Of course the right has always had a problem with the Supreme Court and all those activist judges over all the years, always legislating from the bench, as they say. Congress passes the damned laws, and the president and his administration execute them – that’s why they’re called the executive branch after all. The courts shouldn’t be making laws – that’s not their business. But in that famous Griswold case the Supreme Court said there was some sort of implied right to privacy in the Constitution, and thus, by law, state troopers in Connecticut couldn’t bust into the homes of married couples and arrest them for the possession and possible use of any form of birth control. By law you say? What law? Connecticut had a law they thought was perfectly fine, that had been passed fair and square, as the people wanted – get caught with a condom and you and the wife go off to jail. Now the law of the land was that such things were legal. But no one passed that law. The courts just made up this right to privacy, and without a statute of any kind, said the possession of something or other was legal.
And that led to the Roe decision, based on this new implicit right to privacy, making abortion legal. But no one passed such a law. The courts just declared that abortion was legal. So we’ve had decades of conservative presidents appointing as many conservative judges and justices as they could, so that, if the damned courts are going to legislate, they’d do the right thing – reverse Roe. If you can’t beat ’em, get your guys on the team. Of course the nation already had been torn apart by the Brown decision in 1954 – segregation in schools was illegal – separate but equal was a cruel joke. And there the courts ordered a remedy – court orders to desegregate, with bussing and all that stuff, if it came to that. This was not only making law, this was requiring specific action. But that’s what Congress or state legislatures are supposed to do, or so the arguments went at the time. They’d get around to this matter when they had the time, maybe. Who was the court to tell them what to do, right now? Now we had this you-must-do-this thing coming from the courts, of all places. No fair.
And all along, and now still, you hear the rants and raves that the Supreme Court should just do the right thing, which is always said to be the obvious thing – allow “under God” to remain in the Pledge of Allegiance, allow school prayer, every day, and often – and none of that Mormon stuff or all that Catholic stuff about Mary, not Jesus, and no Unitarian wishy-washy crap. The nation is Christian – don’t pretend otherwise, as that really is obvious. And in fact Newt Gingrich said it again today:
But for me, the real turning point was when the 9th Circuit court decided in 2002 to… that it was unconstitutional to say “one nation under God” as part of the Pledge of Allegiance in a school. And I decided – in some ways it was very parallel to Lincoln responding to the Dred Scott decision about slavery.
I decided that if we now have judges so fundamentally out of touch with America that they have no clue what this country was based on, we need a political change so deep and so profound that nothing we have seen in our lifetime is comparable to the level of depth we have to go to get this country back on the right track again.
The idea here is that some things are so blindingly obvious that only a fool – or an activist judge – some liberal nut – would think there are two sides to a question, and actually consider each side, and sometimes rule for the side that everyone thinks is fine and dandy, and about which laws have been passed about it being just fine and dandy. Why not just rule what’s obvious? And yes, the other side – liberals or progressives or whatever – has its own list of what is stunningly obvious. Corporations really aren’t people. That’s dumb. Science and religion are two different things and should be taught separately. Mixing them just confuses things. And the government should not have the right to kidnap and hold its own citizens without charges, and without any trial or hearing or anything at all, and then torture them, and sometimes kill them doing so. Everyone should get due process – no matter what the crisis of the moment happens to be. There ought to be a law. It’s obvious. But what’s obvious to them isn’t obvious to the other side.
But it’s also obvious that the Supreme Court specializes in what’s not obvious. Cases move up through the lower courts and land on their doorstep because both sides have a good argument – rulings go one way and then the other and finally someone has to make a conclusive decision. But it isn’t easy. Most big decisions are split decisions – a majority opinion and dissents. Few of these things are ever unanimous – although the Brown case desegregating public schools was. And that many decisions that seem right on the money are seldom if ever unanimous does drive both the left and the right crazy, depending on the case. Why were there dissents? Wasn’t this obvious?
People do think that way, and it’s that mode of thinking that does present a problem in more areas than the law. Actually it’s a form of argumentation – the position I espouse is so stunningly obvious that you must be a fool, or a troublemaker, or dishonest, with ulterior motives, or a real twit, to not see that I’m right. This is argument by insult and it’s easy – or lazy. You don’t really have to make your case. Why should you have to make your case? It’s obvious, you twit. And the presentation is a piece of cake. Just look exasperated. That’ll do fine.
And of course this is playing out in all the disagreement about what to do with the current situation in Libya, now moving against what we hoped would happen:
Forces loyal to Col. Muammar el-Qaddafi seemed to be gathering momentum as they renewed their onslaught on both the eastern and western fronts on Tuesday, threatening the western city of Zawiyah and conducting airstrikes here in the east after taunting rebels with flyovers and bombing runs near this coastal city’s oil refinery.
The madman may hang on, and be there another forty years. Now what?
