Does Woodrow Wilson Belong At Princeton?

Richard Epstein*

Richard Epstein

Richard Epstein

Back in 2008, the Princeton Alumni Weekly published the results of a panel deliberation ranking the university’s most influential alumni. At the top of the list was James Madison (class of 1771) and close behind him, in third place, was Woodrow Wilson (class of 1879), who was Princeton’s president from 1902 to 1910. He left the university to enter politics first as governor of New Jersey between 1911 and 1913 and then as President of the United States from 1913 to 1921. By all accounts, his presidency at Princeton transformed the school from a college for playboys into the serious academic institution that it has become today. He openly urged African Americans to apply and also hired the first Jewish and Roman Catholic faculty members.

It is a sign of the times that there is an active movement at Princeton, led by the students of the Black Justice League, to remove his name from the Woodrow Wilson School of Public and International Affairs and from the Wilson House at Princeton. The main charge against Wilson was that he was a racist for overseeing, as President of the United States, the systematic removal of black employees from the federal civil service long after it had been desegregated. He was also a sympathizer of the Klu Klux Klan. His resegregation policy provoked a huge backlash from the NAACP, which had previously endorsed his 1912 presidential campaign given his promises to be “President of the whole nation” and to supply black citizens an “absolute fair dealing.”

Sadly, Wilson’s racial views did not put him outside of the political mainstream during his time. In fact, this troubled part of his legacy has been, until recently, quietly placed on the backburner in light of his other supposed domestic achievements, which in poll after poll consistently place him in the top group of American presidents, with an overall ranking of seventh, behind George Washington (3), Thomas Jefferson (4), Abraham Lincoln (1), Theodore Roosevelt (5), and Franklin Delano Roosevelt (2), and Harry Truman (6).

It should be obvious from looking at the last four names listed that these kinds of surveys are shaped by leftist thinkers working in the progressive tradition. Wilson, notwithstanding his racist views, was a prominent progressive. One sign of Wilson’s political tensions is found by contrasting his first two appointments to the United States Supreme Court. In 1914, Wilson nominated his then Attorney General and former trust-buster, the obnoxious James Clark McReynolds, to a seat on the United States Supreme Court. Two years later, Wilson nominated Louis D. Brandeis, whose progressive views Wilson shared, as the first Jew to serve on the Supreme Court. During the twenty-three years that they served together, McReynolds, a vicious anti-Semite, detested Brandeis and even refused in 1939 to sign the customary letter of appreciation that the other justices wrote to Brandeis at the time of his retirement. But McReynolds was also the justice who penned, in 1925, Pierce v. Society of Sisterswhich contained one of the most influential and persuasive defenses of religious, economic, and personal liberty ever delivered by the Supreme Court. The progressive tent was big enough to accommodate some strange bedfellows.

Similar internal contradictions existed in Wilson’s thinking on domestic issues. On the one hand, Wilson worked for the lower tariffs so essential to free trade. On the other hand, he made good on his campaign promise to exempt labor unions from the antitrust law with Section 6 of Clayton Act, which Samuel Gompers, the most influential labor leader of the time, described as follows: “The declaratory legislation, The labor of a human being is not a commodity or article of commerce, is the Industrial Magna Carta upon which the working people will rear their structure of individual freedom.” What a disaster! Far from keeping workers out of commerce, the Clayton Act ushered in monopoly unions, which later received still greater protection with the major labor statutes passed during Franklin Roosevelt’s New Deal, such as the National Labor Relations Act and the Fair Labor Standards Act.

Wilson’s record was deplorable on other fronts as well. In 1919 and 1920, Wilson’s Attorney General A. Mitchell Palmer conducted extensive raids that led to mass arrests and deportations of radicals in the aftermath of the First World War. It was during Wilson’s watch that Eugene V. Debs, the socialist candidate for President, was arrested and convicted under the Espionage Act of 1917, which was upheld against First Amendment challenges, in Debs v. United States. Debs languished in jail for three years until he was pardoned by Republican President Warren G. Harding on the urging of his Attorney General Harry Daugherty, who otherwise did much to disgrace himself.

This incomplete list of incidents shows just how difficult it is to form comprehensive judgments about individuals whose overall legacy looms large over the pages of American history. Against this background, why should any group of students, however well intentioned, be able—by organizing sit-ins in the President’s office, no less—to dictate Princeton policy by pointing to one admittedly regrettable aspect of Wilson’s career?

