Wednesday, July 30, 2014

Netanyahu, Roosevelt, and Truman

On July 14 (2014) Time magazine reported that "Israeli Prime Minister Benjamin Netanyahu will convene a meeting with his security cabinet on Tuesday to vote on a cease-fire proposal from Egypt      that he favors, a senior Israeli official told Haaretz."

I wonder what the result would have been if President Roosevelt had to take a vote of his cabinet to choose between a D-Day landing at Pas-de-Calais or Normandy, or if Truman needed an OK from his cabinet to drop two atomic bombs.

That's the difference between the Israeli form of government and the American Constitution's Article II, making the president commander-in-chief. Thanks be, again, to the Founders.

Monday, July 21, 2014

Tenth Amendment advice to my Republican, Conservative, and Libertarian friends


As many of the recipients of this blog know, I am a recovering constitutional law professor. Although I risk relapsing if I think, let alone write, about constitution law, now that current popular discourse is so permeated with the subject, there is an itch I have to scratch. 

The Tenth Amendment to the Constitution of the United States of America provides in unambiguous language that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

To paraphrase, so no one can misunderstand. 

           If in the Constitution a specific power is not specifically delegated to Congress, principally in Article I, Section 8 (e.g., "lay taxes," "regulate commerce," "establish post offices," "borrow money" . . .

          And if that specific power is not expressly prohibited to the states in Article I, Section 10 (e.g., "enter into any treaty," "coin money," "pass any ... law impairing the obligation of contracts") . . . 
           That specific power (e.g., to enact criminal or marriage laws) is reserved to the states, which may legislate if authorized by its (the states') citizens.

In light of this unambiguous language and the equally incontestable intention that wrote it, why then do Republicans, Conservatives, and Libertarians when speaking of the Tenth Amendment invoke "states' rights"?

Not only was the Tenth Amendment not intended to safeguard rights, not only does it say nothing about states' rights, not only is it clear beyond rational argument that the Amendment speaks only to power expressly delegated to Congress and other power expressly reserved to the states, but states do not have rightsOnly individuals have rights.

Thus, it is doubly wrong for my Republican, Conservative, and Libertarian friends to speak of “states’ rights.” Doing so misunderstands the delegation/reservation intent and meaning of the Tenth Amendment, and in the process completely ignores the real source of rights expressly articulated in the Bill of Rights and Fourteenth Amendment. Especially in the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”1

Moreover, my friends who want to invoke the Tenth Amendment in legal and political argument today are missing the constitutional boat. At stake in the current battle over engorged federal power is not a meaningless two words. Obama and his not-so-merry band of progressives in Congress and the regulatory agencies are not violating “states’ rights.”

They are making war on state sovereignty: 
“A doctrine in political theory that government is created by and subject to the will of the people” (Merriam-Webster Dictionary).

They are warring against the “people,” whom the Tenth Amendment makes the repository of all power not expressly delegated to the federal government.

So please, Republicans, Conservatives, and Libertarians, get it right.2



1 Another reason the phrase “states’ rights” should never be used is because of its connotation, if not denotation. During the thankfully bygone era of racial discrimination and segregation southern, states used the principle of “states’ rights” to justify first slavery and then Jim Crow laws.


2 The implications of this understanding for politics are substantial, because many voters can easily be made to grasp in concrete terms how a federal attack on their state and individual sovereignty affects them.

Thursday, July 17, 2014

The final desecration of Atlas Shrugged



I am aware that among the hundreds of people who receive this blog not everyone is devoted to Ayn Rand’s ideas, or believes that her magnum opus Atlas Shrugged is a masterwork. Thus, what follows will probably be of no interest to them. 

However, for those who revere Rand’s 1957 novel as a superb example of romantic realism—let alone brilliantly predictive—the recently announced third motion picture installment of Atlas Shrugged must be considered the final desecration.

Of the many points I could make, here are only two of the major ones.

The feature film rights to Atlas Shrugged should never been sold (let alone several times over) because the scope, characters, plot, and ideas of Atlas are inherently impossible to dramatize in two hours. 

I say this because of two personal experiences. 