The odd thing is that both John McCain and John Kerry want a no-fly zone established right now – keep that guy’s planes on the ground. And that’s an odd pairing, McCain and Kerry. But they do make their arguments about what’s obvious. McCain offers the usual – we’re big, they’re small, we’re right, they’re wrong, so smash them to bits – people will love us for that. This has the virtue of being simple. Even twits can get it. But Kerry is more nuanced:
For the administration, Mr. Kerry’s view is more troublesome, given that he is a normally a strong ally on foreign policy issues. He was a fierce critic of the war in Iraq, but he sees Libya as a different matter.
He has pushed the White House to do more – including “cratering” Libya’s airfields so the planes cannot take off.
Mr. Kerry, who was openly siding with officials who want the president to take a stronger public stance, said he was pushing the administration to “prepare for all eventualities” and warned that “showing reticence in a huge public way is not the best option.”
“You want to be prepared if he is bombing people, and killing his own people,” he said, referring to Colonel Qaddafi. The Libyan people, he said, would “look defenseless and we would look feckless – you have to be ready.”
He added: “What haunts me is the specter of Iraq 1991,” when former President George Bush “urged the Shia to rise up, and they did rise up, and tanks and planes were coming at them – and we were nowhere to be seen.”
“Tens of thousands were slaughtered,” Mr. Kerry said.
Obviously the keys concepts here are showing reticence and appearing feckless. Perhaps Kerry remembers 2004 – they did say he was French-looking. He may be speaking from bitter experience. But he thinks that what he thinks is obvious.
But Time’s Joe Klein urges caution:
The biggest problem is that we have no idea whether the rebels in Libya are freedom fighters at all. Some are, especially the English-speaking, western-educated young people who are prime targets for visiting journalists. But how relevant are they to the real power struggle? Who are the non-English-speaking tribal elders? Are they democracy loving freedom fighters… or just Qaddafis-in-waiting? It’s a question to be asked not only in Libya, but also in Egypt, Tunisia, Yemen and Bahrain. One hopes for the best–especially in Egypt, where there are signs that the Army is allowing at least a partial transition away from autocracy. But who knows, really? Even Iraq’s democracy is looking shaky these days as Nouri al-Maliki seems intent on consolidating his power.
I do not doubt the sincerity and good intentions of those appalled by Qaddafi’s brutality. Obviously, I share it. But this is where morality must address prudence if we are to make actual, real-life decisions in a fallen world. And if we haven’t learned that these “societies” are beyond our understanding, that military intervention can bring unintended consequences, that democratic revolutions only have a chance if they emerge indigenously… then what have we learned?
And one of his readers corrects him:
When you argue that “democratic revolutions only have a chance if they emerge indigenously,” I can’t help but think that Libya has done so already. We are past its emergence – the question now is, what end result do we want there and how badly do we want it?
And to your point (which seems to be that a new democracy can only be stable and valid if achieved without reliance on outside help), well, look at the American Revolution. France pitched in quite a bit.
In fact, it was the French navy under the Comte de Grasse that cut off any possible sea escape for the 9,000 Brits dug in at Yorktown, who were besieged not only by Washington’s 12,000 Continentals but also by 8,000 French troops under the Comte de Rochambeau. Without France, there wouldn’t have been a Cornwallis surrender in 1781, and therefore no Treaty of Paris in 1783, and therefore no victorious United States without a lot more suffering and expense (if at all).
Now, does this mean we need to establish a no-fly zone over Libya? Of course not – France jumped into our revolution because France wanted to hurt Britain, and there is no motive so clear-cut for us to jump into Libya. But let’s not reject involvement based on an incomplete read of history, either.
Yes, foreign powers have sometimes intervened in civil wars or uprisings in other countries to advance their own interests. The first question is whether military intervention, with unforeseen consequences, in a third Muslim country advances US interests or not. Maybe tipping the air-war in the rebellion’s favor could help stop the massacres. Maybe it would have a trivial effect, given the capacity of Qaddafi to move his paramilitary and mercenaries around on the ground. If it fails, we endure another chorus of criticism from those in the Muslim world who despise us. If it succeeds, the US all but “owns” whatever comes after Qaddafi.
There is that, but there’s something more:
Can we morally stand by and watch so many innocents killed? We did so, on a far larger scale, in Iraq even as we were responsible for Iraq’s internal security. If we can stand by and observe the murder of tens of thousands under US occupation, by what argument do people argue that the US has an obligation to jump back in and protect those hunted down by Qaddafi’s thugs?
Two wrongs don’t make a right? Sure. But what we learned from Iraq is that once you take the leap into intervention, no one can know what follows. Ten years after 9/11 we are enduring more casualties in Afghanistan than at any point in the last decade, while also killing nine boys by mistake. Imagine a story about Qaddafi hunting down children by helicopter gunship. We are also still in Iraq with numbers of troops no pro-war advocate anticipated in 2003. And yet the very same people who backed the Iraq war are now backing intervention in Libya, including, I might add, Senator John Kerry.
This is becoming like most Supreme Court decisions. There are good arguments on both sides, and there are lots of people in the bleachers screaming about what’s obvious.
