Injudicious Activism

“‘Judicial activism’ in defence of liberty is no vice,” wrote political columnist David Harsanyi last February on the Web pages of the libertarian magazine Reason. In this, he is joined by legions of his sympathizers, who maintain that the judiciary should take the lead in downsizing the post-New Deal regulatory state and curtailing its purported violations of individual freedom. This libertarian case for judicial activism has been iterated with increasing frequency since the recent invalidation of the Patient Protection and Affordable Care Act on constitutional grounds this year, first by two federal district judges and most recently by the US Court of Appeals for the 11^th Circuit. As the argument has it, the judges who ruled “Obamacare” unconstitutional either in whole or in part did not violate Americans’ democratic will as expressed by their elected representatives. Rather, they appropriately exercised judicial review to check an out-of-control government that had violated one constitutional right too many.

As a libertarian who would like to minimize government intrusion, coercion and confiscation as much as any other, I beg to differ.

For as long as I have known what the term means, I have deplored judicial activism in all its ideological stripes. I first became familiar with the term when I took a course in Constitutional Interpretation in college. I soon learned that no single political camp has monopolized the practice of fighting its battles, and imposing its agenda on the country, via the unelected branch of government. The Supreme Court of a century ago spent a generation obstructing the establishment of the welfare state, based on a “liberty of contract” that is nowhere to be found in the Constitution. The liberal mid-twentieth-century Court brought us other unenumerated rights like privacy in general and abortion in particular while temporarily striking down the death penalty. Through it all, each of the major political factions predictably cheered when its weltanschauung was gratified and bleated in protest when it was thwarted. I have always looked with disgust at this most salient of hypocrisies in American politics. Everyone is a judicial activist—when it suits him.

So I read my fellow libertarians’ defenses of this abuse of judicial review with great dismay, for several reasons. The first is the aforementioned disingenuousness. For instance, it seems to have become an article of faith among my co-ideologues that the Constitution protects the “liberty of contract” recognized by the Supreme Court in Lochner v. New York in 1905. This liberty, of course, is conspicuous by its absence from the text of the supreme law of the land; but no matter. According to the Ninth Amendment, “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Liberty of contract is one of those other rights “retained by the people,” so the Constitution protects it as well, even without mentioning it.

Were I still the confirmed leftist I was in my adolescence, I would look aghast at the havoc this would wreak on minimum-wage laws and sundry other regulations deemed necessary for society’s general welfare. My retort would not be long in coming. I would see the libertarians’ constitutional right to liberty of contract and raise them a constitutional entitlement to universal health care.” Neither of these “privileges or immunities” is explicitly mentioned in the Constitution; why read one into this venerable eighteenth-century parchment and not the other? Indeed, some liberal legal scholars have already advocated judicial recognition of such “constitutional welfare rights”—particularly Berkeley Law School professor Goodwin Liu.[1] Would libertarian boosters of judicial activism graciously acquiesce if the courts were to read such a government-expanding right into the Constitution? Quaestio respondet sibi.

At any rate, I have yet to make my peace with the idea of unenumerated constitutional rights. If rights left unmentioned by the document are as valid and enforceable as their textually entrenched cousins, why enumerate any of them at all? What is the larger purpose of putting those freedoms in writing in the first place? In my view, the point of doing so is to create an empirically verifiable, objective record of which rights are in fact protected by the Constitution—and which ones are not. Pace the Ninth Amendment, conjuring up brand-new rights and privileges and inserting them into an unamended text vitiates that purpose. For one thing, it is a veritable recipe for judicial overreach, since the courts have the last word on constitutional interpretation. It leaves judges free to run off half-cocked, reading into the Constitution whatever provisions they deem necessary. Why should any American politicos—liberals, conservatives, moderates or libertarians—trust unelected jurists to do the right thing at all times, when the latter need not fear being turfed out of office if they overstep?

For another thing, leaving the process of constitutional interpretation completely unmoored from the text would shield a literally infinite list of privileges against democratic majorities’ ability to abridge them. Those who believe that public policy should be broadly guided by the will of the people should think twice before endorsing this methodology. Is there no form of proactive governance that Americans should be free to implement? Are we to believe that most forms of government intervention are so odious that the Constitution should forbid them—no matter how much the American people might desire them? Yes, it is crucial that a democratic constitution protect certain rights and freedoms from the “tyranny of the majority” of which Tocqueville warned. It is equally crucial, however, that those fundamental freedoms be finite, lest the will of the people be not merely circumscribed, but completely emasculated.

