The Supreme Court vs. the Constitution

An erstwhile friend, Gerald Walpin, Esq., who I introduced to his wife some 50 years ago, but who ended the friendship soon thereafter, has surfaced, publishing a book titled "The Supreme Court vs. The Constitution," which is available on Amazon. 

Out of an interest in the writings of one out of my past, I bought the book, read it, reviewed it, and published my review on Amazon.

This led to an exchange that I want to share with you. It consists of three parts: My review, Mr. Walpin’s rebuttal, and my sur-rebuttal. 

Publishing all three in one post makes this very long, but for whatever it is worth, here it is. (I am no longer writing for my blog, but continue to post that which I write in other contexts.)

My Review

I have to say that I was deeply disappointed by the quality of this book. While I did not expect to agree with its conclusions, I expected its reasoning and its analysis to be beyond compare. My expectations in this regard derived from the authors undoubtedly brilliant career as is set forth in the latter pages of his book and which did not even mention the author having been awarded the American Inns of Court Professionalism Award for the Second Circuit.

Unfortunately, while the book gives great pretense to being a scholarly work, boasting 881 end notes, it falls flat not only for its distortions, but for its glaring omissions, not to speak of its inaccuracies. In the final analysis it ends up being no more than a screed in support of its undoubtedly sincerely held opinions. In summary, the book concludes that every Supreme Court decision that Walpin likes is one that is anchored in the Constitution, while every decision it dislikes is denounced as judicial activism, and even as being anchored in the jurist's “personal views”.

In its very early pages (at pages four and five to be exact) the author criticizes Justice John Roberts for having voted to uphold the individual mandate in the Obamacare statute on the ground that it is a Constitutionally permissible tax and asserts that this was, “an interpretation that no other justice joined."

This is quite a remarkable assertion since a glance at the opinion reveals that Justice Ginsburg, with others joining wrote:

“I agree with THE CHIEF JUSTICE that the Anti-Injunction Act does not bar the Court’s consideration of this case, and that the minimum coverage provision is a proper exercise of Congress’ taxing power.”

But quite aside from taking the Chief Justice to task for not striking down a clearly constitutional act of Congress, Mr. Walpin lauds the five Right Wing Justices for having all agreed that the Act does not stand constitutional muster under the Commerce Clause.

On this subject he chooses not to mention the view expressed by President Ronald Reagan’s Solicitor General, Charles Fried:

“Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story….” [The full transcript of the interview can be found here.] 

Walpin then goes on to assert that the country’s “foundation documents” are “The Declaration of Independence and the Constitution." Now I do not want to belittle the importance of the Declaration of Independence, which was a resounding assertion of the Colonies right to rebel against the British crown. But it has no legal standing in our jurisprudence. It was written long before there was anything resembling a United States. It was published in 1776. Even the Articles of Confederation were not adopted until 1781 and the Constitution, which is the country’s foundational document, was not adopted until 1787. So why does Walpin make this rather far fetched assertion. We find out when we turn to Chapter IV of Walpin’s book. He asserts in the heading to the Chapter, (no less) “FROM GOD AS THE SOURCE OF ALL RIGHT TO THE BANNING OF GOD."

Now Walpin’s problem here is that God in not mentioned anywhere in the Constitution. There is no mention of a deity; there is no mention, of “the laws of nature and of nature’s God”; there is no mention of “Divine Providence.”

The only mention in the Constitution of religion is in the very first amendment of the Bill of Rights, known as the “Establishment Clause” and it states: “Congress shall make no law respecting an establishment of
 religion, …” That’s it. And Walpin devotes a chapter to discussing God in the Constitution and never mentions this inconvenient clause of the Constitution and then berates the Court when it gives voice to this Constitutional mandate.

I could go on chapter after chapter citing these errors of omission and commission, but that would make this review intolerably long. So let me mention just one other deliberate distortion. In discussing the seminal case of Roe v. Wade, which legalized abortion, Walpin gives the impression that the concept of a Right to Privacy was first enunciated in Roe. In fact it was put forth in Griswold v. Connecticut, 381 U.S. 479 (1965) a case that gave constitutional protection to contraception. Why was this not mentioned? I suggest it was because a right to contraception is not controversial.To a large extent Walpin argues for a theory often ascribed to putative Supreme Court Justice Robert Bork known as “Originalism”, which to a large extent acts as though the Constitution had never been amended, the Civil War had never been fought, and particularly the 14th and 15th amendment had never had been enacted. Yet Justice Bork himself appears to now have repudiated this doctrine.

