The Limits of State Power

AndyMcCarthyby John Kirke7/21/15
An Open Letter to Andrew C. McCarthy  •  Author’s Note:  At least in earthly matters, I believe in what Robert Maynard Hutchins describes as “the Great Conversation,” the dialogue that spans the ages, documenting western civilization’s seeking and arguing for the truth.  I believe I can provide at least a tiny contribution to that dialogue, and my widow’s mite would include the questions I have for some of today’s writers.  While I’ve written privately to pundits in the past, I think it may be useful to post these letters in public, going forward, for at least two reasons.

For one thing, the pundit might feel it’s more worth his time to respond, writing answers that more than one person would read.  If he’s already answered the same sort of questions elsewhere, I would appreciate being directed to where I could read those answers.

But even in the absence of a direct response from the addressee, the questions may be useful to other readers.  Everyone can and should consider the questions, as I think they shed light on the issues of the day.

I believe the following questions should be raised.

Andrew – if you don’t mind, Andy:

It’s not entirely fair to some of the other regular columnists – particularly Victor Davis Hanson and David French – but I’ve come to consider you the token conservative of National Review.  I know, I know, NR presents itself as the flagship of conservatism, but I think it sometimes does more harm than good to the conservative cause, particularly in service to the Republican establishment.

I sometimes wonder if you think the same thing, as I remember you were the voice of reason and sanity when you publicly repudiated the editors, first in 2010 when they endorsed John McCain over a credible and genuinely conservative primary challenger, and again in 2011 when they published the appalling, high-profile piece denouncing Newt Gingrich (and almost parenthetically, Rick Perry and Michelle Bachman) to clear the path, quite transparently, for that managerial progressive Mitt Romney.

Your recent blog posts at PJ Media – on the Supreme Court’s oligarchical imposition of same-sex marriage and Planned Parenthood’s agenda of shrouding infanticide in euphemism – have been masterful, morally serious and sober-minded.   The writing of NR’s other heavy hitters from Kevin Williamson to Charles C.W. Cooke and even Jonah Goldberg make clear that they would never write so forcefully in opposition to both major prongs of the Left’s agenda of sexual libertinism, and I wonder if these essays were posted at PJM because they wouldn’t quite fit at NRO.

You’ve been one of the most courageous voices calling for Congress to use its constitutional authority to rein in spending and presidential lawlessness, and you were one of the first to point out what has recently been dubbed “failure theater,” the con job of the GOP Congress, where “they first arrange things to ensure that Obama gets his way, then formally vote against him once they are certain that opposition is futile.”

Along with Stanley Kurtz’ often overlooked Radical-in-Chief, I believe your books The Grand Jihad and Faithless Execution provide the framework for understanding Barack Obama and an agenda that would otherwise be inexplicable or incorrectly attributed to mere incompetence, a framework supported by compelling and well-documented arguments.  Your earlier book highlights the common cause that the Left and jihadists make in opposing their common enemy, the traditional institutions of western civilization and the liberty that they protect, but I wonder if – going from Kurtz’ focus on Obama’s stealth radicalism – we haven’t sufficiently emphasized their similar tactics.  It was clear before the 2008 election that a man who chose to build close personal and professional relationships with a race-essentialist, demagogic pastor and an unrepentant domestic terrorist could not have possibly been sincere in positioning himself as a post-partisan, post-racial moderate, and Obama’s continuing act of deception seems like the Leftist version of the doctrine of taqiyya, Islam’s sanction of dishonesty toward unbelievers.

(That deception during the election, arguably beyond the lying that we expect and unfortunately tolerate in our political class, was Obama’s first assault on our constitutional order:  a representative republic requires the consent of the governed, and Obama’s campaign and its enablers in the media sought to render our informed consent impossible, with a random plumber getting far more scrutiny than the actual presidential candidate.)

I attended the lecture you gave on The Grand Jihad, at Emory University in October, 2010, and meeting you afterwards was a sincere pleasure.  I would love the opportunity to pick your brain over a beer, but perhaps written correspondence provides the best opportunity for a substantive discussion of some of the articles you’ve published.

I hope you don’t mind a few questions about your writing.

First, I have found your writing provides an impromptu education in law; you seem to connect many of your arguments to fundamental legal principles, and you take pains to explain those principles to your layman audience.

Could you recommend a book or a short reading list of books that would provide a layman with a basic understanding of the legal principles that ought to guide our society?

If not, that might be a good opportunity for you to fill an unmet need, a jurisprudential companion to Thomas Sowell’s Basic Economics.  Otherwise, there’s an opportunity for someone to review your articles and extract the general principles found within, an opportunity I myself might want to take up.

Second, I find myself disagreeing with you or questioning your arguments very, very rarely, and I’d like to ask you about two subjects where I’m not sure I find your position convincing.