This brings me to perhaps the most fundamental reason why libertarian judicial activism rubs me the wrong way. First of all, it insinuates that the Constitution is basically a libertarian document, just as liberal judicial activism treats the Constitution as though it were intrinsically liberal, and conservative judicial activism similarly mangles the document from the Right. These philosophical conceits offend the democratic spirit. For any constitution to play ideological favorites, tilting the public policy playing field in favor of one political camp at the others’ expense, would be almost self-evidently unjust. In a true democracy, opposing political visions ought to compete—vociferously, to be sure, but peacefully and equitably nonetheless—for the hearts and minds of the people. In this never-ending struggle, an authentically democratic constitution and the judges who interpret and enforce it are supposed to remain as neutral as possible, not take sides.

At any rate, I think it self-denigrating to suggest that our libertarian philosophy needs such constitutional coddling. Are our powers of persuasion really so feeble that we cannot win our countrymen over to our side? Many argue that “the people” are too easily misled and deceived to see the libertarian light, or perhaps simply too apathetic to follow it. This strikes me as a lame excuse for us to fold our kiosk in the marketplace of ideas. Moreover, it is disingenuous in the extreme for us to look with such contempt on the very people whom we mean to liberate.

I am a libertarian. I, too, wish to keep the government out of the people’s faces to the greatest extent possible—in all areas of human endeavor. Nonetheless, such matters are not, and should not be, the province of the Constitution or of the courts; that job should be left to the people’s elected representatives. I recognize that not everyone shares my convictions, and that other worldviews deserve to go a few rounds in the ring with mine. Rather than run after unelected judges’ apron-strings, I prefer to tackle my ideological opponents head-on and beat them fair and square. When government violates a right that the Constitution does explicitly protect, that is the time to take our fight to the courts. When the Constitution is silent about the freedoms we defend, our battle belongs in the court of public opinion. I believe in libertarianism—but I believe in democracy more.

[1] Goodwin Liu, “Rethinking Constitutional Welfare Rights,” 61 Stan. L. Rev. 203 (2008).

Citizen Chen

I have always believed that the citizens of a free society should not be punished for acting, within reasonable bounds, to protect themselves or their property from criminals. When the police are able to deal with the robber or attacker in a timely and effective fashion, the job should indeed be left to them. When this is not the case, individuals who are able to bring the perpetrators to heel in a responsible manner should not flinch from doing so. Nor should the state penalize them for doing what needs to be done, which officers of the peace may be unable—or unwilling—to do.

As an ongoing travesty of justice in Toronto in shows, Canada’s criminal justice system would beg to differ.

It was last May that surveillance cameras at the Lucky Moose market in Toronto’s Chinatown captured a man stealing $60 worth of plants riding away with them on a bicycle. 51-year-old Anthony Bennett, a man with a petty crime rap sheet 33 years long, returned to the same store an hour later, presumably to help himself to some more merchandise. This time, however, he was confronted by the store’s owner, David Chen, and fled on foot. Mr. Chen and several store employees gave chase and caught Bennett, reportedly hog-tying him with twine and trapping him in a delivery truck until police arrived several minutes later.

What happened next boggles the mind and makes a mockery of the very concept of justice. For apprehending the thief and restraining him until the authorities showed up, Mr. Chen was charged by police with unlawful confinement, assault, concealing a weapon (he happened to be carrying a box-cutter at the time), and kidnapping. Worse still, the perpetrator, who was originally supposed to serve a 90-day jail sentence at the prosecution’s request, was able to finagle a mere 30-day bid out of negotiations with the court—in exchange for testifying against Mr. Chen.

I would love to be able to say that the Crown did the “decent” thing by dropping the kidnapping and concealed weapon charges several months later. Unfortunately, decency had little to do with it. For the most serious charge, that of kidnapping, Mr. Chen would have had to be tried before a jury, where he almost certainly would have been acquitted. At any rate, the Crown initially offered to drop the more severe charges if Mr. Chen would plead guilty to assault and unlawful confinement—an offer he promptly refused. This plea bargain suggests that Crown prosecutor Colleen Hepburn’s eventual decision to drop the aforementioned charges anyway was not made as a matter of conscience.

