The Real News of the Month

July 2005
Volume 11, Number 7

Editor: Joe Sobran
Publisher: Fran Griffin (Griffin Communications)
Managing Editor: Ronald N. Neff
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  -> Reagan's Folly
  -> The Moving Picture
  -> Editorial Note
  -> The Judicial Veto
Nuggets (plus electronic Exclusives)
List of Columns Reprinted in This Issue



Reagan's Folly
(page 1

     As I write, the retirement of Sandra Day O'Connor 
from the U.S. Supreme Court has taken Washington by 
surprise. Most people assumed that Chief Justice William 
Rehnquist, struggling with cancer, would step down before 
Justice O'Connor {{ (who conquered her own cancer a few 
years ago). }}

     O'Connor was appointed to the Court by Ronald Reagan 
in 1981, fulfilling his campaign promise to name the 
first woman justice. {{ Great was the rejoicing in the 
media. Not so great has been the nominee herself. }} Like 
most such "historic firsts" {{ (Thurgood Marshall comes 
to mind), }} she was welcomed with praise she had done 
nothing to merit and would do little to justify later.

     According to one rumor I heard at the time, Reagan 
had told her the seat was hers if, but only if, she 
pledged to vote his way on the next abortion case to 
reach the Court. She so pledged. But she turned out to be 
Reagan's Folly. Over the years, she proved not to be a 
consistent conservative, or for that matter, a consistent 

     It was her inconsistency that became her trademark. 
She had no discernible philosophy, except maybe
country-club Planned Parenthood Republicanism. {{ This 
meant that you never knew which way she was going to vote 
on a given case. }} But, with Anthony Kennedy, another 
Reagan pick, she did join the liberals in most rulings on 
abortion and other "social issues." On the whole, she 
left conservatives annoyed and disappointed. But she 
endeared herself to liberals as the "swing vote" who was 
there for them when they needed her. She'd done almost 
nothing to reverse their accumulated gains.

     The surprise of O'Connor's retirement lasted about 
ten minutes, and was then followed by preparations for a 
confirmation rumble to match those of Robert Bork and 
Clarence Thomas. Senate Democrats warned President Bush 
that he'd better choose a judge from the "mainstream," 
another "moderate" {{ -- that is, a reasonably orthodox 
liberal, especially one who won't give them grief on 
abortion -- }} to fill her seat, or else. (Ted Kennedy 
brandished the brass knuckles he'd used on Bork.) But 
now, in contrast to the Bork-Thomas days, Republicans 
control the Senate and, for a change, they seem disposed 
to fight for whomever Bush names; {{ if he names a 
conservative, he will also enjoy the support of the 
powerful right-wing propaganda apparatus that has emerged 
since the Clinton era. (If he picks someone the Democrats 
can be content with, he will alienate his own base.) }}

     Bush and his guru, Karl Rove, aren't principled 
conservatives, but they are proven political winners. 
They want to consolidate Republican dominance over the 
country, and only the Supreme Court remains to be 
conquered. The Democrats' demand for compromise, on the 
other hand, means they know the most they can hope for is 
half a loaf. Bush and Rove would be foolish, and out of 
character, to give them that much.

     Which is all very well for Bush, Rove, and the 
Republicans. But one-party control isn't a cure for 
what's wrong with the Federal judiciary. The flaw is more 
than a personnel problem that can be fixed by appointing 
"better" justices. It lies in the very nature of the 
judicial power created by the Constitution itself, and 
aggravated by later amendments and perverse 

The Moving Picture
(page 2)

     The tardy revelation that a disgruntled FBI man was 
"Deep Throat," the mysterious WASHINGTON POST source 
during its Watergate reporting, caused excitement among 
the capital's senior liberals. Everyone else, however, 
seemed to need an explanation: Why does it matter? Well, 
in a way it never did. But the People Who Counted in 
those days had decided that Nixon was a monster ranking 
just below Joe McCarthy and the Emperor Nero, and nailing 
him had become their obsession. Actually, Nixon was quite 
a conventional politician, and liberals have never been 
properly grateful to him for expanding the government's 

*          *          *

     Phony indignation is the currency of American 
politics, and Karl Rove has stirred up a lot of it by 
charging that liberals responded to the 9/11 attacks by 
wanting to offer "therapy." Absurd, of course, but no 
more so than many things the two parties say about each 
other. It was once routine for Democrats to charge Ronald 
Reagan with making "war on the poor," even as he approved 
huge increases in socialist spending programs.