And sometimes you overlook the obvious, as Roger Cohen points out here:
There are many reasons I oppose a Western military intervention in Libya: the bitter experience of Iraq; the importance of these Arab liberation movements being homegrown; the ease of going in and difficulty of getting out; the accusations of Western pursuit of oil that will poison the terrain; the fact that two Western wars in Muslim countries are enough.
But the deepest reason is the moral bankruptcy of the West with respect to the Arab world. Arabs have no need of U.S. or European soldiers as they seek the freedom that America and the European Union were content to deny them.
It’s the history of things:
There’s a video of Dr. Alia Brahimi of the London School of Economics greeting Col. Muammar el-Qaddafi as “Brother Leader” at the school three months ago, and presenting him with an LSE cap – a tradition, she says, that started when the cap was handed to Nelson Mandela.
It may be possible to sink to greater depths but right now I can’t think how.
The West has long known what the likes of Qaddafi and Egypt’s Hosni Mubarak did. Hisham Matar, the acclaimed Libyan novelist, has a new novel out called “Anatomy of a Disappearance.” His father, Jaballa, disappeared in 1990, abducted from his Cairo apartment by Egyptian security agents who handed him over to Libya.
For more than a decade there has been no trace of this cultured man, a former diplomat last seen in Tripoli’s notorious Abu Salim prison. His crime was belief in democracy and freedom. He has vanished leaving a fine novelist aching for closure, demanding – if his father is dead – “to know how, where and when it happened.”
There you have the Cairo-Tripoli axis. They were useful, Mubarak and Qaddafi, for intelligence and renditions and a cold Israeli peace in the case of the Egyptian; for oil and gas in the case of the Libyan. They were also killers.
Disappear is a transitive verb for dictators. That’s what they do to foes, disappear them in the night for questioning that becomes a nameless forever.
No law governs these captives’ fate. They vanish – and then they are tossed into mass graves. Qaddafi massacred over 1,000 political prisoners at Abu Salim in June 1996. Was Jaballa Matar among them?
It’s important to have names. The skulls in the sand were once sentient beings who screamed for justice.
And we blithely abandoned them all.
Of course there is that publisher who is no longer in jail, Conrad Black – “If NATO (the U.S. Sixth Fleet in practice) can’t take out Libyan air defenses at no or minimal cost, we should all start studying Arabic and spending an hour a day with our foreheads pressed to the floor.”
That’s playing the obvious-card big time – and of course it’s utter bullshit. But that is how you play that card.
Greg Scoblete in this item points out that none of the calls for intervention in Libya hinge on America’s national security interests, or even mentions it:
Notice that Senator Kerry’s case hinges exclusively on how the U.S. looks or is perceived. He’s even scornful of public “reticence” – as if it were a bad thing! There is no indication, or argument, that the lives of Americans or core interests are in danger.
And Marc Lynch’s argues the other way:
The bloody stalemate in Libya has drained away the carnival atmosphere from the Arab upheavals – something which may not be displeasing to many of the other Arab leaders, despite their distaste for Qaddafi. Arabs who yearn to be part of the Tahrir Square celebrations may be less excited to be part of a brutal, grinding struggle against entrenched security forces – a lesson which I suspect that Arab leaders are quietly encouraging. But they may have miscalculated. If force fails here, it may be seen to fail everywhere … which is one more reason to make sure that it does in fact fail.
But he’s still wary of the no-fly-zone arguments. There’s no good answer, or at least no obvious answer. There will be no unanimity. There will be dissents.
And at Slate, Anne Applebaum offers this:
It’s nice to be on the right side of history, and I’m not surprised that George W. Bush’s remaining supporters now feel good about the “freedom agenda” that he sometimes advocated and sometimes forgot while in office. But being right, even morally right, isn’t everything. It is also important to be competent, to be consistent, and to be knowledgeable. It’s important for your soldiers and diplomats to speak the language of the people you want to influence. It’s important to understand the ethnic and tribal divisions of the place you hope to assist.
Let’s not repeat past mistakes: Before sending in the 101st Airborne, we should find out what people on the ground want and need. Because right now, I don’t hear them clamoring for us to come. They are afraid of what American “assistance” might do to their country.
And Matthew Yglesias thinks this makes sense:
This is the “ethic of responsibility” approach. What’s wanted on Libya aren’t bold ideas to fix things that are as likely as not to end up creating some new horrible problems, it’s modest ideas that we can be reasonably certain will actually help. Of course it sounds good to write articles decrying someone else’s fecklessness, but we should be very reluctant to initiate military actions just because nobody can think up a better lead for a column.
And of course now Newt Gingrich wants a war with Libya immediately (he says tonight will do) – but he’s running for president again. He needs to appeal to the base – the people who know what’s obvious and like someone to tell them that they’re right – whatever it is it is really, really obvious.
But it’s hardly ever obvious. We wouldn’t need a Supreme Court if everything were obvious. They’d be like the guys at the DMV – fill out the form, pay the fee, get your new license plate tags. People just say things are obvious – because they’re either fools, or a troublemakers, or dishonest, with ulterior motives, or real twits – or they’re just lazy. Sometimes there are no good answers, and doing the first thing that comes to mind is disastrous. We just don’t like to admit that.