The legal case against Mr. Chen is that in Canada, such “citizen arrests” are lawful only when the perpetrator is in caught in the act of breaking the law. Since Chen ran Bennett down before the latter was able to filch any more goods upon his return to the market, the argument goes, what he did was illegal. Yet it appears that this is less clear than the Crown and its sympathizers would have it. According to University of Alberta criminal-law professor Sanjeev Anand, Canadian legal precedent permits such citizen arrests if there is reason to believe that the perpetrator has committed an indictable offence. The surveillance camera footage of Bennett’s initial theft gave Chen that reason.

Yet even if the Crown is right, Chen’s case raises an important normative question. Should Canada’s laws be amended, as Immigration Minister Jason Kenney recently mused, to protect this sort of citizen’s arrest from prosecution? I, for one, believe so, for I see nothing in Chen’s action that should be considered worthy of punishment under the law.

Did Chen and his employees truly “assault” Mr. Bennett in any meaningful sense of the word? I think not. They applied perfectly reasonable force in stopping him; they did not beat the stuffing out of him, as others would have done. Did they “take the law into their own hands”, as some have alleged? Hardly. They did not try to punish Bennett themselves, as real vigilantes do. They trussed him up—strictly to stop him from escaping—and turned him over to Toronto’s Finest at the first opportunity.

Some argue, as the Globe and Mail columnist Marcus Gee did last month, that Mr. Chen endangered himself in pursuing the larcenous Mr. Bennett. What if the perp had pulled a knife or a gun on him? This flimsy argument, however, is annoyingly paternalistic in its implications. If an individual is willing to risk life and limb to catch a fleeing thief, that is his business. The government should not punish him for doing so in order to shield him from the potential consequences of his own actions. Eyewitnesses who report violent crimes or rescue their victims, or who testify against criminals in court, potentially make themselves targets for the perpetrators’ reprisal as well. Are they to be prosecuted for that?

“In such an encounter, anything can happen,” wrote Mr. Gee. “That’s why we reserve the right of arrest mainly to police…Passions run high when people think they have right on their side, and things can easily get out of hand.” This, of course, overlooks the countless incidents in which things have spun far further out of control than they did in David Chen’s case, despite—and sometimes because of—police involvement. It also ignores the judiciousness Chen exercised by merely restraining Bennett until the police’s arrival. What’s more, since Bennett might have escaped had he not been caught, Mr. Chen, if anything, did the police a favor. Had he handled this situation by the book, calling 911 when he caught the thief without giving chase, Bennett could have made a clean getaway before the police arrived.

Can law-abiding citizens afford to depend so heavily on law enforcement for their safety? In a perfect world, in which cops are irreproachable angels who always arrive in time to collar the crooks, this would be the perfect approach. In the world we actually inhabit, however, that is too often not the case. To require citizens to wait for police to rescue them, even when the latter are unable to do so until it is too late, is nothing short of unjust. In some situations, that could cost a victim his or her life. This is one major reason why the law permits, for example, the use of violence in self-defense: because police are not always well positioned to take care of business. Case in point: as Chen and countless fellow shopkeepers—who have rallied to his defence—have pointed out, Toronto police generally give shoplifting cases short shrift. Store owners’ tax dollars, it would seem, are not so hard at work.

This case relates to the larger issue of whether restricting individuals’ ability to help stop crime discourages them from acting in cases where such courageous intervention could save lives. In the 1989 École Polytechnique massacre in Montreal, the men in a room commandeered by gunman Marc Lépine meekly obeyed his order to leave, allowing him to slaughter fourteen women left behind. Two summers ago, travelers in Western Canada fled a bus after one psychotic passenger savagely butchered another. (The RCMP, for their part, left the murderer alone on the bus for hours before boarding and arresting him, allowing him to decapitate and cannibalize his victim’s body.)

A little retaliation on bystanders’ part might have at least mitigated these tragedies. Consider, for instance, the shooting at Virginia’s Appalachian School of Law in 2002, when a disgruntled student shot six people, killing three, including a school dean. Two other students ran to their cars to retrieve handguns from their glove compartments and confronted and disarmed the shooter. Such bravery need not be expected of all citizens—most of us are not cut out for such impromptu combat—but it is not to be punished either. It is easy to imagine how laws that discourage that kind of intervention could infantilize and enfeeble the citizenry, enabling or exacerbating such crimes in the future.