One is because in 1968 Erika Holzer and I found the missing Italian film of We the Living, a much shorter and easier story to tell than Atlas. In its original form, WTL was three-plus hours long. Only due to Rand’s personally suggested edits, a bit of her restructuring, and some 4,000 subtitles written by Erika Holzer and Duncan Scott, did the film become the international motion picture success it deserved to be. 

The second is because toward the end of Rand’s life she worked with a TV producer and writer to create a network miniseries which would have been at least seven hours long. The writer was Oscar-winner Stirling Silliphant, whose writing achievements included the TV series Route 66 and the feature film In the Heat of the Night. At dinner one night in Los Angeles Stirling told the Holzers that there was no way Atlas Shrugged could, with any fealty to the novel, be done as a typical two-hour feature film.

As further proof that it was folly to try, I submit that the eventual producers themselves realized that a standard feature was impossible. So they made three, somewhat connected, but still standard feature films.

I repeat, the feature film rights should never have been sold, and when it was clear the current producers intended to dissect Atlas into three standard feature films, they should have been stopped.

Instead, the producers’ “solution” to the unsolvable length and complexity problems—driven also by the need to begin principal photography before their rights-option expired—was to quickly make one-third of Rand’s magnum opus, with the other two-thirds to come along in two later installments.

As to Atlas I and II (and doubtless the forthcoming Atlas Shrugged III), not a single nationally or internationally household name was associated with the project. This failure was most egregious regarding the script. While it would have been too much to expect that the producers would hire a journeyman writer like William Goldman (All the President’s Men, Butch Cassidy and the Sundance Kid), there were some well-credentialed Hollywood writers who understood Rand’s novel and could have created a faithfully powerful script. I know one of them.

Worse than all this, by far, is that the well-intentioned producers apparently believed that even though they were making an “entertainment” not a documentary, it was incumbent on them to provide “philosophical oversight.” So they hired the equivalent of a philosophical commissar, to keep the production on the Objectivist straight-and-narrow.
(There’s more. For example: difficulties with distribution, changing actors from one of the parts to the others, miscasting, the impossibility of showing Atlas Shrugged I, II, and III together in a movie theater or even on television.)

The noise you hear is Ayn Rand spinning in her grave. The feature film rights should never have been sold.

In the days of the Italian version of We the Living (1940-1941) it was possible for the film’s negatives and prints to vanish, as nearly happened because of Nazi hostility to Rand’s story about the impact of the Bolshevik Revolution on a fiercely independent woman and the two men who loved her.

Unfortunately, in today’s world of the Internet, cloud storage, digital recorders, and DVDs, there is no way Atlas Shrugged I, II, and III, unlike We the Living, will ever be lost.

Pity.

Wednesday, July 16, 2014

Ever wonder why . . .



. . . not once since the end of World War II has the United States of America—having the most powerful military in human history—won what Professor John David Lewis in Nothing Less Than Victory: Decisive Wars and the Lessons of History calls an “unambiguous military victory?” We did not win it in Korea, Vietnam, Afghanistan, Iraq—and have not against our recent terrorist enemies.

Positing what should be but isn’t generally understood, Lewis holds that “[b]oth war and peace are the consequences of ideas—especially moral ideas—that can propel whole nations into bloody slaughter on behalf of a Fuhrer, a tribe, or a deity, or into peaceful coexistence under governments that defend the rights and liberties of their citizens.” (Holzer emphasis.)

Professor Lewis quotes Lt. Gen. Harold L. George:

[T]he object of war is now and always has been, the overcoming of the hostile will to resist. The defeat of the enemy’s armed forces is not the object of war; the occupation of his territory is not the object of war. Each of these is merely a means to an end; and the end is overcoming his will to resist. When that will is broken, when that will disintegrates, then capitulation follows.

Consider the Korean War (about which I will presently have an announcement). To say the least, President Harry Truman and his political and military cronies had an agenda that was not the defeat of either the North Korean invaders or the Chinese intervenors. Far from it. Truman and company may have wanted a war, but they did not want to overcome the Communists’ will to resist. Tens of thousands of U.N., South Korean, and American troops, not to mention literally countless civilians, fell victim to their Cold War Machiavellian calculations. 