Nonetheless, that ill-advised movement has received an additional boost from an outspoken editorial in the New York Times entitled “The Case Against Woodrow Wilson at Princeton,” which shows how easy it is to go over the top in times of political turmoil. For its first mistake, the Times insists that Wilson’s “racist policies . . . are still felt in the Country today.” The question is how. The civil service is no longer segregated. That bad act was undone by Franklin Roosevelt. And there are many affirmative action programs in education and employment, both inside and outside government, that have helped advance African Americans in this country for over the past 50 years. Ironically, that movement had to overcome the historical opposition of the national labor movement to all black advancement, which persisted far longer than Wilson’s inexcusable resegregation of the civil service. Thus, organized labor strongly supported the insidious 1931 Davis-Bacon Act, whose “prevailing wage” for government program froze itinerant black workers from the South out of government contract jobs in the North.

Similarly, organized labor used its monopoly power under the Railway Labor Act and National Labor Relations Act to consign black workers to inferior positions. When black workers were forced into white-dominated unions, these unions stripped them of their desirable jobs. Indeed the passage of the 1964 Civil Rights Act was only possible because the law insulated unions from any liability for the “mere perpetuation” of earlier discrimination. Surely, if the Times followed its own logic, it would advocate for the repeal, not expansion, of laws like Davis-Bacon.

Indeed, in this connection, remember from where the opposition to segregation came. The first John Marshall Harlan wrote a passionate 1896 dissent against the “separate but equal” principle that Plessy v. Ferguson used to justify government segregation of the railroads, segregation of schools, and anti-miscegenation laws. It is no accident that Adair v. United States rightly struck down as unconstitutional a federal law that imposed mandatory collective bargaining on common carriers. The classical liberals saw what the modern Princeton progressives miss—the huge dangers that labor legislation held, and still holds, for minority workers.

The Times also slanders the past by claiming that in 1948, when the Wilson school was named, “Black Americans were still viewed as nonpersons in the eyes of the state.” That’s not quite right. In 1947, New Jersey, Wilson’s own state, abolishedsegregation by constitutional amendment. In July 1948, Harry Truman began the process of desegregating the armed forces by an executive order. This executive order represented an enormous turnaround in government policy, for a decade before segregation was a fixed feature of military life. Looking more broadly at society, in 1947, Jackie Robinson came to the major leagues on the initiative of Branch Rickey, then general manager of the Brooklyn Dodgers.

Today’s willful misinterpretation of the past ignores the efforts of many people of all races to remove the stain of segregation from public life. Additionally, Wilson’s Princeton critics have no idea where to stop. Perhaps Princeton should expunge all reference to James Madison, who was a leader at the 1787 Constitutional convention that gave us the three-fifths clause and fugitive slave provisions entrenching slavery in the Constitution. Perhaps the United States should rename the Washington and Jefferson monuments, since both men owned slaves. Sadly, no people in high positions press the protestors on these issues. Quite simply, there can be no honest discourse on matters of race, or indeed on any other issue that divides this nation today, unless everyone who enters the conversation knows that their views are open to attack from critics on the other side.

The protesters all too readily embrace progressive policies that block the improvement of race relations in the United States. The operation of minimum wage and labor laws has that effect indirectly by cutting minority kids out of the workforce in droves. Elsewhere, the modern civil rights movement poses major dangers to civil liberties. The aggressive overreading of the antidiscrimination laws by the Equal Employment Opportunity Commission and the Office of Civil Rights in the Department of Education hounds businesses and universities with endless demands and investigations. Too many so-called human rights organizations attack fundamentalist Christians who refuse, for religious reasons, to supply wedding services to gay couples or contraceptive devices to their female employees.

Today’s myopic and dogmatic protestors have become so focused on their own grievances that they have lost track of how outsiders look at their demands. In an age of fundamental disagreements, our national leaders have to stress once again the case for showing tolerance for radically opposing views on religious, racial, and personal matters. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

What to Be Thankful For?

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

What if the government’s goal is to perpetuate itself? What if the real levers of governmental power are pulled by agents and diplomats and bureaucrats behind the scenes? What if they stay in power no matter who is elected president or which political party controls Congress?

What if the frequent public displays of adversity between the Republicans and the Democrats are just a facade and a charade? What if both major political parties agree on the transcendental issues of our day?

What if the leadership of both major political parties believes that our rights are not natural to our humanity but instead gifts from the government? What if those leaders believe that the government that gives gifts to the people can take those gifts back?