The case of David Chen revives the age-old question of the proper relationship between the citizen and the state. Free men and women should not have to entrust any aspect of their destinies—their health, safety, prosperity etc.—to the agents of government so slavishly. In most cases, yes, the boys (and girls) in blue should be the ones to bring the bad guys to justice. Yet there are times when John Q. Citizen must do his part—beyond cooperating with investigations, serving on juries or testifying in court—to take a bite out of crime. This includes cases in which John Q.’s livelihood is violated by someone whom he can apprehend with minimal violence and without usurping the legitimate role of the police. Citizen Chen does not deserve to be put on trial. If anything, the rest of us should consider taking a page from his book.

To War or Not to War

In early September, conservative pundit George Will declared in the pages of the Washington Post that Afghanistan’s persistent downward spiral is America’s cue to exit. There soon ensued another Will column urging that US troops be withdrawn from Iraq within the next year. Bucking the trend on the Right, the National Review’s Peter Hesgeth argued that the US cannot remain locked into such nation-building endeavors forever. The conservative wall of silence, if you will, is beginning to show cracks over these latest overseas projections of American power.

The fundamental lesson to be learned from the tortured US missions in Iraq and Afghanistan is the importance of picking one’s fights wisely. There are two main criteria on which the decision to go to war should be based. First of all, is the war necessary? Second of all, is it winnable? In answering these questions, it is instructive to examine how the last counterinsurgent quagmire the US faced, the Vietnam War, became such a drawn-out and futile bloodletting. Notwithstanding the hackneyed use of that war to caution against every new American military adventure, rarely have the correct conclusions been drawn from it.

In the Korean War of the early 1950s, the coalition fighting to reverse communist North Korea’s invasion of the South was ultimately shoved back by a massive Chinese counterattack. This taught US policymakers that China was loath to tolerate any anti-Communist beachheads on its border. A decade later, North Vietnam’s location next door to China enabled Moscow and Beijing to supply the Vietnamese communists with relative impunity. Presidents Lyndon Johnson and Richard Nixon could not sever the enemy’s supply lines without risking another direct—and possibly nuclear—confrontation with China. Hence they settled for carpet-bombing North Vietnam and slaying as many Viet Cong guerrillas as they could until the South Vietnamese army could defend the country independently. Unfortunately, the South Vietnamese army proved incompetent and cowardly, and the regime for which it fought grew autocratic and corrupt. This, and the military havoc wreaked on the country, alienated South Vietnamese civilians in droves, pushing many into the arms of the Viet Cong. Moreover, the North Vietnamese possessed greater patience—and a far higher tolerance for bloodshed—than the American people had. Conclusion: the Vietnam War was unwinnable.

Furthermore, in training its sights on Southeast Asia, the United States had picked a fight with the wrong commies. North Vietnam never served as a bastion of Soviet-sponsored subversion. Like Marshal Tito’s Yugoslavia, Ho Chi Minh’s Vietnam was Marxist, but neutral between the dueling superpowers, fearing Russian and Chinese as well as American domination. In fact, after Hanoi emerged victorious in 1975, Vietnam was at war with its Communist neighbors in Cambodia and China before decade’s end. Conclusion: the Vietnam War was unnecessary.

I see the true lessons of Vietnam as follows. First, do not target enemies that pose no threat, for that leads to unnecessary war. Second, avoid fighting counterinsurgencies in locations where the military cannot choke off the rebels’ supplies at the source, for that leads to unwinnable war. The Bush Administration, in its hegemonic hubris and profound historical ignorance, learned not one of these lessons. The guerilla warfare that followed the toppling of the Taliban and Ba’athist regimes caught Uncle Sam with his striped pants down. Having never seen these insurgencies coming, the Pentagon put too few boots on the ground to grapple effectively with the rebels in either country. Hence the belated troop “surge” implemented by President Bush in Iraq in 2007, and the current surge President Obama has ordered in Afghanistan. These have to be two of the deadliest games of catch-up ever played.

Meanwhile, the Taliban have found supplies and shelter in neighboring Pakistan, while Iraq’s Shi’ite militias benefit from aid from their coreligionists in adjacent Iran. The US military cannot tackle Iran directly, and the Pakistani government has so far proven unable to suppress the Taliban sympathizers within its own borders. Once again, the US has gotten itself—and its NATO allies—into a scrap with guerrillas whose sources of supply are all but untouchable. That US forces have yet to win the hearts and minds of Afghan and Iraqi civilians only compounds these colossal blunders.