*          *          *

     The neocon agenda for the Middle East has gone from 
"regime change" to cultural transformation, a goal 
President Bush is dutifully pursuing. Since a culture is 
a complex set of deeply ingrained habits, often ancient, 
we may wonder how many troops on the ground will be 
required to achieve equality of the sexes among Muslims 
within the next couple of years. This must be the only 
project for which Bush isn't willing to budget enough 

*          *          *

     Though I no longer share the late James Burnham's 
views on the Cold War, I'll always remember, with 
admiration, the hard-headed lucidity he brought to 
geopolitical analysis. I worked with him for years at 
NATIONAL REVIEW, and reading some of his old columns 
again causes me to reflect not only that he couldn't 
write for the magazine today: he wouldn't even bother 
reading it. Bellicose jingoism was never his style.

*          *          *

     Not that Burnham wouldn't have had valuable things 
to say about the post-Cold War world; his mind always 
adapted readily to the logic of new situations. In the 
mid 1970s he saw that terrorism posed problems that 
democracies are poorly equipped to deal with, and he 
predicted that it would only increase in the years ahead. 
The Bush administration's response to it would have 
struck him as futile and self-defeating.

Editorial Note

     In order to bring the July issue to you, we have 
reprinted three columns which have not previously 
appeared in SOBRAN'S newsletter. Every year, Joe writes at 
least 104 columns. Since we reprint only 6 columns per 
issue, that leaves at least 32 columns every year that 
are not included in the newsletter. The choice of which 
ones to omit is not easy: sometimes events at the time 
seem to suggest one column over another, and sometimes 
excellent columns get left behind.

     These three columns (on pages 5, 6, and 7) fall into 
that category. They are much older than the reprints we 
usually use, but I think you will agree that their 
quality more than makes up for their age.

                                        -- Ronald N. Neff
                                          Managing Editor

The Judicial Veto
(pages 3-4)

     When the U.S. Supreme Court ruled, in early June, 
against state laws allowing the use of marijuana for 
medical purposes -- relieving the agony of cancer 
patients, for example -- the 6-to-3 majority wasn't 
taking a stand against grass. It was reaffirming the 
sovereignty of Federal laws over state laws.

     Since 1942, when {{ Franklin Roosevelt's }} Court 
held that Congress's power to "regulate" interstate 
commerce is virtually boundless, the judiciary has made a 
habit of subordinating the entire U.S. Constitution to a 
few phrases that trump the rest of the document. As 
Clarence Thomas put it, in his dissent in the present 
case, "If Congress can regulate this under the Commerce 
Clause, then it can regulate virtually anything, and the 
Federal Government is no longer one of limited and 
enumerated powers."

     Well, that's more or less the idea. In the 1942 
case, the Court ruled that an Ohio farmer who grew grain 
on his own property to feed his own cattle was engaged in 
interstate commerce, because if everybody did it, grain 
prices everywhere would be affected, don't you see. 
Somehow this was "commerce," even though no money had 
changed hands. It was a famous victory -- for limitless 
Federal power. Neither side in the marijuana case 
questioned this absurd precedent.

     Even worse has been the High Court's abuse of the 
Fourteenth Amendment. Never mind that the amendment was 
very questionably ratified after the Civil War;
{{ seceding states ratified it under duress, as a 
condition of being readmitted to the Union (despite the 
Union's claim that they had never legally ceased to 
belong to it), and New Jersey's rescission of its 
ratification was disallowed. Very fishy -- but never 
mind. }}

     Eventually the Court used phrases in the Fourteenth 
-- especially "equal protection of the laws," in 
combination with the theory that the Bill of Rights 
somehow applied to state laws -- to declare innumerable 
state laws and policies unconstitutional. This led to the 
"historic" Court rulings so beloved of liberals: on the 
separation of church and state, loyalty oaths, racial 
segregation, public-school prayer, legislative 
apportionment, police procedures, pornography and 
censorship, contraception, abortion, capital punishment, 
welfare eligibility, sodomy laws, and myriad "rights" 
that could have occurred only to the American Civil 
Liberties Union. (Which, in fact, brought many of the 
lawsuits that gave rise to the Court's most outre 

     Over the past half century, the Federal judiciary 
has actually transformed American life far more than 
Federal legislation has. And even that legislation owes 
much to judicial support, especially to a broad 
interpretation of Congress's power over anything it 
chooses to call "interstate commerce." At every step, the 
judiciary has been virtually amending the U.S. 

