doing Something at the UN: Targeting Israel

It turns out Susan Rice is doing something as America’s UN ambassador after all. As Jennifer noted on Friday, she isn’t attending vital negotiations on Iran’s nuclear program or protesting bizarre appointments, like Libya’s to the Human Rights Council and Iran’s to the Commission on the Status of Women.

But Haaretz reported yesterday that she has found time to do one crucial thing: lobby Barack Obama to put heavy pressure on Israel to agree to a UN probe of its May raid on a Turkish-sponsored flotilla. And today the Jerusalem Post reported that Israel has indeed capitulated: Defense Minister Ehud Barak informed UN Secretary-General Ban Ki-moon last week that “in principle,” it’s willing to participate in the probe he is organizing.

One can only hope the Post is wrong, because this would be an atrocious precedent. As Haaretz noted, it would be the first time Israel has ever agreed to a UN probe of an Israel Defense Forces operation. As such, it would legitimize the UN’s insane obsession with Israel.

After all, I haven’t noticed Ban suggesting UN probes of any other country’s military operations — say, Turkish operations against the Kurds, Iran’s attacks on its own citizens, coalition operations in Afghanistan and Iraq, or African Union forces in Somalia, to name just a few of the dozens of armies engaged in combat worldwide every single day. Many of these operations result in far more civilian casualties than Israel’s flotilla raid did — even if you deny the evidence provided by video footage of the raid and assume these casualties actually were civilians rather than combatants.

But aside from setting a terrible precedent, this probe clearly has one, and only one, purpose: to excoriate Israel. Ban’s proposed format is one representative each from Israel and Turkey, one from a traditional Israeli ally (the U.S.), and one from a country traditionally hostile to Israel (New Zealand), plus one UN representative. Since the UN representative will certainly be in the anti-Israel camp, Israel would be outnumbered even if the U.S. representative took its side.

But in reality, the U.S. representative will almost certainly join the anti-Israel camp — because Rice’s view, as reported by the unnamed senior diplomats Haaretz cited, is that facilitating Ban’s probe is “critical to U.S. interests at the UN.”

Granted, it’s hard to imagine what U.S. interest such a probe could possibly serve (Rice couldn’t protest Iran’s inclusion on the women’s commission without it?). But whatever this alleged interest is, if furthering it requires investigating Israel alone, of all the countries engaged in military activity worldwide, it clearly also requires the probe to conclude that Israel was guilty of some heinous crime. Any goal that requires singling Israel out as uniquely suspect clearly can’t be served by ultimately acquitting it.

This is first and foremost Israel’s problem: Prime Minister Benjamin Netanyahu needs to develop a spine. But American supporters of Israel have a role to play as well. They must make it clear to Obama that putting Israel in the UN dock is a red line.

It turns out Susan Rice is doing something as America’s UN ambassador after all. As Jennifer noted on Friday, she isn’t attending vital negotiations on Iran’s nuclear program or protesting bizarre appointments, like Libya’s to the Human Rights Council and Iran’s to the Commission on the Status of Women.

But Haaretz reported yesterday that she has found time to do one crucial thing: lobby Barack Obama to put heavy pressure on Israel to agree to a UN probe of its May raid on a Turkish-sponsored flotilla. And today the Jerusalem Post reported that Israel has indeed capitulated: Defense Minister Ehud Barak informed UN Secretary-General Ban Ki-moon last week that “in principle,” it’s willing to participate in the probe he is organizing.

One can only hope the Post is wrong, because this would be an atrocious precedent. As Haaretz noted, it would be the first time Israel has ever agreed to a UN probe of an Israel Defense Forces operation. As such, it would legitimize the UN’s insane obsession with Israel.

After all, I haven’t noticed Ban suggesting UN probes of any other country’s military operations — say, Turkish operations against the Kurds, Iran’s attacks on its own citizens, coalition operations in Afghanistan and Iraq, or African Union forces in Somalia, to name just a few of the dozens of armies engaged in combat worldwide every single day. Many of these operations result in far more civilian casualties than Israel’s flotilla raid did — even if you deny the evidence provided by video footage of the raid and assume these casualties actually were civilians rather than combatants.