Conclusion: the wars in Afghanistan and Iraq may well prove to be unwinnable.

The news that Saddam had no weapons of mass destruction and posed no threat to anyone besides his own people grew stale years ago. At this point, it almost goes without saying that the Iraq War was unnecessary. The casus belli in Afghanistan, however, was virtually unassailable, complicating the question of that war’s necessity. Al-Qaeda had planned the greatest civilian mass slaughter in American history from its caves in Afghanistan; their ruling Taliban allies refused to turn the perpetrators over to the US to be brought to justice; therefore Al-Qaeda, Taliban and all had to go.

Yet the Taliban regime was toppled, and the country cleansed of Al-Qaeda bases, almost eight years ago. The counterinsurgency that ensued has aimed to enable the Afghan government to prevent the Taliban’s return to power on its own. It has also struggled to bequeath to Afghanistan at least the basic framework of a stable, durable democracy. On both counts, the war has thus far gone atrociously. On at least the latter of those two counts, the same can be said for Iraq. Both countries’ new constitutions establish Islam as the state religion and enshrine Islamic sharia in the laws of the land. Have we forgotten the Afghan who was prosecuted for the crime of converting from Islam to Christianity some years ago, and had to leave the country? Has the law recently passed by the government in Kabul making it legal for husbands to rape their wives already slipped our minds? Whatever these laws are, they are not democratic. Clearly, the backward cultures that make such injustices possible are inhospitable to democracy.

Conclusion: the initial military campaign in Afghanistan was necessary; the sanguinary nation-building, democratizing effort that followed it may not be.

So why the reluctance to “bug out” of both conflicts? Once again, a comparison with the ignominious US retreat from Vietnam in 1975 comes in handy. The US withdrawal was indeed followed by a bloodbath; thousands of Vietnamese refugees fled the country’s Communist crackdown in the late 1970s. The disco era also saw Marxist forces gain strength throughout what was then still known as the “Third World”. From Nicaragua to Grenada to Angola to Afghanistan itself, it seemed that America’s defeat in Vietnam had emboldened its enemies to seek ever greater advantage. Nor was it only the Soviets and their clients who concluded that the US was in fact a “paper tiger”. Iran went Islamist in 1979, and has been a persistent thorn in America’s Middle Eastern flank ever since. Shortly before Syria invaded Lebanon in 1976, President Hafez Al-Assad is said to have sneered to Henry Kissinger: “You’ve betrayed Vietnam. Someday you’re going to sell out Taiwan. And we’re going to be around when you get tired of Israel.”

When the US beats a hasty retreat from a conflict to which it has committed immense amounts of blood and treasure, anti-American forces worldwide take note—and take advantage. Osama bin Laden took inspiration from the US pullout from Somalia in 1993, concluding that the Great Satan lacked the belly to quell a protracted insurrection. Thus American war hawks’ insistence on “staying the course” should not be dismissed out of hand. Islamist forces, whether Sunnis sympathetic to al-Qaeda or Shiites allied with Iran, will not be kind to any country the US leaves in the lurch.

President Bush, then, painted the US into a corner by invading Iraq unnecessarily and arguably overstaying America’s welcome in Afghanistan. In so doing, he has left his successor quite the dilemma. President Obama can either soldier on and risk wasting more American lives and dollars to no avail, or begin pulling the troops out and risk allowing both war-torn countries to collapse into even greater mayhem—and strengthening America’s mortal enemies into the bargain. Either outcome would cost the United States, and those who depend on it for their survival, dearly. If the US is to continue to lead the free world, its leaders must learn to avoid plunging into these dead-end conflicts in the first place. Being—and remaining—the world’s greatest power means knowing when to stay off the warpath. An ounce of prevention is worth a pound of cure.

Barack and the Straw Man

In the winter of 2008, knowing that the next president of the United States would be a Democrat, I decided that President Barack Obama, whatever his faults, would be preferable to President Hillary Clinton. This had nothing to do with their policy differences—which were scant—and everything to do with many Americans’ deep personal dislike of Hillary Clinton. The country had just endured eight years of monomaniacal Clinton-bashing from the Right, followed by another eight years of equally unhinged Bush-bashing from the Left. Could America not use a leader whose detractors could oppose his policy agenda without hating his guts?