In a book that he co-authored [It can be found here.] there is set forth in its Introduction: 

“Regrettably, but perhaps inevitably, ‘[t]he ink was not yet dry on the Constitution when its revision began.’ Almost immediately, Congress began pressing beyond specifically enumerated powers granted it in Article I. As a result, today, Americans encounter a national government far more expansive than the Framers and men of their generation could ever have imagined…

“Uncertainty stems, in part, from the recognition that the scope of the commerce power has expanded so far beyond the original understanding of that power's boundaries that any attempt to adhere strictly to its original meaning today would likely be futile and inappropriate… “There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them.”

And at a later point he goes on to say: “When the world has changed but the underlying constitutional principle remains, the task for those ‘in this generation [is] to discern how the framers' values, defined in the context of the world they knew, apply to the world we know.’ The world we know includes the long-standing jurisprudence on the commerce power because ‘[w]hen there is a known principle to be explicated the evolution of a doctrine is inevitable."I wish I could say positive things about a book written by one with such a brilliant career, but alas, I cannot.

Walpin’s Rebuttal:

I thank Mr. Scheller for his candor in conceding that, before he read my book, he had already decided that he would not agree with its conclusions. Significantly, he doesn't even dispute the basic lesson of my book - that a majority of justices have too frequently substituted their personal views for what our Founders intended the Constitution to mean, many times also ruling contrary to earlier Supreme Court precedents.

While I will not spend my time responding to each nit-pick that those who read my book (with a closed mind) claim to find, I will exemplify the basic error in Mr. Scheller's comments by responding to two of his meritless assertions. First, he proclaims that the Declaration Of Independence has "no legal standing in our jurisprudence." That assertion disregards about 200 Supreme Court opinions that cite the Declaration Of Independence. Here is one example, Cotting v. Godard, a 1901 opinion, very telling in its words that directly controvert Mr. Scheller's criticism. First, the Court referred to the Declaration Of Independence as the "first official act of this nation" that "declared" this government's "foundation" - just the word Mr. Scheller chastises me for using. And then the Supreme Court repeated what it had said in an 1886 opinion: "It is always safe to read the letter of the Constitution in the spirit of the Declaration Of Independence," i.e., the Declaration Of Independence, where relevant, should be considered in deciding the meaning of the Constitution.

Let's also look at the specifics of what Mr. Scheller was arguing when he asserts the current irrelevancy of the Declaration Of Independence. According to him, the Declaration's recognition of God as "the source of all rights" was rejected by the adoption of the Constitution. He fails to explain how the same generation, including eight of the same people who signed the Declaration and were also personally involved in drafting the Constitution, would only 11 years later suddenly discard God from that central place of recognition in our Country. Also, he is forced to ignore, because it cannot be reconciled with his exiling God from our Country, the many examples in my book of our Country's succeeding generations' reaffirmation of the Declaration's recognition of God, in placing "In God We Trust" on our Country's issued money, and choosing it as our Country's motto.

A second Mr. Scheller's meritless attacks on my book: He faults me for "giv[ing] the impression that the concept of a right to privacy was first enunciated in Roe" in 1973. He cites Griswold v. Connecticut, 8 years before Roe, as having given "Constitutional protection to" person's privacy. Mr. Scheller ignores several pages at the beginning of this chapter, where I relate that the Constitution's Bill of Rights created a right to privacy in the specified contexts of those provisions, such as, "the right not to have the privacy of one's home, property, and body violated by any unreasonable search (Fourth Amendment.)" Unlike what Mr. Scheller asserts, the 1965 Griswold case was nothing more than a reaffirmation that the Fourth Amendment protected husbands and wives in their home from an invasion of police to determine if they were using condoms or other birth-control devices. See this language from the Griswold opinion: "The Fourth Amendment explicitly affirms the `right of the people to be secure in their persons, houses ... against unreasonable searches and seizures," not "allow[ing] the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives." This was a quote from NAACP v. Alabama, 377 U.S. 288, 307. This was consistent with a 1967 Supreme Court decision - 2 years after Griswold that rejected "a general `right of privacy'." Thus, when Roe suddenly "found" a general right to privacy, it was creating a right that the Court, six years before, had ruled did not exist.
Enough said. Mr. Scheller can continue his nit-picking, to which I will no longer respond. I prefer instead to leave the evaluation of my book to those who read it with an open mind.

My Sur-Rebuttal:

Mr. Walpin thanks me for my candor “in conceding that, before (I) read (his) book, (I) had already decided that (I) would not agree with its conclusions. That should not be a surprise to him since, as he well knows, I am thoroughly familiar with his views, but even if I weren’t, the endorsement of his book by Professor Yoo, the author of the infamous torture memo, would have given more than a clue.