But aside from setting a terrible precedent, this probe clearly has one, and only one, purpose: to excoriate Israel. Ban’s proposed format is one representative each from Israel and Turkey, one from a traditional Israeli ally (the U.S.), and one from a country traditionally hostile to Israel (New Zealand), plus one UN representative. Since the UN representative will certainly be in the anti-Israel camp, Israel would be outnumbered even if the U.S. representative took its side.

But in reality, the U.S. representative will almost certainly join the anti-Israel camp — because Rice’s view, as reported by the unnamed senior diplomats Haaretz cited, is that facilitating Ban’s probe is “critical to U.S. interests at the UN.”

Granted, it’s hard to imagine what U.S. interest such a probe could possibly serve (Rice couldn’t protest Iran’s inclusion on the women’s commission without it?). But whatever this alleged interest is, if furthering it requires investigating Israel alone, of all the countries engaged in military activity worldwide, it clearly also requires the probe to conclude that Israel was guilty of some heinous crime. Any goal that requires singling Israel out as uniquely suspect clearly can’t be served by ultimately acquitting it.

This is first and foremost Israel’s problem: Prime Minister Benjamin Netanyahu needs to develop a spine. But American supporters of Israel have a role to play as well. They must make it clear to Obama that putting Israel in the UN dock is a red line.

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Why Liberals Should Be Worried About Kagan

As I noted yesterday, Justice Samuel Alito’s dissent in Christian Legal Society v. Martinez is a brilliant take-down of the majority’s reasoning. His concurring opinion in McDonald v. Chicago is equally noteworthy.

As Justice Scalia did in Heller (which held that the Second Amendment’s right to bear arms is a personal right), Alito takes us on a journey through constitutional history and court precedent, leaving little doubt that the ruling is correct — and that the dissenters’ view is not only wrong but also radical. At the conclusion of his analysis, he dispenses with the arguments of the city of Chicago (Municipal respondents), which the dissenters would accept. I have omitted the numerous citations for ease of reading: 

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights “‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’” According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause Opinion of the Court does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal respondents continue, because such countries as England,Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment.

Alito then dismantles Justice Stevens’s dissent:

Justice Stevens would “‘ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.’” The question presented in this case, in his view, “is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom.” He would hold that “[t]he rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.”

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice Stevens’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents. The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Brennan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”

Justice Scalia dissents separately, purely to make mincemeat of Stevens’s dissent. He picks up where Alito leaves off and makes it clear that Justice Stevens is doing no more than making up rules as he goes along. Scalia takes issue with the notion that Stevens and other justices can decide which fundamental rights are binding on the states and which are not. A sample (the dissent is brief and should be read entirely to enjoy the full flavor), again with citations omitted:

Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,” I can find no other explanation for such certitude except that Justice Stevens, despite his forswearing of “personal and private notions,” deeply believes it should be out. The subjective nature of Justice Stevens’ standard is also apparent from his claim that it is the courts’ prerogative—indeed their duty — to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine. …

Justice Stevens resists this description, insisting that his approach provides plenty of “guideposts” and “constraints” to keep courts from “injecting excessive subjectivity” into the process.Plenty indeed — and that alone is a problem. The ability of omni directional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve. …

Justice Stevens also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. That is true, but Justice Stevens would have them show respect in an extraordinary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Court held protected in [ abortion and gay rights cases], and other such cases fit the theory — but at the cost of insulting rather than respecting the democratic process.

You see the intellectual fire power — and the dilemma for liberals. Who really thinks that Elena Kagan can go toe to toe with these jurists? What solace can opponents of original jurisprudence take from her “life” — which, she says, provides the basis for confirmation? It’s hardly evident that she has the skill to compile a historical narrative and deconstruct her ideological opponents as effectively as these two, or as well as Chief Justice Roberts and Justice Thomas.