Silly, silly me. At the time, I failed to anticipate that left-leaning elites in the US media, intelligentsia and commentariat would leap to blame any and all opposition to Obama’s politics on racism. For shame! I might have known that one fault line in American politics would promptly be replaced by another. The partisan vitriol would rage on unabated, thanks to the profound revulsion felt by conservatives and even many independent voters toward the aforementioned insinuation. What else could result from so many liberals’ readiness to paint Obama’s critics with the brush of bigotry?

New York Times columnist Maureen Dowd fairly somersaulted onto that facile bandwagon on September 12, writing, “Some people just can’t believe a black man is president and will never accept it.” This, strictly speaking, was true: some of President Obama’s opponents are doubtless racially motivated. Dowd was reacting to South Carolina Congressman Joe Wilson’s disgraceful exclamation at the President during the latter’s recent address to Congress. Wilson may indeed be guilty as charged. His membership in an organization called Sons of Confederate Veterans, and his leadership of a 2000 campaign to keep the Stars and Bars flying over the South Carolina state capitol, are legitimate cause for suspicion. Yet Ms. Dowd and company are not content to denounce Joe Wilson alone; most or all Obama opponents have to roast with him.

Hence Dowd implied, for instance, that South Carolina governor Mark Sanford refused to accept stimulus funds from Washington because the President is Black. Appraising the raucous opposition to Obama-style healthcare reform at town hall meetings nationwide last August, Princeton professor Paul Krugman wrote that “the driving force…is probably the same cultural and racial anxiety that’s behind the ‘birther’ movement, which denies Mr. Obama’s citizenship.” James Ridgeway of Mother Jones magazine declared that the “election of Barack Obama adds even more fuel to nativist rage.” The Washington Post’s resident hand-wringer E.J. Dionne likened the town hall confrontations to the lynching and disenfranchisement of Blacks in the Jim Crow South. Most recently, former President Jimmy Carter told NBC News, “I think an overwhelming portion of the intensely demonstrated animosity toward President Barack Obama is based on the fact that he’s a Black man, that he’s African-American. […] That racism inclination still exists, and I think it’s bubbled up to the surface because of [the] belief among many white people…that African-Americans are not qualified to lead this great country.” Interminable is the list of leftists who have refused, as Reason magazine’s Matt Welch put it, “to begin considering that limited government sentiment is not automatically a form of sublimated racism.”

These allegations would be more convincing if there were some indication that a white Democratic president, one as liberal as Barack Obama, would have received gentler treatment from the Republican opposition. I think this question answers itself. It is difficult to imagine Caucasian Hillary Clinton arousing much less ire from conservatives, were she in the Oval Office today. Her equally Caucasian husband was hardly pampered by Republicans during his turn in the White House. So what basis is there for blaming Obama’s opposition on racism?

Last spring, for example, actress Janeane Garofalo insisted that the anti-government activists at one “Tea Party” demonstration must be motivated by racism rather than by conservatism, because they had never protested George W. Bush’s asinine fiscal policies. Of the protestors’ hypocrisy on that score, there can be little doubt. Yet hypocrisy and racism are two different things; to attribute the former to the latter automatically is simplistic in the extreme. Far more likely is that these Tea Partygoers are Republican loyalists, and were reluctant to criticize their party’s leader for any reason. This irrational bias is partisan in nature—not racial.

Lest I overstate my case, let me acknowledge that some of these demonstrators have indeed shown signs of racial bias. Most disturbing to me was a photo of one Tea Party marcher holding a sign reading “Stand idly by while some Kenyan tries to destroy America? HOMEY DON’T PLAY DAT!!!” This, of course, was only one example among many. Yet the photos and footage I’ve seen of Tea Parties and town hall protests suggested that such displays were in the minority. This is corroborated by the testimony of other direct observers of these events (besides Janeane Garofalo, and far less partial). Smearing all the participants as racist is no fairer than characterizing all the anti-globalization protestors of yesteryear as violent anarchists. Would it kill President Obama’s backers to restrict their complaints to the truly bad apples in the barrel?

The principal case against “ObamaCare” has nothing to do with race, one way or the other. There are quite legitimate arguments to be made that the President’s reform plan would exacerbate the federal budget deficit, gradually crowd out private health insurers by luring more and more Americans onto the public option and undercutting private insurance premiums, eventually lead to government rationing of healthcare and the around-the-block waiting lines that come with it, stifle innovation in medical technology, and so on. This case is driven by a philosophical leeriness of activist government. There are fair grounds for rebuttal of all of these arguments. The claim that they are racist is not one of them.