But in an age when most people only read that which they expect to agree with, Mr. Walpin should give me credit for reading that which I had every expectation would be opposite to my deeply held views. Be that as it may, Mr. Walpin should thank me, for nothing propels an interest in a book more than controversy, and I note that since I posted my critique the number of people who posted favorable comments on his book went from one to three.

But allow me to respond to Mr. Walpin’s post.

Mr. Walpin writes in his rebuttal: “Significantly, he doesn't even dispute the basic lesson of my book - that a "majority of justices have too frequently substituted their personal views for what our Founders intended the Constitution to mean, many times also ruling contrary to earlier Supreme Court precedents.”

Indeed I do not dispute that a majority of justices have too frequently substituted their personal views for what the Constitution provides, many times also ruling contrary to earlier Supreme Court precedents!” But Walpin turns the situation on its head. It is the Robert and the Rehnquist courts that have consistently used a bare 5-4 majority to strike down years of precedent and been a far more “activist court” than any in recent memory. Allow me to quote from Professor Winkler’s excellent essay to be found on the SCOTUS blog here.

“Since John Roberts became Chief Justice in 2005, the Court has issued one landmark ruling after another. The Roberts Court gave us Citizens United, which struck down longstanding limits on corporate political spending. This Court also allowed new restrictions on women’s right to choose; became the first Supreme Court in American history to strike down a gun control law as a violation of the Second Amendment; effectively outlawed voluntary efforts by public schools to racially integrate; and curtailed the reach of environmental protections.

“In many of these decisions, the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old. Prior to Citizens United, the Supreme Court had explicitly held in two cases that corporate political expenditures could be limited – the most recent of which was handed down in 2003. Six years before the Roberts Court upheld the federal ban on “partial birth” abortion, the Rehnquist Court, which wasn’t known for its liberal leanings, had overturned a nearly identical law.

“Of course, the Roberts Court isn’t the first to overturn precedents and issue major rulings. Yet this Court has been uniquely willing to do so by sharply divided 5-4 majorities. The Warren Court’s Brown decision was famously 9-0. New York Times v. Sullivan, which freed up the media to discuss public figures, was decided by the same margin. Gideon v. Wainwright, on the constitutional right to counsel, and Loving v. Virginia, invaliding bans on interracial marriage, were also unanimous. Even Roe v. Wade was decided by an overwhelming 7-2 vote.”

And this quote from Professor Winkler does not even touch upon the unprecedented decision in Bush v. Gore where the court took the unprecedented step of choosing the next President of the US by a partisan 5-4 decision, nor the very recent decision in SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. where the court struck down a statute specifically authorized by the 15th Amendment, which provides: 

“SECTION. 1. The right of citizens of the United States to
 vote shall not be denied or abridged by the United States or by 
any State on account of race, color, or previous condition of servitude. 

SECTION. 2. The Congress shall have power to enforce this 
article by appropriate legislation.” 

The power was given to Congress to decide what the appropriate remedy is, not the court’s. Yet SCOTUS by 5-4 decided that Congress used bad judgment, and took it upon itself to declare unconstitutional that which the Constitution expressly authorized Congress to decide.

But let me now return to Mr. Walpin’s attack on me. He refutes my contention that the “Declaration of Independence” is not the law of the land and claims “200 Supreme Court opinions that cite the Declaration Of Independence.” He then goes on to say, “Here is one example, Cotting v. Godard, a 1901 opinion, very telling in its words that directly controvert Mr. Scheller's criticism.”

But its words don’t, and it doesn’t.

Allow me to quote from that decision, “such declaration of principles (referring to the Declaration of Independence) may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, …” (Emphasis added).

Did Mr. Walpin think I would not bother to read the decision?

But in insisting that the Declaration of Independence somehow overrules the clear mandate of the Constitution, “Congress shall make no law respecting an establishment of 
religion”, he insists on pretending that this language does not exist. He then asks me to explain: “How suddenly (the founders would) discard God from that central place of recognition in our Country”. But they didn’t! They simply said, as the Supreme Court has held, that it is not the Government’s place to be involved in religion. It belongs in the private sphere, and that has served this country well.

But then Walpin goes of the rails on the Courts history on “privacy” and goes from distorting to dissembling.

In writing about the Griswold case, Mr. Walpin writes and I quote “Unlike what Mr. Scheller asserts, the 1965 Griswold case was nothing more than a reaffirmation that the Fourth Amendment protected husbands and wives in their home from an invasion of police to determine if they were using condoms or other birth-control devices.”

But that is patently untrue. The defendants in the Griswold case were charged with, and I quote from the Court’s opinion: “(giving) information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.” 