Now great logic does not always persuade Justice Kennedy, but if the aim here was to come up with a counterweight to the “conservative” justices, then perhaps Obama should have gone with someone with demonstrated legal prowess, who can opine on, not merely repeat, the Court’s past holdings. It is for this very reason that conservatives might prefer Kagan to potential alternatives — and save the filibuster for a truly dangerous liberal zealot.

As I noted yesterday, Justice Samuel Alito’s dissent in Christian Legal Society v. Martinez is a brilliant take-down of the majority’s reasoning. His concurring opinion in McDonald v. Chicago is equally noteworthy.

As Justice Scalia did in Heller (which held that the Second Amendment’s right to bear arms is a personal right), Alito takes us on a journey through constitutional history and court precedent, leaving little doubt that the ruling is correct — and that the dissenters’ view is not only wrong but also radical. At the conclusion of his analysis, he dispenses with the arguments of the city of Chicago (Municipal respondents), which the dissenters would accept. I have omitted the numerous citations for ease of reading: 

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights “‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’” According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause Opinion of the Court does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal respondents continue, because such countries as England,Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment.

Alito then dismantles Justice Stevens’s dissent:

Justice Stevens would “‘ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.’” The question presented in this case, in his view, “is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom.” He would hold that “[t]he rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.”

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice Stevens’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents. The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Brennan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”

Justice Scalia dissents separately, purely to make mincemeat of Stevens’s dissent. He picks up where Alito leaves off and makes it clear that Justice Stevens is doing no more than making up rules as he goes along. Scalia takes issue with the notion that Stevens and other justices can decide which fundamental rights are binding on the states and which are not. A sample (the dissent is brief and should be read entirely to enjoy the full flavor), again with citations omitted:

Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,” I can find no other explanation for such certitude except that Justice Stevens, despite his forswearing of “personal and private notions,” deeply believes it should be out. The subjective nature of Justice Stevens’ standard is also apparent from his claim that it is the courts’ prerogative—indeed their duty — to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine. …

Justice Stevens resists this description, insisting that his approach provides plenty of “guideposts” and “constraints” to keep courts from “injecting excessive subjectivity” into the process.Plenty indeed — and that alone is a problem. The ability of omni directional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve. …

Justice Stevens also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. That is true, but Justice Stevens would have them show respect in an extraordinary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Court held protected in [ abortion and gay rights cases], and other such cases fit the theory — but at the cost of insulting rather than respecting the democratic process.

You see the intellectual fire power — and the dilemma for liberals. Who really thinks that Elena Kagan can go toe to toe with these jurists? What solace can opponents of original jurisprudence take from her “life” — which, she says, provides the basis for confirmation? It’s hardly evident that she has the skill to compile a historical narrative and deconstruct her ideological opponents as effectively as these two, or as well as Chief Justice Roberts and Justice Thomas.

Now great logic does not always persuade Justice Kennedy, but if the aim here was to come up with a counterweight to the “conservative” justices, then perhaps Obama should have gone with someone with demonstrated legal prowess, who can opine on, not merely repeat, the Court’s past holdings. It is for this very reason that conservatives might prefer Kagan to potential alternatives — and save the filibuster for a truly dangerous liberal zealot.

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Re: Clinton, McCain, and Obama: “We Stand United”

As Gordon has noted, today’s joint statement on Darfur, by Hillary Clinton, Barack Obama, and John McCain, places pressure on the next president to address the ongoing slaughter in Darfur come January. Let’s hope the conflict remains a “Day 1 issue”. For as Gordon also pointed out, nowhere in today’s statement, do the candidates refer to a specific plan to end the violence.

They used the term “unstinting resolve,” which would be assuring if countless issued statements on Darfur were not already riddled with such diplospeak. This August 2007 joint statement on Darfur from Gordon Brown and Nicolas Sarkozy called for “quick and decisive action.” This January 2007 joint statement issued by the World Health Organization and various UN departments speaks of “solid guarantees.” This joint statement on Darfur from back in 2004 signed by former Australian foreign minister Alexander Downer and his New Zealand counterpart Phil Goff calls on governments to act “immediately and effectively.” This 2006 joint statement from Tony Blair and Chair of the African Union, Alpha Konare “strongly urge[d]” militias to stop fighting.