This left-liberal race-baiting is most damnable not in its unfairness to its targets, but in its intellectual laziness, cowardice and perhaps even desperation. Whenever its proponents tire of making the substantive case for Obama-style healthcare reform, they resort to playing the racism card. To fall back on accusations of racial prejudice in this context is to attack a straw man, like Don Quixote tilting at windmills. Employers of this tactic do their own cause few favors, for they are unwittingly responding to only a minority of their political adversaries. These kneejerk allegations do nothing to discredit most of President Obama’s critics, who would hardly be cheering on his big-government policies if he were white.

Liberals forget that two can—and do—play at that game. Does no one remember the political climate in 2002 and 2003, when right-wingers merrily impugned the patriotism of those who opposed the invasion of Iraq? They, too, were attacking a straw man. Most of the war’s skeptics (within the US, at any rate) were anything but un-American. In any case, the point was moot, for even genuinely unpatriotic antiwar sentiment would not have made the war itself turn out any less disastrously. Likewise, even if ObamaCare opponents were racist, that in itself would not make the President’s plan any better an idea.

Can Americans really look forward to another 3 ½ to 7 ½ years in which the President’s defenders see bigoted bogeymen behind all resistance to his policies? If so, we can probably expect the unnecessarily bitter partisan strife of the past sixteen years to worsen. The sentiments underlying Bush-hatred and Clinton-hatred can only be exacerbated by adding race into that already toxic mix. Can liberals imagine no legitimate, non-racist conservative (or libertarian) rebuttal to the change President Obama has in store for America? If not, then the President will have a hard time achieving his aim of bringing Americans back together. Roughly half the country will not take kindly to being portrayed as crazy or evil—or both.

One last issue bears mentioning. African-Americans, in my view, should be leerier of glibly playing the racism card than anyone. First of all, perhaps no other community can less afford to risk undermining its own credibility by repeatedly crying wolf. Secondly, America’s long-awaited “conversation on race” can only be poisoned by this thinly veiled indictment of so many of its intended participants. Moreover, unsubstantiated presumptions of bigotry arguably demean President Obama himself. Surely truly xenophobic opinions have no legitimate place in public discourse. If almost every iota of opposition to the President is held to be the product of white racism, then what are we to conclude? That his complexion should exempt him from virtually all criticism?

I doubt President Obama himself feels the need for such coddling—certainly not on account of his race. Nor, for that matter, does any African descendant. We are a people who suffered more than four centuries of enslavement, subjugation and persecution—and yet still produced innovators, entrepreneurs, financiers, physicians, scientists and, now, a leader of the free world. What we are not is a race of tenderfeet.

Of Persians and People Power

In politics as in so much else, talk is cheap; it is deeds that have coinage. This has been one of my key criticisms of US President Barack Obama since the spring of 2008, when the luster of his political ascendancy began to fade in my eyes as his gaseous campaign rhetoric burrowed deeper and deeper under my skin. I looked askance as his handlers and speechwriters set him up in one vainglorious set-piece after another—promising to “heal the planet” and “slow the rise of the oceans” after the last Democratic primary, speaking in front of a row of ridiculous Roman columns at the Democratic National Convention, and so on. Windy rhetoric in politics has never sat well with me, no matter how young, intelligent or charismatic the politician.

Even less am I impressed by the idea that oratory alone can move mountains; hence the skepticism with which I greeted Obama’s “race speech” in Philadelphia last year and his speech at Cairo University earlier this month. America’s perpetual “conversation on race” has not made any readily obvious progress since March 2008; and as for the claim that Obama’s address to the Muslim world has won over many hearts and minds throughout the umma, well, seeing is believing.

On the whole, eloquent oratory that is untethered to any concrete, effective action is worse than useless in my book. Highfalutin words are best backed up with meaningful deeds; when nothing meaningful can be done, silence—or careful circumspection, at any rate—is golden.

This is why I look with contempt at the flak President Obama is now taking from the Right over his refusal to openly support the Iranian opposition in its current confrontation with the mullahs in Tehran.