And the statute that was before the court in the Griswold case provided in Section 54-196: 

“Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”

Does that sound like it was about police invading anybody’s home?

Mr. Walpin accuses me of “nit-picking”. Does the exposure of such fundamental misstatements amount to “nit-picking”?

There should always be room for differences of opinion. But the misrepresentation and/or distortion of facts is inexcusable. This has become far too frequently the realm of our political discourse. I had hoped for something far better from Mr. Walpin, and I still hope for something better from him in the future.

Comments on the above are welcome and will be responded to, but will not be published or posted.

America’s Place in the World (Still More Discussion)

In my last post entitled "America’s Place in the World (More Discussion)" I set forth my exchange on this subject with Herb Reiner of Cedar Grove, NJ, and then set forth a somewhat lengthy exposition on the subject by Albert Nekimken of Vienna, Virginia.

I decided that I can most effectively juxtapose my views against Nekimken’s by interlineating my comments directly into his. I do so by showing Nekimken’s text in italics and my responses in bold type. Those who may want to re-read Nekimken’s views without distraction can do so by referring to my last post "America’s Place in the World (More Discussion)."

I found myself agreeing the most of your reply to Eric Offner, Did you? It doesn't sound that way! even while remembering that FDR's record was not unblemished: despite all of the admirable decisions that he made, which you summarize, he also refused to admit boatloads of desperate Jewish refugees, such as the ship St. Louis, that was ordered to turn around and return to Europe. 

I don't believe that this is a fair criticism. The immigration laws were clear, and these refugees were not eligible for entry under those laws. I don’t think Roosevelt had the power to ignore those laws. Also disappointing, recent biographical scholarship has revealed the extent to which he shared the general anti-Semitism of people of his class and times. Again I disagree! There is no indication that Roosevelt had anti-Semitic views. To be sure Cordell Hull, The Secretary of State did, but to a large extent Roosevelt was unaware of this, until much later when Morgenthau brought it to his attention Roosevelt was shocked but did not feel there was much he could do about it without shaking up his Administration and he wasn't about to do that.

Your rejection of Eric's list of historical sins of America on the world stage was justified insofar as it has been used as a justification for refusing to take action in Syria today. Nevertheless, it reminds us that nations, including America, make geopolitical and diplomatic decisions based mainly on contemporary perceptions of national interest, not according to high principals of morality. Not every Administration is equally guilty of this. Democrats are much more given to humanitarian considerations, than Republicans.  Clinton acted in Bosnia and Obama in Libya. Carter was always concerned with Human Rights.

More troublesome was your conclusion that the world needs a policeman and the U.S. should accept the mantle of that role because it can.

While I accept and even applaud some of our recent interventions, such as in Bosnia that were a relative success, or in Somalia, which failed, Somalia didn't fail! We didn't act! Overall I think your conclusion is flawed for the following reasons:

The listing below I think is the crux of your argument.

·As Eric's comments suggested, the reputation of the U.S. has been tarnished. The rest of the world is quite suspicious of American motives and tends to fly into a frenzy of conspiracy speculation about them rather than admire us for spending money and taking risks to "do the right thing" wherever that motive takes us. True! , But we can change that perception, if we follow a consistent policy that puts greater emphasis on human rights than national Rights. Can we do that politically, doubtful, but it is worth striving for.

·We also can't undertake the responsibility of being the world's policeman because most of the world rejects our authority in this role, even if a minority welcomes it. This ambivalence results in a high potential that our efforts will continue to have unintended, or counterproductive results. Not so! Neither Bosnia nor Libya had that effect.

·We can't afford to be the world's policeman in terms of either money or manpower. How reminiscent of the mood in 1939. Expensive foreign interventions risk pushing our debt to arguably unsustainable levels while our economy remains weak and the need for domestic spending rises due to demographic changes, globalization, automation and other factors that are shrinking the size of the tax-paying workforce to historic lows. Limited intervention does not have very high costs and non-American lives have just as great value as American ones. Neither Bosnia nor Libya had a major impact on our budget. Iraq is always the bugaboo but that was the wrong war with the wrong commitment.

Also important, we can see from the results of the Iraq and Afghanistan interventions that the detrimental effects on our own military--individual soldiers, preparedness infrastructure and stockpiles--have been considerable and were likely understated. At least one-third of the soldiers returning from those battlefields bring with them serious, lifetime mental and physical disabilities that will require expensive attention for many decades.

But you and those likeminded keep coming back to Iraq and Afghanistan.  Those are not relevant models and references to those are misleading and inapplicable.