Consider the Vietnam War. The United States could have crushed the North Vietnamese will to resist by using air power to destroy Hanoi, much as American bombers ultimately leveled much of Germany and Tokyo, Hiroshima, and Nagasaki. Instead, in Vietnam (just as in Korea) we countenanced enemy sanctuaries in China and ruled civilian and other targets off limits. Far from overcoming the Communists’ will to resist, we fought a defensive, not offensive, war.

Consider Afghanistan, where after supposedly eliminating al Qaeda, we took on the Taliban with rules of engagement that not only did not overcome their will to resist, but actually encouraged a guerrilla war with, again, sanctuaries where their fighters would be reasonably safe. This time in Pakistan/Waziristan.  

Consider Iraq. Even though the United States succeeded in removing Saddam and al Qaeda, whatever will to resist possessed by their successors and freelance sectarian fighters we managed to suppress, our complete removal of troops stoked the embers of their will, and the situation in Iraq today is predictably worse than when America pulled out.

Professor Lewis make the perceptive point that:  

An aggressive nation can be empowered far beyond its physical strength by a conclusion that its opponent does not have the will to fight . . . and then be demoralized and beaten by an offense that exposes the physical and moral bankruptcy of its position. Conversely, a powerful nation may give up if its people come to think that a war is unjust, their nation’s position is morally untenable, or its goal unclear or simply not worth it.

The “aggressive nations” of North Korea, China, and North Vietnam knew that the United States lacked the will for a sustained fight, and the Communists acted accordingly—achieving far more than their physical strength should have allowed. So, too, the irregulars in Afghanistan and Iraq. Sadly, none of them has been “demoralized and beaten by an offense that exposes the physical and moral bankruptcy of its position.”

Of whom might Professor Lewis be speaking when he observes that “a powerful nation may give up if its people come to think that a war is unjust, their nation’s position is morally untenable, or its goal unclear or simply not worth it.” 

Could it be the United States in Korea, Vietnam, Afghanistan, Iraq?

These few remarks cannot begin to do justice to John David Lewis’s important and enlightening book. To prove his thesis, he presents examples from the ancient world, and then moves to modern times with extensive discussions of Sherman’s march through the South in 1864-65 (Chapter 5), British appeasement and the prelude to World War II from 1919 through 1939 (Chapter 6), and American victory over Japan 1945 (Chapter 7). These chapters, alone, are worth the reader’s attention.

The author’s conclusion—entitled “The lesson of the victories”—sums up his thesis that indispensable to victory in war is a clearly understood moral base that propels the fighting not to armistices, deadlocks, cease fires, and other inconclusive ends, but rather to clear-cut victory born of annihilation of the enemy’s will to resist.

One looks with difficulty for that moral base in America’s post-World War II conflicts, and with futility in today’s so-called War on Terrorism.

Monday, July 14, 2014

Bergdahl prediction


All I know about Pvt. Bowe Bergdahl is what I read (and don't read) in the press and on the Internet, so I disclaim having any inside information. My following prediction is based on my time in the Army, and as a lawyer in a court martial arising out of a rape during the first Gulf War.

On Monday, July 14, 2014, the media reported that Bergdahl is now an English-speaking, psychologically-whole soldier in the United States Army. As such, he has been "returned to duty."

But, we are assured, the investigation of the likely deserter continues.

Eventually, it will end.

When it does, I predict that the following is the best we can expect:
  • Bergdahl will be charged with desertion, because the evidence known so far seems to be that he left his unit with no intention to return.
  • The Government, Department of Defense, Department of Army, military prosecutors, and compliant media will put out the story that an essential element of desertion is the defendant's intent. And, they will say, you know intent is really all about what Bergdahl was thinking when he left. "Who can know?" "It's all circumstantial, isn't it"? "Hard to prove, right? "Might the jury  not find the intent? Etc., etc., etc.
  • While the pretrial proceedings drag on, the idea of a face-saving, not very punitive plea will surface.
  • Bergdahl will plead to being Absent Without Official Leave (AWOL), to cover the desertion charge and any others that could have been brought.
  • He will be sentenced to reduction in rank to private, a dishonorable discharge (DD), forfeiture of all pay and allowances, and--no pun intended--"time served." 
If that's what happens, it will be disgraceful--but for me, not surprising.