Yet, despite all these pleas, the UN has continued to defer to China, while the U.S. has continued to comply with the world’s request for multilateralism. Which means that nothing has been done. So it’s important to remember that, once upon a time, a genuine Darfur proposal was on the table: Senators John McCain and Bob Dole laid out a six-step course of action in 2006, including the establishment of a NATO-enforced no-fly zone.

Since then, global inaction has led to the slaying of untold numbers of innocents. We know that John McCain has long felt the urgent need to be forceful and decisive about the massacre in Darfur. It remains to be seen if Hillary and Obama feel the same, or are content to pen scathing reviews of the Sudanese government, its Chinese and Russian sponsors, and the Janjaweed militias.

As Gordon has noted, today’s joint statement on Darfur, by Hillary Clinton, Barack Obama, and John McCain, places pressure on the next president to address the ongoing slaughter in Darfur come January. Let’s hope the conflict remains a “Day 1 issue”. For as Gordon also pointed out, nowhere in today’s statement, do the candidates refer to a specific plan to end the violence.

They used the term “unstinting resolve,” which would be assuring if countless issued statements on Darfur were not already riddled with such diplospeak. This August 2007 joint statement on Darfur from Gordon Brown and Nicolas Sarkozy called for “quick and decisive action.” This January 2007 joint statement issued by the World Health Organization and various UN departments speaks of “solid guarantees.” This joint statement on Darfur from back in 2004 signed by former Australian foreign minister Alexander Downer and his New Zealand counterpart Phil Goff calls on governments to act “immediately and effectively.” This 2006 joint statement from Tony Blair and Chair of the African Union, Alpha Konare “strongly urge[d]” militias to stop fighting.

Yet, despite all these pleas, the UN has continued to defer to China, while the U.S. has continued to comply with the world’s request for multilateralism. Which means that nothing has been done. So it’s important to remember that, once upon a time, a genuine Darfur proposal was on the table: Senators John McCain and Bob Dole laid out a six-step course of action in 2006, including the establishment of a NATO-enforced no-fly zone.

Since then, global inaction has led to the slaying of untold numbers of innocents. We know that John McCain has long felt the urgent need to be forceful and decisive about the massacre in Darfur. It remains to be seen if Hillary and Obama feel the same, or are content to pen scathing reviews of the Sudanese government, its Chinese and Russian sponsors, and the Janjaweed militias.

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Britain’s Olympic Kowtow

Chinese Olympic officials said yesterday they supported bans on athletes engaging in political protests. “I hope that the Olympic spirit will be followed and also the relevant IOC regulations will be followed in every regard,” said Sun Weide, spokesman of the Beijing Organizing Committee for the Olympic Games. Sun’s statement came in the midst of an uproar over the attempted gagging of British athletes.

On Saturday, the Mail, the London paper, reported that athletes qualifying for the British Olympic team would be required to sign a contract preventing them from speaking out on “any politically sensitive issues.” Athletes not agreeing to the ban of the British Olympic Association would not be allowed to travel to Beijing. Those who broke the ban while at the Olympics would be shipped home on the next available plane. On Sunday, British Olympic chief Simon Clegg said, in the face of widespread condemnation, that he would review the wording of the contract and agreed that the proposed language “appears to have gone beyond the provision of the Olympic Charter.”

The Olympic Charter forbids demonstrations or propaganda at Olympic sites, but the British ban would have gone further, especially if viewed in the context of China, where most topics are considered “political” and virtually everything is “sensitive.” A British competitor could have found himself on the first flight home for commenting on, for instance, polluted air or tainted food.

Up to now, only Belgium and New Zealand have prohibited political opinions from their Olympic athletes. Clegg’s hasty retreat means that, unlike in 1938 when the British soccer team was forced to give the stiff-armed Nazi salute in Berlin, the British will not, in the words of former sports minister David Mellor, be “sucking up to dictators.”