·For this reason, new initiatives that put the U.S. in the role of world policeman will inevitably catalyze the trend now underway to replace human soldiers with increasingly automated drones and other robotic equipment. 

This will happen regardless of anything else. Technology, not policy drives this. 

·Even if this trend shows some success on financial and tactical grounds, it exposes us to very dangerous moral dilemmas. Automated drones are being now prepared for global deployment that will either not require human direction, The will always require human direction though from a remote location. or will prevent it as a measure to counter cyberterrorism. As this trend accelerates, so does the probability of error, collateral deaths and anti-American agitation. Only a Defense Department order prohibiting the use of self-piloted drones has prevented their deployment for now.  I don't understand this. Self piloted drones are in use. However, this prohibition will not last indefinitely and it has no effect on the rest of the world where the cost of conducting ever more deadly terrorist operations continues to fall along with fading moral scruples against launching strikes with inexpensive drones or chemical weapons. But this is not relevant to policing atrocities.

Worse, automated drone warfare risks depriving attacks of any identifiable geographical address. We attacked Afghanistan and Iraq because they were perceived to be harboring terrorists. In the future, we may not be able to identify either the source location or even the identity of the sponsors of terrorist activity. It's difficult to be an effective policeman when you can't locate the criminals. Now you are talking apples and oranges. Dealing with terrorists is something we are doing, and will continue to do. It has its challenges as you point out. But it has nothing to do with intervening when mass slaughter on the scale of the Nazis, or in Bosnia and/or Kosovo or in Rwanda, takes place, and as we saw in Bosnia and Libya, it does not require boots on the ground, or even huge expenditures. You are raising a great many irrelevancies and bugaboos.

·Returning to Syria, there seems to be general agreement that, if it had been possible for the U.S. to use military force to quickly eliminate Syria's chemical weapons, we probably should have done so. However, to attempt to do this without a U.N. mandate, without good intelligence about the location of the weapons (which have already and obviously been dispersed or hidden), there was a high probability that our effort would have failed and only worsened the situation. Chemical weapons have not been the issue until now! It has been the slaughter of peaceful demonstrators. Right then and there we should have told Bashar al-Assad, stop or there will be consequences, followed by drone attacks on airfields and on anti aircraft batteries until his capacity to use those weapons was suppressed. Anti tank weapons, to the secular forces would also have made sense.

·Even Israel next door was ambivalent about the wisdom of a unilateral attack on Syria's chemical stockpiles by the U.S.  Nobody has suggested an attack on the chemical weapons.  Such action would only have pleased Saudi Arabia, which continues to sit on its hands and treasure, refusing to risk either--and Turkey whose president, Erdogan, has deployed only his big mouth and volunteered the U.S. to undertake all the risks and costs.

·Erdogan complains with justice that no country has even stepped up to help the refugees who have fled Syria and are living under desperate situations in neighboring countries. Erdogan is absolutely right! His country is bearing the brunt of caring for Syrian refugees, while we are doing nothing to help them. He is in no position to unilaterally take on Bashar al-Assad. (Apparently, such spending doesn't pump money into the hands of defense contractors or create many jobs in American congressional districts, so it has little appeal.) This last is unworthy of you! As you well know I am not looking for spending more on armaments and the humanitarian actions I am urging, have nothing to do with defense contractors. They will do very well regardless.

The slaughter of innocent civilians, whether Jews in Germany or the Soviet Union, or Slavs, or Africans, cannot be permitted. Better that we can unite on it, but it cannot be tolerated unless you feel that the worlds polices toward the Jews in the Holocaust was right. Russia or for that matter China cannot be allowed to be the dogs in the manger, who continues the defense of the indefensible and the absolute obstacle of humanitarianism.

It seems to me your instincts are pacifist and even suggest isolationism, which after Iraq and Afghanistan has gripped the country, just as it did after the WWI.

Final comments, questions, or corrections, are welcome and will be responded to, but not distributed.

America’s Place in the World (More Discussion)

With my temporary return to my blog, I posted my exchange with Eric Offner of Manhasset Hills, NY, in a blog entitled "America’s Place in the World." Subsequently, I posted discussions with Janet Cooke of Philadelphia, PA, Nancy Vierra of Silver Springs, Maryland, and Herb Reiner of Cedar Grove, NJ in my blog post entitled "America’s Place in the World (Discussion).

Since the discussion with Reiner has continued, I now want to share that with you, and also add a rather lengthy analysis, which came from Albert Nekimken of Vienna, Virginia.