     The Court's "activism" peaked, but didn't cease, in 
the era of Earl Warren, chief justice from 1953 to 1968. 
In fact some of its worst rulings came after Warren's 
departure, most notably Roe v. Wade in 1973, which has 
appalled even some pro-abortion liberals by its sloppy 
thinking and needlessly provocative transgression of 
ordinary political processes.

     Though he turned out to be unexpectedly liberal, 
Warren wasn't quite as bad as William Brennan, Thurgood 
Marshall, or William O. Douglas, all of whom remained on 
the Court after him, to be joined by Harry Blackmun, John 
Paul Stevens, and David Souter.

     It was no use pointing out that the Court's 
reasoning was flawed, or that its holdings defied history 
and plain language. "Congress shall make no law 
respecting an establishment of religion" doesn't mean, 
and never meant, "There shall be total separation of 
church and state, at every level of government." "The 
freedom of speech [and] of the press" doesn't mean, and 
never meant, an unqualified "freedom of expression," 
protecting topless dancing and the like. And to 
"regulate" meant to regularize, not to exert total 

     It all insulted common sense; but to this day, 
popular outrage at such "legislating from the bench" has 
hardly made a dent in the Court's arrogance. Today even 
conservatives take for granted that its most important 
function is to strike down unconstitutional laws, even if 
conservatives disagree with liberals as to what these 
are. By now judicial review is so well established that 
few can even imagine an alternative to it.

     And yet the Constitution itself says nothing about 
judicial review. The first notable case for the idea 
appears in Federalist No. 78, where Alexander Hamilton 
argues that if an act of Congress conflicts with the 
Constitution, the courts must {{ rule in favor of the 
Constitution and }} declare the act "void." Otherwise, he 
says, the act will supersede the Constitution. Thus 
judicial review appears to be a logical necessity of 
constitutional government.

     Chief Justice John Marshall repeated this argument 
substantially in his famous opinion in Marbury v. 
Madison, 1803, where he asserted the power of the Supreme 
Court to nullify unconstitutional acts of Congress. "It 
is emphatically the province of this court," he wrote, 
"to decide what the law is." This claim enraged President 
Thomas Jefferson, as well as others who feared an 
overweening judiciary as a threat to popular government.

     Marshall never fully exercised the power he claimed 
for the Court. In fact, the Court never declared an act 
of Congress unconstitutional until 1857, when Chief 
Justice Roger Taney's Court, in its Dred Scott decision, 
boldly pronounced the Missouri Compromise invalid, on 
grounds that Congress had never had power to prohibit 
slavery in the territories. {{ Taney's majority opinion 
needlessly inflamed the issue with gratuitous remarks 
about race. }}

     After the Civil War, the Court became more 
aggressive. Some of Abraham Lincoln's appointees, Chief 
Justice Salmon Chase for example, struck down laws they 
themselves had helped to pass!

     But, after all, these were =Federal= laws. In later 
generations the Court would declare =state= laws invalid, 
monotonously citing the Fourteenth Amendment in 
justification. Today it rarely strikes down Federal laws, 
but it exercises a virtual veto over state legislation.

     Jefferson bitterly opposed the whole principle of 
judicial review. Both Hamilton and Marshall became his 
personal enemies. To most Americans now, this seems 
almost incomprehensible; they assume that judicial review 
is a necessary component of the "checks and balances" 
they've been taught are essential to American government, 
and they can't even imagine an alternative. If the three 
branches of government are to be both "separate" and 
"equal," the judiciary must have some control over the 
other two branches.

     For Jefferson, as I read him, members of all three 
branches were bound by the Constitution as they 
understood it; but none could claim a special or 
exclusive power to impose its understanding on the 
others. The courts' opinions were binding only on the 
parties in cases before them; but lower courts, as well 
as the other branches, were free to take their own views, 
following their own reason and judgment. Even a Supreme 
Court ruling wasn't "the law of the land."

     And who ever said anything about equality among the 
three branches? Even Hamilton observed that the judiciary 
would be no danger to liberty because of its "natural 
feebleness." The legislative branch controls the purse, 
the executive the sword; but the judiciary, neither. It 
has "neither FORCE nor WILL but merely judgment," and 
depends on the executive even to enforce its judgments. 
It is "beyond comparison the weakest of the three 
departments" and "the least dangerous." For this reason, 
says Hamilton, judges must have lifetime tenure in order 
to preserve the independence of the judicial branch.