Chinese dictators, no matter how obsessive or efficient, will be unable to stage a politics-free Games on their own. They will need help in suppressing democracy advocates, Tibetan activists, and Falun Gong adherents, and so far some Western nations seem willing to lend a hand. Unfortunately, it does not appear that we can engage China’s rulers without being compromised by them. At least there is now one reason we can thank the craven and utterly reprehensible British Olympic Association. Simon Clegg and his colleagues show us that sometimes the price of good relations with bad leaders is much too high.

Chinese Olympic officials said yesterday they supported bans on athletes engaging in political protests. “I hope that the Olympic spirit will be followed and also the relevant IOC regulations will be followed in every regard,” said Sun Weide, spokesman of the Beijing Organizing Committee for the Olympic Games. Sun’s statement came in the midst of an uproar over the attempted gagging of British athletes.

On Saturday, the Mail, the London paper, reported that athletes qualifying for the British Olympic team would be required to sign a contract preventing them from speaking out on “any politically sensitive issues.” Athletes not agreeing to the ban of the British Olympic Association would not be allowed to travel to Beijing. Those who broke the ban while at the Olympics would be shipped home on the next available plane. On Sunday, British Olympic chief Simon Clegg said, in the face of widespread condemnation, that he would review the wording of the contract and agreed that the proposed language “appears to have gone beyond the provision of the Olympic Charter.”

The Olympic Charter forbids demonstrations or propaganda at Olympic sites, but the British ban would have gone further, especially if viewed in the context of China, where most topics are considered “political” and virtually everything is “sensitive.” A British competitor could have found himself on the first flight home for commenting on, for instance, polluted air or tainted food.

Up to now, only Belgium and New Zealand have prohibited political opinions from their Olympic athletes. Clegg’s hasty retreat means that, unlike in 1938 when the British soccer team was forced to give the stiff-armed Nazi salute in Berlin, the British will not, in the words of former sports minister David Mellor, be “sucking up to dictators.”

Chinese dictators, no matter how obsessive or efficient, will be unable to stage a politics-free Games on their own. They will need help in suppressing democracy advocates, Tibetan activists, and Falun Gong adherents, and so far some Western nations seem willing to lend a hand. Unfortunately, it does not appear that we can engage China’s rulers without being compromised by them. At least there is now one reason we can thank the craven and utterly reprehensible British Olympic Association. Simon Clegg and his colleagues show us that sometimes the price of good relations with bad leaders is much too high.

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NATO Goes Soft in Afghanistan

In Afghanistan, the hard-won progress of Afghan and international forces is being undermined by NATO’s inefficiency, and it’s a scandal. Canada, Germany, and the Netherlands are looking to withdraw troops by 2010. If these forces remain hindered by the restrictions already imposed upon them, their exit may very well go unnoticed. Self-imposed checks on NATO’s International Security Assistance Force (ISF) keep most European soldiers out of southern Afghanistan, where they’re needed to fight a resurgent Taliban. Moreover, these troops are only allowed to fire in self-defense.

French President Nicolas Sarkozy has said he’ll support a stronger French effort in the south. Meanwhile, a story in the Sun—about a leaked memo written by Afghan-stationed German commanders, in which they describe themselves as “useless cake-eaters”—states: “Last month German rescue helicopters refused to fly at night. And their troops are not allowed to travel more than two hours from a military hospital—making huge areas supposedly under their control off-limits.”

Australia’s new Prime Minister Kevin Rudd remains a committed U.S. ally in Afghanistan, but has made intimations about not wanting to pick up the slack for NATO. New Zealand is mulling the idea of sending additional troops.

Washington and NATO have ordered a series of appraisals of policy in Afghanistan. Additionally, Australian Defense Minister Joel Fitzgibbon is asking for fresh ideas. On loan to the U.S., former Australian Army Lieutenant Colonel David Kilcullen played a critical role in the counterinsurgency strategy that’s turned Iraq around. This kind of collaborative ingenuity could help forces secure and build upon the advances made in Afghanistan. However, if NATO doesn’t step up, the heavy lifting may become too much to bear.