What if the leadership of both parties gives only lip service to Thomas Jefferson’s words in the Declaration of Independence that all people "are endowed by their Creator with certain unalienable Rights, (and) among these are Life, Liberty, and the Pursuit of Happiness” and that the purpose of government is to protect these rights? What if the leadership of both parties dismisses these ideas as just Jefferson’s outdated musings? What if Jefferson’s arguments have been enacted into the federal laws that all in government have sworn to uphold?

What if the leadership of the parties believes that the constitutional requirement of due process somehow permits mothers to kill the babies in their wombs out of fear or convenience? What if the leaders of both parties believe that the president should be able to kill whomever he wants out of fear because due process is an inconvenience?

What if President Barack Obama has killed Americans and claimed that he has done so legally, relying on the convenient arguments of his attorney general, who falsely told him his killings are consistent with due process? What if the Constitution requires due process whenever the government wants someone’s life, liberty or property, whether convenient or not? What if due process means a fair jury trial, not an ordered killing?

What if the congressional leadership and most of the membership from both major political parties believe in perpetual war and perpetual debt? What if the history of American government in the past 100 years is proof of this nearly universal belief among the political class?

What if the political class in America believes that war is the health of the state? What if the leadership of that class wants war so as to induce the loyalty of the voters, open the pocketbooks of the taxpayers and cause compliance among the people? What if the political class uses war to enrich its benefactors? What if the government has been paying for war by increasing its debt?

What if the political class has been paying for prosperity by increasing the government’s debt? What if that class has controlled the cash-creating computers at the Federal Reserve and the free cash the Fed creates is to bankers and traders what heroin is to addicts? What if the $18.6 trillion current federal government debt has largely been caused by borrowing to pay for war and false prosperity? What if 20 cents of every tax dollar collected by the feds today is spent on interest payments for the government’s debt?

What if American taxpayers are still paying interest on debts incurred by Woodrow Wilson, FDR, JFK, LBJ, Ronald Reagan and every modern president?

What if the silent damage that the artificial creation of cash causes has been manifested not in price inflation but in equity and savings deflation? What if the manifestation of equity deflation is that too much of everything we own secures too much debt? What if the folks at the Fed who create the cash have kept interest rates so low that there is little incentive to save?

What if we all own a smaller percentage of what we think we own because the value of what we own has decreased as the debt on what we own has increased? What if the banks have borrowed the money that they lend? What if they can’t pay it back? What if the stock market is soaring on borrowed money? What if mansions and shopping malls are popping up but they secure more debt than they are worth? What happens when the plug is pulled on this temporary artifice when those debts come due?

What if the government demands transparency from all of us but declines to be transparent to us? What if the government fosters the make-believe notion that it exists to serve us? What if the government denies that it works for us and thinks we work for it? What if it has access to all of our communications, bank accounts, health and legal records, and monthly utility and credit card bills? What if the government knows more about us than we know about it?

What if the government stays in power by bribery? What if it bribes the states with grants of cash, the rich with bailouts, the middle class with tax cuts and the poor with welfare? What if the courts have approved this bribery?

What if, on Thanksgiving Day, our gratitude is not to the government that assails our freedoms but to God, who gave us our freedoms? What if, on Thanksgiving Day, our gratitude is for life, liberty and the pursuit of happiness? What if we possess them despite the government?

What if, on Thanksgiving Day, we should be most grateful that we are free creatures made in God’s image and likeness? What if we are free to reject the government?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Obama's ISIS Paralysis

Richard Epstein*

Richard Epstein

Richard Epstein

The recent events in Paris and elsewhere have led the leaders of the civilized world to search for an appropriate response to the barbaric actions of the Islamic State of Iraq and Syria. The toll of deaths, injuries, and property damage all point to a single conclusion: something powerful must be done, and done now. In spite of this, during an intense press conference in Turkey, President Obama doubled-down on his current strategy, despite the pushback from an ever-more skeptical press corps: “The equation,” Jerome Cartillier of AFP said, “has clearly changed. Isn't it time for your strategy to change?” The centerpiece of Obama’s flawed strategy is the refusal to commit American ground troops to more than a marginal role in seeking to drive ISIS from the extensive territories that it occupies in Syria and Iraq.

The President’s policy stems from an emphatic rejection of Pax Americana, or the view that the United States’ military force is the anchor of the free world’s security. Indeed, my own decidedly pessimistic appraisal of the dire consequences of Obama’s ISIS policy sadly underestimated the massive level of dislocation and violence that would follow from the President’s insistence that patience is required before an entity like ISIS is “ultimately” destroyed.