Herb Reiner countered my last repost with:

Yes, Emil, I am not unsympathetic to your point of view. In fact I believe we are now giving substantial military aid to groups we believe are secularist. But the situation on the ground is so chaotic and confusing that I doubt our government is flexible and smart enough to insure our weapons won’t end up in the hands of our enemies. This country has been hurt many times because of our failure to understand the limits of our power and the unintended consequences of military action. 

To which I responded with:

I don't agree that we have been hurt primarily by "our failure to understand the limits of our power and the unintended consequences of military action". We have been hurt most when we act in our primary interests; when we are obsessed by a narrow view of our interests. In Iraq, Bush I acted on principle. It served us and the world well. Bush II was obsessed with power. Even when the UN inspectors said "no weapons of mass destruction", he was determined to proceed and then he destroyed the institutions that made governing possible. We should not learn the wrong lessons from that debacle, or from Vietnam where we kidded ourselves that we were fighting Communism, when we were in fact fighting to maintain French colonial interests.

When we act on our "better angels of our nature" to quote Lincoln, we actual serve our national interests best.

Our actions in Syria and elsewhere must be directed by our best humanitarian instincts, and not by a narrow view of National Interest, or at least that is my view.

I doubt that we disagree on principle, but isolationist voices have been loud and have found lots of reasons to support their narrow view. Obstacles can always be found for not doing what one has no interest in doing.

And finally Albert Nekimken set forth his views as follows:

Your commentary arrived yesterday and I received it with great pleasure. 

  

I have been hopelessly behind in attending to my e-mail and other correspondence for some time. I did realize that you were frustrated by your inability to establish any kind of regular, timely dialogue with your correspondents, but the best I was able to do was to set up a dedicated mailbox in my Outlook program to capture and save all of your commentaries. My plan was to reply to them when possible, even if after a rather long delay. It was certainly never my intention to ignore them. 

  

Due partly to the weight of my sense of guilt over this prior neglect and the gravity of the Syrian issue, however, I did want to take a few minutes to send an immediate reply. 

  

I found myself agreeing with most of your reply to Eric Offner, even while remembering that FDR's record was not unblemished: despite all of the admirable decisions that he made, which you summarize. He also refused to admit boatloads of desperate Jewish refugees, such as the ship St. Louis, that was ordered to turn around and return to Europe. Also disappointing, recent biographical scholarship has revealed the extent to which he shared the general anti-Semitism of people of his class and times. 

  

Your rejection of Eric's list of historical sins of America on the world stage was justified insofar as it has been used as a justification for refusing to take action in Syria today. Nevertheless, it reminds us that nations, including America, make geopolitical and diplomatic decisions based mainly on contemporary perceptions of national interest, not according to high principals of morality. 

  

More troublesome was your conclusion that the world needs a policeman and the U.S. should accept the mantle of that role because it can. 

  

While I accept and even applaud some of our recent interventions, such as in Bosnia that were a relative success, or in Somalia, which failed, overall I think your conclusion is flawed for the following reasons: 

   

1.) As Eric's comments suggested, the reputation of the U.S. has been tarnished. The rest of the world is quite suspicious of American motives and tends to fly into a frenzy of conspiracy speculation about them rather than admire us for spending money and taking risks to "do the right thing" wherever that motive takes us. 

  

2.) We also can't undertake the responsibility of being the world's policeman because most of the world rejects our authority in this role, even if a minority welcomes it. This ambivalence results in a high potential that our efforts will continue to have unintended, or counterproductive results. 

  

3.) We can't afford to be the world's policeman in terms of either money or manpower. Expensive foreign interventions risk pushing our debt to arguably unsustainable levels while our economy remains weak and the need for domestic spending rises due to demographic changes, globalization, automation and other factors that are shrinking the size of the tax-paying workforce to historic lows. 

  

4.) Also important, we can see from the results of the Iraq and Afghanistan interventions that the detrimental effects on our own military--individual soldiers, preparedness infrastructure and stockpiles--have been considerable and were likely understated. At least one-third of the soldiers returning from those battlefields bring with them serious, lifetime mental and physical disabilities that will require expensive attention for many decades. 

  

5.) For this reason, new initiatives that put the U.S. in the role of world policeman will inevitably catalyze the trend now underway to replace human soldiers with increasingly automated drones and other robotic equipment.  

   

6.) Even if this trend shows some success on financial and tactical grounds, it exposes us to very dangerous moral dilemmas. Automated drones are being now prepared for global deployment that will either not require human direction, or will prevent it as a measure to counter cyber terrorism. As this trend accelerates, so does the probability of error, collateral deaths and anti-American agitation. Only a Defense Department order prohibiting the use of self-piloted drones has prevented their deployment for now. However, this prohibition will not last indefinitely and it has no effect on the rest of the world where the cost of conducting ever more deadly terrorist operations continues to fall along with fading moral scruples against launching strikes with inexpensive drones or chemical weapons. 