In Afghanistan, the hard-won progress of Afghan and international forces is being undermined by NATO’s inefficiency, and it’s a scandal. Canada, Germany, and the Netherlands are looking to withdraw troops by 2010. If these forces remain hindered by the restrictions already imposed upon them, their exit may very well go unnoticed. Self-imposed checks on NATO’s International Security Assistance Force (ISF) keep most European soldiers out of southern Afghanistan, where they’re needed to fight a resurgent Taliban. Moreover, these troops are only allowed to fire in self-defense.

French President Nicolas Sarkozy has said he’ll support a stronger French effort in the south. Meanwhile, a story in the Sun—about a leaked memo written by Afghan-stationed German commanders, in which they describe themselves as “useless cake-eaters”—states: “Last month German rescue helicopters refused to fly at night. And their troops are not allowed to travel more than two hours from a military hospital—making huge areas supposedly under their control off-limits.”

Australia’s new Prime Minister Kevin Rudd remains a committed U.S. ally in Afghanistan, but has made intimations about not wanting to pick up the slack for NATO. New Zealand is mulling the idea of sending additional troops.

Washington and NATO have ordered a series of appraisals of policy in Afghanistan. Additionally, Australian Defense Minister Joel Fitzgibbon is asking for fresh ideas. On loan to the U.S., former Australian Army Lieutenant Colonel David Kilcullen played a critical role in the counterinsurgency strategy that’s turned Iraq around. This kind of collaborative ingenuity could help forces secure and build upon the advances made in Afghanistan. However, if NATO doesn’t step up, the heavy lifting may become too much to bear.

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A Papal Kowtow

On Friday, the Dalai Lama said that he was sorry that he would not be meeting the Pope during his visit to Italy. The Pontiff met with the exiled Tibetan last October in what the Vatican termed “a private courtesy visit.” This time, however, the Pope refused to have any contact with him. The turn-down was unexpected: a December 13 audience between the two spiritual leaders was unofficially announced in late October.

Why would Pope Benedict change his mind and shun one of the world’s most respected figures? Beijing in early November said such a meeting would “hurt the feelings of the Chinese people.” Most Chinese, frankly, do not care; it’s the Chinese leaders who would be upset. Their campaign to isolate the Dalai Lama is failing. So far this year, the Tibetan has met the leaders of Germany, New Zealand, Austria, Australia, Canada, and the United States. Moreover, Tibetan lands that the Chinese rule are going through another cycle of instability—disturbances there are occurring with increasing frequency. It’s exhilarating to watch the Chinese repressors on the run both at home and abroad.

Yet it is so depressing to watch the Pope perform the kowtow to atheistic autocrats in Beijing. One of Benedict’s top priorities is to establish relations with the modern Chinese state. He has made some progress recently—China’s state-run Catholic Church ordained two Vatican-approved bishops within the month (it often chooses clergymen who do not have Rome’s blessing). The timing of the elevations suggests they were directly related to Benedict’s refusal to see the exiled Tibetan.

The Pope, in a 55-page open letter dated May 27, indicated that the Vatican was willing to switch recognition from Taiwan to the mainland under certain conditions, including those relating to the selection of bishops. That would be a betrayal of millions of souls. Now, to please the Communist Party, he is breaking the Holy See’s long relations with the Dalai Lama. The Pontiff, unfortunately, is becoming just another craven figure in a world with too many of them. We expect better from religious leaders. Benedict, I am sad to say, is a disappointment.

On Friday, the Dalai Lama said that he was sorry that he would not be meeting the Pope during his visit to Italy. The Pontiff met with the exiled Tibetan last October in what the Vatican termed “a private courtesy visit.” This time, however, the Pope refused to have any contact with him. The turn-down was unexpected: a December 13 audience between the two spiritual leaders was unofficially announced in late October.

Why would Pope Benedict change his mind and shun one of the world’s most respected figures? Beijing in early November said such a meeting would “hurt the feelings of the Chinese people.” Most Chinese, frankly, do not care; it’s the Chinese leaders who would be upset. Their campaign to isolate the Dalai Lama is failing. So far this year, the Tibetan has met the leaders of Germany, New Zealand, Austria, Australia, Canada, and the United States. Moreover, Tibetan lands that the Chinese rule are going through another cycle of instability—disturbances there are occurring with increasing frequency. It’s exhilarating to watch the Chinese repressors on the run both at home and abroad.