But what horrors must innocent people endure in the interim? How many more of them have to be slaughtered because of their religious beliefs? How many millions of refugees have to be driven from their homes to escape death and subjugation at the hands of ISIS? How many tens of millions of people in Europe, Africa, and the Middle East have to sit on tenterhooks not knowing where or when the next terrorist attack will take place? How long must Brussels stay under lockdown? Of these realities the President says not one word. His current aloofness cannot be defended to an international audience on the pious ground that the likelihood of an immediate terrorist attack on the United States seems to be low.

So what then should be done? At this point, the only reasonable response includes a military option. But, by the same token, the self-imposed restraint that the President places on the use of ground troops is likely to rule out any and all strategies that could take the fight to ISIS. Nor is there any reason to think that Hillary Clinton’s proposal of a no-fly zone would do much to curb ISIS. ISIS does not even have its own air force. The simple truth is that airpower cannot dislodge entrenched people on the ground. That point became painfully clear to the Israelis when, in March of 2002, they had to confront the reality of the Second Intifada. They did so by going door-to-door to root out the terrorists from their nests. There is no guarantee that this strategy can have the same effect in the larger and more complex regions of Iraq and Syria that are now under ISIS control. But the alternative approach of grinding them down slowly, over time through the air, gives them all too much leeway to further establish their own positions on the ground.

The President is reluctant to commit ground forces because of America’s troubled history of involvement in Iraq. The common argument there is that the United States made a foolish decision to invade Iraq with ground forces in 2003. The invasion, the argument goes, ultimately and inexorably led twelve years later to the current situation in Iraq. In the words of Peter Beinart, writing in The Atlantic, the Bush administration held the illusion that “it could shatter the Iraqi state and then quickly and cheaply construct a new one that was stable, liberal, democratic, and loyal to the United States.”

Yet the history of what happened is far more complex than this simple-minded indictment of the invasion suggests. We cannot assume that Iraq and the Middle East would have turned out any better, or into a bed of roses, if the United States had just held its hand. No one knows what the alternative history would have been with Saddam Hussein still in power and the United States on the sidelines. Nonetheless, given the endemic turmoil in that region, it is likely that the next dozen years would have been filled with their own unfortunate twists and turns, some of which could have required American military intervention later on, and perhaps even on less favorable terms.

More importantly, it is a mistake to attribute the current situation to the initial decision to invade, in light of all that followed. There is little doubt, for example, that the decision in 2004 to root out thousands of Baathists from government positions greatly contributed to the internal discord inside Iraq. Even at the time, it seemed that the more sensible strategy was to keep all but a handful of key Baathists in their government positions to avoid creating the resentment that fueled social and political unrest that reached epic proportions by 2006.

At this point, the history turns to a systematic evaluation of the surge that George W. Bush put into place in early 2007, headed by General David Petraeus, which ultimately brought 30,000 new troops to Iraq. At the time, many prominent political leaders, including then Senator Barack Obama, predicted that the surge would be a massive failure. At the time, Senator Obama said: “I am not persuaded that 20,000 additional troops in Iraq is going to solve the sectarian violence there. In fact, I think it will do the reverse.”

But his dire prediction proved false. In retrospect, it was clear that David Petraeus and his key staff organized, in the General’s own words, “a comprehensive strategy.” This strategy included taking the fight to the enemy, but required far more by way of coordination with local allied forces; it also required efforts to embed American troops in the local communities in which the violence was the greatest in order to reassure civilian populations that the United States was on their side. Beyond this, the United States had to walk the tightrope between warring factions of Sunnis and Shiites, and indeed Petraeus chose to bankroll many groups that had previously engaged in attacks against American military personnel and bases. It was a hard slog, but the violence and the casualty rates began to drop toward the end of 2007, and continued to decline throughout 2008, so that by the time President Obama took office in January 2009, many of the major blunders of the early war had been largely corrected.

But Beinart criticizes the surge. He claims that the positive outcomes occurred “fortuitously” because many Sunnis had turned against al-Qaeda’s senseless brutality. But Sunni leaders only had the option of turning against al-Qaeda precisely because they had someone in the form of Petraeus who could back them up with force and other forms of assistance. It is of course true that a meltdown took place once the United States failed to make the Iraqi “government more inclusive.” But the blame for that failure lies squarely on Obama’s shoulders. Even before he took office, his rhetoric was that of a tired loser heading for the exits, which meant that everyone knew that the United States was no longer able to broker, with both promises and threats, the endless tensions between the Shiites and Sunnis.