(A third subject was NR’s 2012 firing of John Derbyshire, a sometimes quite good writer when he wasn’t being hobbled by his atheistic naturalism and his outright contempt for religion.  It was rare to see you and Mark Steyn disagree, and I think Steyn had the better argument then, and he’s since been vindicated in his concerns about the ever-shrinking boundaries of free speech.)

(It’s still amazing, that National Review fired Derbyshire for an article written elsewhere that ran afoul of PC dogma, while simultaneously publishing a cover story that betrayed orthodox Christianity by slandering opponents of Mormonism.  That piece by Kevin Williamson is the reason I cancelled my subscription of more than a decade, but I digress.)

You’ve written quite a few times about the government’s collection of metadata, and you’ve crossed swords with Rand Paul and the libertarians in the process.  Myself, I think there must be a balance between individual liberty and traditional morality – I’m a moderate along that axis, but firmly on one side of the right-left axis – and I have serious reservations about both extremes, not least for their antipathy toward a strong national defense and for their leaderships’ willingness to cultivate a personal devotion that borders on the unhinged.  And as we saw with the protestations that Bruce Jenner really was different than Rachel Dolezal, the intellectual leaders of the libertarian movement aren’t always our superiors when it comes to the consistent application of principles.

Still, just as the Left and the Islamists have set aside their differing goals to unite against a common enemy, fusionist conservatives should, whenever possible, join with libertarians, paleconservatives, and even both remaining Scoop Jackson Democrats in our response.  In some of your most recent writing about the Patriot Act, you reiterate that you find Rand Paul’s opposition based on appeals to the Constitution to be “frivolous,” but you argue for your case without quite the incendiary rhetoric of your 2013 piece, about how “gleeful crooks” would welcome Paul’s proposed legislation with the toast, “Here’s to crime!”   I’m not sure that kind of writing is a very effective way to prompt opponents to reconsider their position.

More importantly, I’m still not convinced that your position is correct in this case.

In 2013, you wrote, without much apparent respect, that “The senator apparently did not read the Fourth Amendment before cutting and pasting it into his bill.”

It requires (in relevant part) that “the right of the people to be secure in their persons, houses, papers, and effects, shall not be violated.” Perhaps Senator Paul will edify us on how it is “clear” that a phone record, owned and possessed by a telephone service provider (not the customer), qualifies as the person, house, paper, or effect of the customer, such that the government’s acquisition of it violates the Fourth Amendment. The federal courts have consistently, emphatically rejected this implausible suggestion, holding that government’s collection of phone records does not even implicate the Fourth Amendment, much less violate it. [emphasis in the original]

You elaborate in your piece written in late May, about this “fatal flaw” in Paul’s claim that the Patriot Act involves a general warrant.

The Fourth Amendment requires the government to obtain a judicial search warrant only if it wishes to search or seize categories of very personal property that are spelled out explicitly in the amendment — namely, one’s “person, house, papers and effects.” Business records that are the property of a third party (namely, a telecom) do not constitute the customer’s person, house, papers, or effects. You do not have a constitutional privacy interest in property that belongs to a third party.

You claim that the federal courts have “consistently, emphatically rejected” the notion that telephone records are constitutionally protected, but I wonder how much that has to do with the judicial activism of the progressive era.  The earliest case I’ve seen you cite on the issue is 1928’s Olmstead v. United States, toward the end of the progressive boondoggle of Prohibition, which prompted the federal government to bulk up to fight the organized crime that its policies encouraged.

The two committed progressives Woodrow Wilson and Teddy Roosevelt vied for the presidency in 1912, and the nation’s first coast-to-coast long-distance call wasn’t until 1915.  I don’t see how we can trust that the federal courts’ record was consistent with an originalist approach to the Constitution, even if the courts were consistent with their own rulings.

There were private banks and couriers long before the large financial companies and the electronic telecommunications providers, and the services they provided were very similar if rudimentary.  They presumably kept records about their customers’ accounts or the deliveries that were made, and these records could be useful to prosecutors.

Around 1795 or 1805, would law enforcement have access to these private companies’ financial and communication records, without a warrant?

You write that the third party’s property doesn’t constitute the customer’s papers or effects, but surely that’s not the only relevant question.

Doesn’t the third party have a constitutional privacy interest in its own property?

The modern approach to telecom records seems to treat the provider as a government agency and not as a private company.  I can see how that’s helpful to law enforcement, but that cannot be the only criterion by which we judge the policies of an agency whose powers are ostensibly limited by a written constitution.

The other subject where I have my concerns is your recent support of Trade Promotion Authority, as it seems counter to your position that President Obama is guilty of faithless execution of his oath of office.  Your June Corner post saying Yes on TPA  doesn’t seem to come from the same voice of reason who announced his book on impeachment just a year prior.