Yet it is so depressing to watch the Pope perform the kowtow to atheistic autocrats in Beijing. One of Benedict’s top priorities is to establish relations with the modern Chinese state. He has made some progress recently—China’s state-run Catholic Church ordained two Vatican-approved bishops within the month (it often chooses clergymen who do not have Rome’s blessing). The timing of the elevations suggests they were directly related to Benedict’s refusal to see the exiled Tibetan.

The Pope, in a 55-page open letter dated May 27, indicated that the Vatican was willing to switch recognition from Taiwan to the mainland under certain conditions, including those relating to the selection of bishops. That would be a betrayal of millions of souls. Now, to please the Communist Party, he is breaking the Holy See’s long relations with the Dalai Lama. The Pontiff, unfortunately, is becoming just another craven figure in a world with too many of them. We expect better from religious leaders. Benedict, I am sad to say, is a disappointment.

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Taiwan’s Rejection

Taiwan’s rejection—for the fifteenth time in a row—by the agenda-setting committee of the General Assembly of the United Nations last Wednesday may well be seen, before too long, to have been a turning point. After all, who can believe that Taiwan will be turned down another fifteen times?

Chinese diplomats are nervous. They don’t want Taiwan even on the agenda, because they fear, correctly, that an open discussion might not go their way. They know that no one believes on principle that Taiwan should be excluded. Other countries are simply afraid of China.

How long can China continue to intimidate otherwise free-thinking nations? The answer is, not indefinitely.

Read More

Taiwan’s rejection—for the fifteenth time in a row—by the agenda-setting committee of the General Assembly of the United Nations last Wednesday may well be seen, before too long, to have been a turning point. After all, who can believe that Taiwan will be turned down another fifteen times?

Chinese diplomats are nervous. They don’t want Taiwan even on the agenda, because they fear, correctly, that an open discussion might not go their way. They know that no one believes on principle that Taiwan should be excluded. Other countries are simply afraid of China.

How long can China continue to intimidate otherwise free-thinking nations? The answer is, not indefinitely.

Consider India. In an article on the op-ed page of the Times of India, Ramesh Thakur, formerly a senior vice rector of the U.N. University in Tokyo, wrote:

The biggest and longest running scandal is the way in which Taiwan has been banned from the U.N.. Taiwan is refused membership, is not granted observer status, and does not figure in the U.N.’s statistical databases.

Concluding that the exclusion of Taiwan “has little to do with the merits of the application and everything to do with the geopolitics of China as a permanent member of the Security Council,” Thakur asked:

Where does this leave all the fine talk of democracy, human rights, and self-determination in Kosovo, East Timor, and elsewhere? Taiwan is better credentialed than most of them. Its population of 23 million is almost the combined total of Australia and New Zealand, and bigger than scores of U.N. member states, including East Timor (under one million) and Kosovo (over two million).

To our shame, official jaws in Washington have been clenched tightly shut with respect to this issue, except when reiterating hoary formulas whose authors, with a handful of exceptions, are long dead.

The Bush administration portrays Taiwan’s increasingly audible demands as no more than local political posturing and manipulation, for which their elected president is to blame, and resolutely declines comment on the merits of Taiwan’s case.

Some former officials, however, are talking sense: Michael Green, for instance, Bush’s former top Asian aide, now at the Center for Strategic and International Studies. He was recently quoted as saying:

For the U.S. side, we need to recognize the issue of identity in Taiwan is not a political game, it’s not a tactical move in Taipei, it’s a very fundamental issue, not at all unique to its 23 million people…. Look at Korea, Japan, the national identity is at the top of the agenda in every country in Asia and there is no reason why Taiwan should be any different.

Thakur and Green are absolutely right. The issues and processes they describe will not disappear or cease simply because we and China wish they would. We are dealing with nationalism. Difficult as it may be, we need to think ahead.

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