Obama’s position was always that the United States would back any unified government that emerged in Iraq. But that position got things exactly backwards, for the only way that the unified front could emerge was for Iraqis to believe that the United States would stay for as long as was needed, which would ensure enough stability existed so that the new government could succeed. It is far easier to keep a stable position stable, and thereby to pave the way, as Petraeus envisioned, for a slow drawing down of American troops, than it is to have to mount a major new assault against a hostile enemy from scratch. A proper completion of the initial Bush strategy would not have generated a Middle Eastern utopia, but it would have generated a more stable Iraq—which, in turn, could have blocked the ability of ISIS to conquer much of Iraq over the feeble resistance of the disorganized and demoralized Iraqi army.

There is a clear lesson to take away from the surge: the sustained use of force on the model of Petraeus is not, as Chicago Tribune columnist Steve Chapman claims, some “fantasy” that is necessarily doomed to fail. It is only doomed to fail if our indecisive President employs half measures to take down ISIS. In one sense, an attack on ISIS might prove easier than one on Saddam, who, after all, had all the prerogatives of a nation state. ISIS has no legitimacy in the territories that it controls, in sharp contrast, for example, to the Afghan tribal chiefs who enjoy fierce local support. A coordinated attack against ISIS modeled on the 2007 surge could probably start to have an immediate effect. Of course, it would not neutralize other attacks from outposts in other countries. But so long as those operations are taken from individual safe houses, it should be possible, as has happened in France, for local police and military units to root them out of their hiding places.

At this juncture, the President has to confront the painful reality that the overall security of Europe and the Middle East has declined precipitously since he took office. So too has the prestige and influence of the United States. Nonetheless, his current stand is at once defiant and delusional. He speaks of his “comprehensive strategy using all elements of our power—military, intelligence, economic, development, and the strength of our communities.” But the military component of this program has been about 8,000 airstrikes, which works out over the past 430 days to fewer than 20 sorties per day in a territory that is the size of the United Kingdom.

It is pointless for the President to speak about smallish territorial adjustments while ignoring the huge caches of military materiel at the disposal of ISIS, and its millions of dollars of oil revenue from the areas that it controls. It is also a mistake for him to think of humanitarian aid to the refugees as a viable long-term strategy, given that it imposes enormous financial, logistical, and security issues on the sagging economies of Europe and the Middle East. That situation will only get worse unless some strong steps are taken to stop the underlying violence causing the current flow of refugees. His weak leadership is generating major divisions in public sentiment as people are forced to grapple with the difficult trade-offs between compassion on the one hand and national safety on the other.

A president has to play the hand that he is dealt, and not wish that the world were a kinder place. President Obama cannot hope to win the struggle against ISIS with the long game when he is clearly losing the short game. There is no reason to think that the Paris disaster is the last one that will hit Europe, or that a similar attack could not strike the United States. The only way to ensure the security of America and its allies is to commit ground troops against ISIS in the Middle East. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Paris and Freedom

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

The tragedy in Paris last Friday has regrettably been employed as a catalyst for renewed calls by governments in western Europe and even in the United States for more curtailment of personal liberties. Those who accept the trade of liberty for safety have argued in favor of less liberty. They want government to have more authority to intrude upon the daily lives of more innocent people. Their targets are the freedoms of speech and travel and the right to privacy. Their goal is public safety, but their thinking is flawed.

The clash between liberty and safety is as old as the republic itself. The United States was quite literally conceived in liberty. In the Declaration of Independence, Thomas Jefferson painstakingly listed the ills and evils of the British government’s administration of the Colonies. There were no complaints about the absence of public safety; rather, Jefferson’s “long train of abuses” cataloged the British government’s interference with the colonists’ personal liberties.

What has made the Declaration so enduring and unique in world history is its unambiguous embrace of the natural law as its explanation of the origin of our rights. The British king thought he reigned by the will of God -- the so-called divine right of kings.

Jefferson, influenced by the British philosopher and political theorist John Locke, turned that belief on its head. He argued that our liberties are natural, even inalienable, because they stem from our humanity, which is a gift from God. How could the same God have given us natural, inalienable personal freedoms and also have given the king the natural right to interfere with those freedoms?

The Declaration’s answer is the profound rejection of the moral legitimacy of any government that lacks the consent of the governed, and its articulation of the Judeo-Christian ethic of valuing human life, and its acceptance of the belief that humans possess inalienable rights “endowed by their Creator.”