     Hamilton might have said more. Congress, with 
representatives elected by the people and senators chosen 
by the states, was to be "beyond comparison" the most 
powerful branch, since it had the power to impeach, and 
remove, members of the other two. The three branches were 
"co-ordinate," but far from equal.

     Curiously, Hamilton didn't foresee that the courts 
might be allowed to abuse their power, except perhaps 
with the connivance of at least one of the other two 
branches. And both he and Marshall failed to foresee what 
actually would happen: that a later amendment -- the 
Fourteenth -- would be used to wreck the whole 
constitutional design, by making nearly all state 
legislation subject to the Federal courts. Their notion 
of judicial review envisioned the Supreme Court as a 
check only on acts of Congress, not on acts of state 

     The key point here, ignored by nearly everyone, 
including the Court's most severe conservative critics, 
is that it's meaningless to speak of "checks and 
balances" when the states have no defense against the 
Federal courts. The problem isn't just "legislating from 
the bench"; it's the habitual usurpation of powers that 
belong to the states. And part of this larger problem is 
that the U.S. Senate no longer represents the states; the 
Seventeenth Amendment decrees that senators shall be 
popularly elected rather than appointed by state 
legislatures as of old. Few Americans realize that the 
Seventeenth destroyed what remained of the original 
balance between state and Federal power.

     The real remedy for judicial usurpation is, or 
should have been, impeachment. But this measure has 
seldom been used against members of the Federal 
judiciary; sometimes for personal offenses such as tax 
evasion, but never for the abuses of power that affect 

     So the original constitutional plan is good and 
dead. Far from curbing the unwarranted growth of Federal 
power, both the Senate and the Federal judiciary now 
consistently serve to centralize power and to further 
enfeeble state and local government. There is no mystery 
about it; it has all happened under our noses, with 
little opposition or even comprehension. Assured that 
this is how "our democracy" is supposed to work, the 
American people have passively assented to Federal 


AMIGO: President Bush was peeved when conservative groups 
served notice that they'd be mighty unhappy if he named 
Attorney General Alberto Gonzales, who seems to support 
legal abortion, to fill a Supreme Court vacancy. "I don't 
like it at all [that these groups are complaining]," Bush 
said. Naturally, since Gonzales is an old Texas pal and 
crony. He didn't say whether he liked it that the 
Democrats were praising the guy. (page 6)

SELECT FEW: The retiring Sandra Day O'Connor has joined 
Bob Dole, Orrin Hatch, Gerald Ford, Arlen Specter, and a 
handful of others in the Democrats' list of Great 
Republicans. Her mentor, Barry Goldwater, has long since 
been admitted. (page 7)

MEDIA MARTYR: NEW YORK TIMES reporter Judith Miller has 
been jailed for refusing to identify a source. Not that 
she should have to, but ever since Watergate the 
importance of confidential sources, official secrets, 
scoops, leaks, investigative reporting, and daily 
journalism itself has been vastly exaggerated, while the 
sanctimony of the press has correspondingly swollen. We 
don't need inside stories to tell us what's wrong with 
government. Our own principles should tell us all we 
really need to know. (page 9)

LITMUS TEST: Ann Coulter has the right idea: "We will 
accept only judicial nominees violently opposed by Chuck 
Schumer." (page 11)

Exclusive to electronic media:

SAY AGAIN? The London bombings of July 7 have left both 
supporters and opponents of the Iraq war claiming their 
views have been vindicated. Stanley Crouch of New York's 
DAILY NEWS says the war is "most deeply a war of ideas in 
much the same way that World War II was." I guess so, if 
you count crazy ideas.

TURNCOAT: What's with Christopher Hitchens? The 
brilliant, bilious British expat, once a Trotskyist, has 
abandoned the Left to support the Iraq war for reasons I 
continue to find obscure. Despite his withering criticism 
of Zionism (muted lately), the neocon press has happily 
adopted him. I miss the good old days when he was a 

(pages 5-12)

* The Bible and the Schools (November 18, 1999)

* Symptoms of Tyranny (November 28, 2000)

* Confessions of a Reactionary Utopian (March 27, 2001)

* The Acquittal (June 14, 2005)

* The Language of Lear (June 16, 2005)

* They Made Me a Flag-Burner (June 23, 2005)

* Brutus and the Court (June 30, 2005)

* Destroying the American Republic (July 5, 2005)


All articles are written by Joe Sobran.

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