Last year, you announced how your book built the case of Obama’s impeachment: his fraud, his power-grabs, his dereliction of duty, and his willful undermining of our constitutionally protected rights.  You wrote how the only ways to stop the president’s lawlessness is the ballot box, the power of the purse, and impeachment.

This past June, you endorse the NR editors’ argument that Congress should give this very same president authority to negotiate trade agreements.

The rationale that, because President Obama abuses executive authority, he should be denied any tool that enhances executive authority is a worthy rule of thumb. But its premise is that executive authority is actually being enhanced in a manner that Congress cannot check. That, as our editorial explains, is simply not true when it comes to TPA.

In the editors’ words, “Republicans should side with free trade, and a proven method of promoting it.”

Hasn’t this particular president done enough to prove he cannot be trusted with any power?

Isn’t giving this particular president trade authority anything but a “proven method” of promoting free trade or indeed ANY of this nation’s interests or historical principles?

Isn’t refusing to give this particular president more power a fourth way to rein in his lawlessness, or at least demonstrate an unwillingness to be an accessory to it?

And doesn’t arguing that this particular president should be given more authority undermine any effort to build a case for his impeachment, either for you as a polemicist or for the Republican politicians in office?

That Congress can check the authority that it gives Obama is no argument that it should give him the authority in the first place, and that the 45th president might be trusted with that authority is no argument for giving it to the 44th president.

If these questions have been addressed elsewhere, I’d greatly appreciate your pointing out where.

Otherwise, I’d love to see these questions tackled.  I think they raise issues worth addressing.

You had a great article two weeks ago on the awful Corker bill, and you followed it up with an excellent rebuttal to a strangely anonymous criticism (at a Corner post where comments seem to be disabled), followed by an essential argument that Congress need not and should not be bound by the Corker bill since Obama’s agreement with Iran transcends the bill’s limited scope.

I’d like to see your skills at analysis trained on my questions.

You’re a very sharp writer and prosecutor, and I would normally dread to get in the ring with you, but your beating me up on these issues and explaining where I misunderstand might help persuade more readers to your position.

Either way, I will continue to follow your writing closely, looking forward to gaining an ever better grasp of the legal issues in play.

Most sincerely,

Lawrence B. Beasley, writing at StubbornThings as John Kirke

PS, added 7/24: Andy, there is one more obvious question. In that lengthy Corner post about the Corker bill’s irrelevance, you write that we live “in a uniquely perilous time, when Congress is as determined to abdicate its constitutional responsibilities as Obama is to violate his.”

I agree, and so I wonder:

How difficult would it be to write a sequel to Faithless Execution, about the treacherous behavior of the Republican leadership in Congress?

I believe the answer is all too obvious, and it’s why I don’t think it’s enough to keep the GOP in power on Capitol Hill and support another progressive Republican for president.

John R.W. Kirke is a pseudonym of a Christian husband, father, and engineer who has written elsewhere under other names, including “Lawrence” in the comments at National Review Online. He remains deeply moved by the unpublished memoirs of Professor D. Kirke (1888-1949). • (835 views)

John Kirke

About John Kirke

John R.W. Kirke is a pseudonym of a Christian husband, father, and engineer who has written elsewhere under other names, including "Lawrence" in the comments at National Review Online. He remains deeply moved by the unpublished memoirs of Professor D. Kirke (1888-1949).
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2 Responses to The Limits of State Power

  1. Timothy Lane says:

    I think the TPA bill was a mistake. In the first place, when the Republicans devote their greatest efforts to giving Obama what he wants, it makes one wonder why we elected them — and why we should re-elect them in 2016.. In the second place, a bill containing hundreds of pages (which no one could copy if for reading by the general public) is NOT a bill about free trade, but some sort of managed trade. And in the third place, no one in his right minds would ever increase the Fascist Messiah’s power by one iota, knowing that he WILL misuse it.


    Good to hear from you, Lawrence. Since Tim already addressed the TPA issue, I’ll confine myself to the question of the NSA’s collection of phone-record “metadata”. I believe you hit on the key point that McCarthy missed when you wrote, “Doesn’t the third party have a constitutional privacy interest in its own property?” referring to the phone company’s ownership of its records.

    My answer is “Yes, they most certainly do,” especially since we the customers generally expect these records to be nonpublic. That is, while my phone number is public information, the fact that I recently called the office of a urologist is nobody’s business but mine (yes, the phone company “knows” but they really don’t care). Thus the phone company has every interest (on behalf of its customers) in keeping this information private.

    The other problem with McCarthy’s analysis was that it relied on Supreme Court precedents, when the issue before Americans was not judicial but legislative: do we, as American citizens, want the government to have a data base containing every phone number we dial? In answering that question, we neither need to know about past precedent nor should we care. It is emphatically our call to instruct our representatives in Congress (who are supposed to work for us) as to whether we wish the NSA to collect this information or not. (I say “No!” by the way).

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