Notwithstanding the values of the Declaration of Independence, big government and petty tyranny reared their ugly heads almost at the start of the republic. In 1798, the same generation -- in some cases the same human beings -- that wrote in the First Amendment that “Congress shall make no law … abridging the freedom of speech” also enacted the Alien and Sedition Acts, which punished speech critical of the government. Abraham Lincoln locked people up for speaking out against the Civil War. Woodrow Wilson locked people up for singing German beer hall songs during World War I. FDR locked people up just for being Japanese-Americans in World War II. All of this was later condemned by courts or Congresses -- and surely by enlightened public opinion.

It is in times of fear -- whether generated by outside forces or fomented by the government itself -- when we need to be most vigilant about our liberties. When people are afraid, it is human nature to accept the curtailment of liberties, whether it be speech or travel or privacy, if they become convinced that the curtailment will somehow keep them safe.

But if Jefferson and all the history and tradition of American cultural and legal thought have been correct, these liberties are natural rights, integral to all rational people. I can sacrifice my liberties, but I cannot sacrifice yours. Personal liberty is subject only to due process, not majoritarianism. Stated differently, we can only morally and legally and constitutionally lose our personal liberties when our personal behavior has been adjudicated as criminal by a jury after a fair trial; we can't lose them by a majority vote of our neighbors or our representatives in government or a presidential executive order.

Moreover, the Paris killings, the Fort Hood massacre, and the Boston Marathon killings are all examples of the counterintuitive argument that the loss of liberty does not bring about more safety. It does not. Rather, it gives folks the impression that the government is doing something -- anything -- to keep us safe. Because that impression is a false sense of security, it is dangerous; people tend to think they are secure when they are not. In fact, the government's reading everyone’s emails and listening to everyone’s telephone calls is making us less safe because a government intent on monitoring our every move suffers from data overload.

Because government is buried in too much data about too many folks, it loses sight of the moves of the bad guys. Add to this the historical phenomenon that liberty lost is rarely returned -- as a new generation accustomed to surveillance attains majority, surveillance seems the norm -- and you have a dangerous stew of tyranny. Just look at the Patriot Act, which permits federal agents to bypass the courts and write their own search warrants. It has had three sunsets since 2001, only to be re-enacted just prior to the onset of each -- and re-enacted for a longer period of time each time.

Since the Charlie Hebdo massacre in Paris in January, the police in France have been able legally to monitor anyone’s communications or movements without a warrant and without even any suspicion. Today they can break down any door and arrest whomever they please, and this past weekend, the French Cabinet declared that authorities can confiscate all firearms in Paris. All that gives law enforcement a false sense of omnipotence over the monsters.

Only good old-fashioned undercover work -- face to face with evil, what the professionals call human intelligence on the ground -- can focus law enforcement on the bad guys. And an armed citizenry strikes terror into the hearts of would-be killers and even stops them before they complete their horrific tasks. But don’t try telling that to the French government.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Spineless Leadership at Yale

Richard Epstein*

Richard Epstein

Richard Epstein

When Barack Obama was elected President in 2008, my many progressive friends frequently reassured me that his presidency would mark a transformation of race relations in the United States. That prediction has proved half true. Things have surely changed in the last seven years—but for the worse. Racial tension and discord has gone way up, resentments have increased, and the levels of violence, confrontation, incivility, and ill-will have risen, taking an immense toll on our political and social institutions. Throughout all of this turmoil, the President has largely remained aloof, even though strong leadership is urgently needed to stand up against the radicals attacking our social institutions.

Yet another example of how not to handle race relations came recently from Yale University, where I attended law school some fifty years ago in another period of national racial tension and unrest. The incidents surrounding the wearing of Halloween costumes at Yale has been well critiqued, but needs to be set into a larger perspective.

The incident began with an email from Yale’s Intercultural Affairs Committee, which advised students to be aware of the risk of “cultural appropriation and misrepresentation” by such acts as “wearing feathered headdresses, turbans, wearing ‘war paint’ or modifying skin tone or wearing blackface or redface.” The letter goes on to pay lip service to freedom of speech even as it decries these various forms of social insensitivity. A letter of this sort from an official body carries more than a hint of official disapproval of actions that do not toe the line.