  

7.) Worse, automated drone warfare risks depriving attacks of any identifiable geographical address. We attacked Afghanistan and Iraq because they were perceived to be harboring terrorists. In the future, we may not be able to identify either the source location or even the identity of the sponsors of terrorist activity. It's difficult to be an effective policeman when you can't locate the criminals. 

  

8.) Returning to Syria, there seems to be general agreement that, if it had been possible for the U.S. to use military force to quickly eliminate Syria's chemical weapons, we probably should have done so. However, to attempt to do this without a U.N. mandate, without good intelligence about the location of the weapons (which have already and obviously been dispersed or hidden), there was a high probability that our effort would have failed and only worsened the situation. 

       

9.) Even Israel next door was ambivalent about the wisdom of a unilateral attack on Syria's chemical stockpiles by the U.S. Such action would only have pleased Saudi Arabia, which continues to sit on its hands and treasure, refusing to risk either--and Turkey whose president, Erdogan, has deployed only his big mouth and volunteered the U.S. to undertake all the risks and costs. 

       

10.) Erdogan complains with justice that no country has even stepped up to help the refugees who have fled Syria and are living under desperate situations in neighboring countries. (Apparently, such spending doesn't pump money into the hands of defense contractors or create many jobs in American congressional districts, so it has little appeal.)

Next time I will set forth my response to Nekimken. And then once again ride into the sunset.

I no longer invite comments! 

All good things must come to an end and so this discussion too must end.

America’s Place in the World (Discussion)

Hopefully, many of you have by now read my recent commentary entitled “America’s Place inthe World."

I have had a number of comments and exchanges as a result of that posting, and would like to share that discussion with you.

Janet Cooke of Philadelphian, Pennsylvania wrote:

I was just thinking about your blog and that I was missing hearing what you might be thinking about this budget/healthcare/threaten to shut down the government fiasco we are witnessing in Washington now!  I was planning to communicate with you this morning about missing your commentary -  and then I opened the email from you and found the comments from Eric re: Syria, etc., and your response.   

 Not the topic that was on my mind but good to hear your thinking!  I'm always glad to learn what you're thinking about situations and behaviors that amaze and overwhelm me.  The budget stuff and the ridiculous but dangerous(?) behavior of the Republicans is of great concern.  Maybe, because like you, I've wanted to expect so much better behavior from members of our government, it's especially upsetting. I am tuned in.

To which I responded:

With respect to the shutting down of the government and the even more serious imminent failure to raise the debt ceiling there is not much to say. It is akin to a father, (or a mother) taking one of their children hostage and demanding ransom for not harming such a child. Will the mother (or father) pay! Probably yes. But when that happens again and again, without any assurance of the safety of the child or even children, there comes a time when it is necessary to say no more. These are our children. This is our economy. This is the world economy. You can't use that for blackmail.

The trouble with paying ransom to hostage takers is that the more one pays, the more it encourages the hostage-taking. No matter what the cost, at one point one has to refuse or there is no end to it. The ransom will just keep going up. 

However, even though you feel this crisis is front and center, I would still like to have your input on my exchange with Eric Offner on the Syria debacle.

Nancy Vieira, who works for the National Institute of Health, and is domiciled in Silver Springs, Maryland, contributed the following:

So good to read your column once again! Thank-you for deciding to respond to your friend’s provocative email and for posting it on your web site for us (always!) interested readers.  

It never ceases to amaze me how cruel and barbaric the “civilized” human species can be. I will never forget watching a live broadcast from a hut in Rwanda and, as the journalist spoke in the doorway of the hut, seeing in the background, down the dirt road, 2 men with machetes hacking away at “something” on the ground (a fellow human being was my presumption). Striking with a machete and seeing up close what it is you are actually doing to a “living thing”, to me, is mind boggling enough. But, dropping a bomb of chemical weaponry on your own citizens, innocents, while comfortably sitting at home with plenty of food, water, all the comforts of modern day living and family and friends, not ever having to see the chemical damage inflicted upon the human and other animal species up close and personal, their suffering, is unconscionable.   

And, to turn one’s head and say, “it’s not my problem” is also unconscionable. I cannot imagine how a human being can justify condoning these acts of vicious cruelty. I can only hope that, one day, we will all live in peace on this planet.

Prompting me to reply as follows:

Thanks for taking the time to comment.

You are one of very few, who has seen barbarity up close. Every time we close our eyes we become accomplices. It is so easy to say there is nothing we can do. There is always something we can do. Where there is a Will, there is a Way. 

