Joseph Sobran’s
Washington Watch

Is It War?

(Reprinted from the issue of July 21, 2005)

The July 7 bombings in London have already provoked another huge flood of commentary, but little of it has been illuminating. There is a sense of exhaustion with the whole subject of terrorism. What is there to say that hasn’t already been said all too many times?

Moral indignation, practical advice, strategies for fighting the enemy — none of it is new. I too can only repeat myself. It does little good to think of this as a war. We can’t win, and our worst losses will be slight — fewer deaths than are suffered in most big clashes on a conventional battlefield. The 9/11 attacks caught us off guard, but they are unrepeatable. So the prospect is more of the same, on both sides, endlessly.

It’s hard even to imagine anything else — a new American superweapon that would flatten the enemy? It’s easier to picture the enemy getting devastating weapons (biological, perhaps) that would make further fighting futile — though this is probably also a fantasy.

A huge popular outcry in American elections in 2006 or 2008 might force a U.S. withdrawal from the Mideast, but this is hardly a more likely scenario. And without something like that, our politicians aren’t going to change. Any proposed retreat from U.S. global hegemony is immediately ruled out as “isolationism.”

It’s possible — we can always dream! — that the charge of isolationism will lose its sting. Americans may come to feel, if their frustration grows, that the Founding Fathers were right after all. But even those revered figures weren’t always consistent; even Thomas Jefferson was willing to send a navy to fight the Barbary pirates in the Mediterranean!

But for now, American politicians have every reason to feel that the “war on terrorism” has been good for business, in more ways than one. Except for those with safe seats, the few who have opposed it have been punished by the voters.

As far as the eye can see, Big Government, at home and abroad, is here to stay. When the country is in a conservative mood, it will elect politicians who profess to favor slightly smaller government, even as they keep increasing its size and scope. In real terms, George W. Bush is less conservative than Bill Clinton. Maybe the difference is that Clinton had to fool liberals, and Bush doesn’t.
 
The Court and the Wolves

No sooner had Justice Sandra Day O’Connor announced her retirement than rumors grew louder that Chief Justice William Rehnquist would soon follow her. This of course would give President Bush the rare opportunity to fill two vacant Supreme Court seats at the same time.

It might also present liberals with the difficult task of smearing two nominees at once. They have already cried “Wolf!” so often that the public may be skeptical the next time; but will it believe it is threatened by two wolves at the same time? Even the Three Little Pigs only had to worry about one.

But conservatives have their own wolf to worry about. Bush wants to nominate his old pal and crony, Attorney General Alberto Gonzales, who would be another O’Connor (or possibly another David Souter). So much for changing the Court’s balance, even if Bush also picks a conservative.

Bush has already expressed his annoyance with conservatives who are grumbling about Gonzales. In his second term he feels he can afford to kiss off part of his base, an act which, last year, might have cost him the election.

Besides, Gonzales would be easily confirmed. He would be another “historic first” — the first Hispanic on the Court — and liberals would find him acceptable. They are openly hoping for another O’Connor.

Be that as it may, conservatives should avoid investing too much hope in the Court. Anyone Bush chooses would probably do little to undo the Court’s liberal legacy; even if Roe v. Wade were overturned, nearly everything else would remain as it was, and few states would make abortion illegal again.
 
The Myth of “Checks and Balances”

The real problem lies in the Court itself. Not liberals on the Court, but the Court. Liberals have merely abused powers that were already there.

The powers assigned to the Supreme Court in the Constitution are few and apparently innocuous. Even so, opponents of the Constitution, even in 1787, smelled a rat. They objected to the absence of any means of correcting the Court’s errors, or of removing justices for anything but personal misconduct. They warned that the Court might assert broad claims in the future, even usurping the powers of the states.

This was prescient indeed. The Court was supposed to be “beyond comparison the weakest” and “the least dangerous” of the three branches, according to Alexander Hamilton. It soon claimed, and later used, the power we now call judicial review — the power to declare legislative acts null and void under the Constitution. At first this applied only to acts of Congress. But that would change. (Note that even Hamilton assumed that the Court could never be “equal” to the other two branches, as it is now said to be.)

In modern times, the Court has struck down countless laws, the great majority of them state (and local) laws. Despite what we have all “learned” in school about “checks and balances,” the states can do virtually nothing about this. The reason is obvious, yet it never seems to occur to anyone: A state legislature has no “check” on a federal court. No matter how outrageous the Supreme Court’s decision, the state must swallow it.

And when the Civil War crushed secession, the states lost their ultimate defense against federal tyranny. The federal judiciary soon realized this and has made the most of it ever since. Roe was the eventual result. If only pro-lifers could see this!

Abraham Lincoln might have opposed abortion, and he did warn against judicial usurpation in the Dred Scott case, but he made limitless federal power, including judicial power over the states, inevitable. Whatever flaws were in the Constitution to begin with, they have been enormously compounded.

Tyranny can never be corrected, only temporarily modified, by putting “good” men in office. And the Supreme Court will not be fixed for long by replacing liberals with “good” justices, any more than the Constitution will be repaired by “strict construction” faithful to its “original intent.”

If the Supreme Court is out of control now, that is because there were never adequate controls on it in the first place.


SOBRAN’S explains why the Supreme Court is even worse than you thought. If you have not seen my monthly newsletter yet, give my office a call at 800-513-5053 and request a free sample, or better yet, subscribe for two years for just $85. New subscribers get two gifts with their subscription. More details can be found at the Subscription page of my website.

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Joseph Sobran