That letter in turn provoked a thoughtful response from Erika Christakis, the associate master of Silliman College: “I wonder,” she wrote, “if we should reflect more transparently, as a community, on the consequences of an institutional (which is to say: bureaucratic and administrative) exercise of implied control over college students.” She goes on: “As a former preschool teacher, for example, it is hard for me to give credence to a claim that there is something objectionably ‘appropriative’ about a blonde-haired child’s wanting to be Mulan for a day. Pretend play is the foundation of most cognitive tasks, and it seems to me that we want to be in the business of encouraging the exercise of imagination, not constraining it.”

Her e-mail provoked a fierce reaction on campus by some students. At least one Yale student cursed out her husband, Professor Nicholas Christakis, the Master of Silliman College, for his wife’s temerity to challenge the received wisdom. Colleges, we are now told, are to be “safe spaces” for students who are keenly aware of “microaggressions” and other perceived slights against their personal identities. This, too, was the argument the Yale student bombastically made to Christakis. Students like her want universities to protect them from any unpleasant thought or idea that may upset them. They of course can lash out against others from their “safe spaces,” but everyone else must back-peddle or face the consequences.

This approach is ruinous to the intellectual and moral development of students, and leaves them ill-prepared for life’s challenges. If only on educational grounds, it is critical to rise up and challenge these students by insisting that the exchange of views, often hostile and disagreeable, is essential for the cultural and intellectual health of a university. It was just this position that my University of Chicago colleague, Professor Geoffrey Stone, took in his recent post on free speech at Mizzou and Yale, which cited the balanced and nuanced report of the University of Chicago’s Committee on Freedom of Expression. The report noted that “the principle of complete freedom of speech on all subjects has from the beginning been regarded as fundamental in the University of Chicago.”

Unfortunately, Yale University President Peter Salovey does not share this belief in the importance of freedom of expression. In his message to the Yale community responding to the Christakis affair, he claimed that Yale had somehow failed and that “we must act to create at Yale greater inclusion, healing, mutual respect, and understanding.” Further, “Yale must be a place where each person is valued automatically, without having to demand or labor for that recognition.” So much for the idea that respect must be earned. At the end of his politically correct tribute to sensitivity and inclusion, Salovey tipped his hat to free speech, writing, “Our community also shares a commitment to free expression and an open exchange of ideas free from intimidation.” The “also” says it all.

There are two major problems with his announcement. The first has to do with the issue of freedom of speech. The second concerns the moral leadership needed in times of racial tension. It is clear that the First Amendment guarantee of the freedom of speech does not apply to Yale, which is a private institution. With respect to speech, Yale can adopt whatever rules it wants concerning the use of offensive and inappropriate language spoken on its campus. But its ostensible commitment to freedom of speech places sharp limitations on the restrictions that it ought to impose if it is to be true to its own ideals.

In a famous free speech case arising from the civil rights movement in Birmingham, Alabama in the 1960s, New York Times v. Sullivan, the late Justice William J. Brennan wrote that “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” And further, “the constitutional protection does not turn upon the truth, popularity, or social utility of the ideas and beliefs which are offered.”

It is just that toughness of mind that should prevail at universities. New York Times v. Sullivan involved a defamation case brought by a public official against a media defendant, but the general notion that free speech involves the right to say remarks that others find deeply offensive is much engrained in the law. That impulse undergirds, for example, the constitutional protection afforded for the desecration of the American flag for political purposes. As Justice Brennan also wrote in the 1989 case of Texas v. Johnson, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

There is good logic behind this decision. Let us start from the willingness to accept the famous harm principle of John Stuart Mill: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” The soundness of that principle depends critically on its definition of harm. Thus that principle properly applies to any use or threat of force by one person against another, for to allow those kinds of behavior is to risk wholesale social disorder. It applies as well to the use of fraud in ordinary human affairs, which, if left unchecked, could undermine much voluntary cooperation. Guarding against these two forms of harm ensures that the state power is used to back improvements in social welfare. Thus, when the state gives either private remedies or public sanctions against these behaviors, the rectification of wrongs between two private parties is aligned with overall social welfare.

The key calculations turn radically when harm is said to include offense at what other people say and do. Now, two undesirable consequences unfold. First, people have a strong incentive to become indignant and outraged at activities and ideas that they do not like. Shrug off the offending thought, and you have no rights. Rise up in righteous wrath, and you can demand that the state intervene to vindicate your interests in domestic tranquility. Unfortunately, offense and outrage is a game that anyone can play; in the end, the proliferation of claims forces the state to do one of two things. Either honor them all, at which point we turn into a police state, or honor only some of those claims, at which point the government picks sides in the war of ideas.