It is high time for us to take the words, "NEVER AGAIN" seriously". But it isn't only chemical weapons that should arouse our ire, as horrible as they are. Every time we condone atrocities, and in Syria we should have acted after the Hama murders in 1982, which few people even remember. (I might add that I had not remembered it until I read Thomas Friedman's book "From Beirut to Jerusalem" published in 1989, but not read by me until three years ago. It is still an eye opener.

Again thank you for taking the time to write.

And finally, Herb Reiner, of Cedar Grove, NJ expressed this view:

Glad to hear from you that you’re well and glad to see that you have not lost interest in expressing your political views despite the lack of response to your last commentary. I will just add a few observations to chew on. 

  

Firstly, the distinction between a civil war and a revolution is nebulous and in the case of Syria one can truly say it is both. The Syrians are certainly not fighting against a foreign occupying power. 

  

Secondly, even from the early stages of the conflict, Obama realized that the Opposition was fractured and disorganized. The most motivated and well organized among them were the Islamist, who today appear the strongest among the opposition groups. Obama was always left with bad choices, but I believe his reluctance to supply heavy weapons was justified.  The secular groups, it seems are welcoming all the support they can get from the Islamists and it is not clear who would control our heavy weapons.  Let's not forget how the Stinger missiles we supplied to Pakistan were used to shoot down our own aircraft.  

  

Thirdly, it may be beyond the power of even the most powerful military in the world to alone help "people being slaughtered," without engendering even worse consequences. We should be thankful that Obama did not have to carry out his threat against Assad crossing the red line with the fantasy of a quick in-and-out punishment, which would kill even more innocent victims and could plunge the whole region into chaos.  As for overthrowing Assad  -- be careful what you wish for, you just might get it!  

 Best wishes and keep writing and thinking.

Prompting this response on my part:

It’s so good to hear from you and to have the benefit of your views.

It is so easy to find reasons to close one's eyes. Maybe, because of my background as a Holocaust survivor, who remembers, and who has studied the history of that atrocity while the world found just as many reasons to close its eyes. There were worse things than Hitler they said. We should be worried about the Communists, not the Nazis. What business is it what happens to German Nationals? We must not interfere in their sovereign affairs.

Above all we have our own problems with high unemployment, and didn't we have enough getting involved in European affairs in World War I.

Even when Britain was on its last legs, they argued it is only about protecting the British Empire, what do we care. 

I fear that what we are witnessing is neo-isolationism.

Yes, I hear the arguments that you are making. But that was not true in the beginning. In the beginning we witnessed peaceful demonstrations of an oppressed people and we saw Hama of 1982 all over again. That was the time to say NO - NOT AGAIN! This will not stand!! At the very beginning a no fly zone, which could have been attained with weapons fired from off shore at airbases, should have been imposed. It would not have been 100% successful. So what. It would have made a difference.

Yes, a lot of extremist elements have reared their ugly head. But that is because we stood aside. If we wouldn't help them others will jump in. And so they did. But even now we see battles between secular groups and religious ideologues. Why don't we help the secularists? The longer we don't help them, the more a desperate people turn to the Jihadists. Our failure has helped the Jihadists and continues to help them. But above all where is our sense of compassion; our sense of justice.

Now as to Stinger missiles. The problem is not that we supplied them to Pakistan. We supplied them to the Taliban to shoot down Soviet planes in the Soviet-Afghanistan campaign. Was that a mistake? NO!!!!! At a time when we were in a life and death struggle with the Soviets, handing them a major defeat was the first, and possibly only, priority. In any case Stinger missiles have not been our major problem in Afghanistan. Very few of our planes have been shot down by Stinger missiles. In fact we have lost very few planes. The weapons that have bedeviled us are IEDs, the roadside bombs, not Stinger missiles. That is a phony argument that is being used. But, carefully selected groups would minimize the risk if any. 

Does anyone really think that if we stand aside and don't try to influence events that things will turn out better than if we do? That doesn't work in private life and it doesn't work in public events. Trying, even if sometimes failing to influence events, is almost always the better course. 

As for "plunge(ing) the whole region into chaos" this is not what our action would do. It is our non-action that is doing this. Our non-action is destabilizing Turkey, Jordan, Lebanon, and possibly others. Both Turkey and Jordan have been begging us to help.

This argument is essentially one to be left to the Right. Laissez-faire is an argument that should be left to the proponents of the Right. Pacifism sounds good. But is has never worked. Isolationism has its appeal, but it too has never worked.

I continue to invite comments, questions, or corrections, and will respond to them. I will distribute such exchanges with attribution, unless the writer requests that he/she not be identified.