Iran’s clownish and hateful President, Mahmoud Ahmadinejad, was credited with victory in the theocracy’s recent elections by an absurd margin. (According to www.someecards.com: “The unrest in Iran makes me proud to live in a country where corrupt politicians are smart enough to keep rigged elections close.”) Ahmadinejad’s chief rival, Mir-Hossein Mousavi, promptly demanded a revote while his supporters took to the streets of Tehran in multitudes, objecting to this naked affront to the will of the Iranian people. The country has been roiled with protest ever since, prompting widespread speculation about the potential consequences for the regime’s longevity—not to mention the more, shall we say, controversial elements of Iran’s foreign policy, namely its nascent nuclear program and its support for terrorist groups like Hamas and Hezbollah.

President Obama has so far taken the wisest of all available tacks with regard to Iran. He has expressed his skepticism about the election results and his disapproval of the Iranian regime’s thuggish crackdown on dissidents. Yet he has been careful not to go too far in denouncing the regime or in endorsing Mousavi or his supporters—a smart strategy on both counts. The mullahs and their flunkies, after all, are still armed to the teeth, and can brutally crush this largely unarmed uprising at any time, Tiananmen-style. Mousavi, for his part, has not called for an end to the regime’s nuclear ambitions, to its sponsorship of Hamas and Hezbollah or to its enmity with Israel. It remains unclear whether his supporters seek to overthrow the Shi’ite theocracy altogether or merely to replace one mullah-approved marionette with another. This is not the kind of horse on which Obama would be wise to bet.

The last negotiating partner the US needs is an Iranian regime flush from the victory of flattening an internal insurrection—and incensed at the President’s endorsement of that revolt to boot. In such a scenario, Obama could no longer expect to get the mullahs to beat their uranium centrifuges into ploughshares—and forget about convincing them to rein in Israel’s terrorist tormentors. With the odds already stacked against that success even in the absence of the current strife, President Obama is in no mood for his plans to be disrupted by the events in Tehran.

Nonetheless, a growing chorus of mostly conservative critics has been braying for President Obama to bless the Iranian protestors with just a touch of his oratorical magic, in the name of democracy. It would be foolhardy for him to take their advice, for the United States has no leverage over Iran at present. Armed intervention is out of the question with American troops still bogged down in Iraq and Afghanistan. Economic sanctions would only supplement the largely ineffectual ones already in place, and it is ordinary Iranians who would probably feel the pinch. A US-sponsored coup d’état is no option; the country’s Islamist theocrats are eager enough to blame the unrest on Yankee interference as it is. In any case, the US and Iran have already gone down that road once before, in 1953—with miserable results for everyone involved.

Given the limited options available, why pillory the president for exercising caution? How can the same conservatives who, like me, were happy to deride Barack Obama’s treacly cant not so long ago demand even emptier rhetoric from him now? Why vociferously denounce the mullahs’ skullduggery when the US can do nothing to back it up? Of what use would such inspiring words be without commensurate deeds?

In August 2008, President Bush’s strong objections did not stop Russia from manhandling tiny Georgia. In 1991, President George H.W. Bush’s public musings that the Iraqi people should overthrow Saddam Hussein led to a bloodbath, when the Kurds and Shi’ites proved too weak to finish off Saddam and the US refused to help them get the job done. In 1989, the world watched helplessly as China’s Deng Xiaoping bloodily shattered the Tiananmen Square protestors’ dreams of democracy in a country that called itself a “People’s Republic”. Poland in 1981, Czechoslovakia in 1968, Hungary in 1956, East Germany in 1953: on goes the long, tragic list of popular uprisings that failed because tyrannical regimes had the muscle to suppress them and the will to use it—and because the US had no way of stopping them.

Displays of “people power” such as the current one in Tehran never fail to thrill and inspire; but their chances of success depend on how well organized and well armed—and how ruthless—both the people and their rulers are. If the latter are mightier, and neither the US nor any other outside benefactor is in a position to step in to level the playing field, the rulers will likely win out, at least in the short term. The Iron Curtain was rent in 1989 primarily because Mikhail Gorbachev refused to use Soviet might to prop up the Eastern European Communist regimes any longer. South African apartheid began to crumble the following year because the regime eventually wilted under the international community’s ostracism. These rulers caved partly because they lacked the bloody-mindedness it took to keep locking up or gunning down their opponents.

Only time will tell whether the mullahs will similarly lose their nerve. If not, then they will probably win this confrontation. It would be treacherous for President Obama to egg the protesters on if he cannot have their back if and when the crackdown begins in earnest. Fortunately, whatever his shortcomings, Barack Obama is not the treacherous type.