The second great defect of the offense principle follows from its selective application. The term “microaggression” is relevant here. Now the need to ramp up indignation is tempered, for in its place some people can veto the actions and thoughts of others simply by announcing their own offense. But these same people will insist that the notion cannot be universalized, so once again the government gets involved in making the application of the law turn on the identity of the speaker—a content-rich standard that opens the door to political favoritism and abuse.

In response, it can and should be noted that the university is not the state, so it can have rules about decorum and civility that the state cannot impose. After all, students and faculty who do not like what is done can transfer. The point here is that intermediate institutions should have greater power to regulate speech and other forms of behavior on campus because their ultimate penalty is only expulsion, not tort liability or criminal sanctions. They are, moreover, limited by the knowledge that their internal excesses can cost them the respect and financial support of their key constituencies.

Unfortunately, universities can also lose their souls. It is here where the Salovey statement falls so short. At no point in his letter does he stand proud for Yale’s accomplishments in academic research and social life. At no point does he condemn students for heaping abuse on Christakis, whom Salovey should praise for his fortitude and judgment in the face of senseless provocation. And most regrettably, his words seem to signal his acceptance of the grave and groundless charge that Yale—Yale!—has somehow failed its students and is guilty of some insidious form of institutional racism.

As an alumnus of Yale, I want its president to resist with all of the words at his command the groundless charges brought against it by righteous students and commentators. But Salovey unfortunately lacks the courage to tell the critics that their indictment of the university is deeply flawed. By assuming a position of weakness, Yale is inviting its harshest critics, both inside and outside the school, to tee off against faculty and students with whom they disagree. The only way to get responsible discourse is to stand up for what you hold dear in the face of reckless charges. There is a desperate need for reconciliation at Yale, but the institution can only begin to heal if its critics face the same relentless scrutiny that they heap on the university.

Sadly, these issues go beyond Yale. There’s a similar story to tell about Ferguson. Though an official report of the Department of Justice fully exonerated officer Darren Wilson for his use of force against Michael Brown, the Obama administration issued a second report that excoriated the Ferguson Police Department on other matters, which obscured the central message of the first report. The problem at Yale and in the Obama administration is that our national and university leaders refuse to defend their institutions, even when those institutions have worked well. It takes years to build up public and private institutions of excellence. It takes shockingly little time to rip them down.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The President and the Rule of Law

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

Earlier this week, a federal appeals court in New Orleans upheld an injunction issued by a federal district court in Texas against the federal government, thereby preventing it from implementing President Barack Obama’s executive orders on immigration. Critics had argued and two federal courts have now agreed that the orders effectively circumvented federal law and were essentially unconstitutional.

Though the injunction on its face restrains officials in the Department of Homeland Security, it is really a restraint on the president himself. Here is the back story.

President Obama has long wished to overhaul the nation’s immigration laws to make it easier for people who are here illegally to remain here and to make it easier for them eventually to acquire the attributes of citizenship. He may have a bighearted moral motivation, or he may have a partisan political motivation. I don’t know which it is, but his motivation has driven him to use extraconstitutional means to achieve his ends.

During his first term in office, he attempted to have federal laws changed -- quite properly at first -- by offering proposals to Congress, which it rejected. That rejection left in place a complex regulatory scheme that is partially administered by DHS and partially by the Department of Justice. It left about 11.3 million people unlawfully present in the United States.

The conscious decision of Congress not to change the law in the face of such a large number of undocumented people here left those people, adults and children, exposed to deportation. It also left them entitled to financial benefits paid for by the states in which they reside.

Deportation is a lengthy and expensive process. The courts have ruled that all people subject to deportation are entitled to a hearing, with counsel paid for by the government. If they lose, they are entitled to an appeal, with counsel paid for by the government. The government has teams of prosecutors, defense counsel and judges who address only deportations. The highest number of people the government has successfully deported in a year is about 250,000, which was done in 2013. If you add removals without trial (many are voluntary) and rejections at the border, the number swells to 438,000 a year.

While awaiting deportation, those people here unlawfully and not confined are entitled to the social safety net that states offer everyone else, as well as the direct benefits states make available to citizens, such as public schooling, access to hospital emergency rooms, and housing and personal living assistance.

Frustrated that Congress thwarted his will, President Obama -- resorting to his now infamous and probably regretted one-liner that he can govern by using a pen and a phone -- issued a series of executive orders in 2012 to various federal agencies, directing them to cease deportation of undocumented people if they complied with certain standards that the president wished of them. The standards, compliance with which would bar deportation, were essentially the same as those that the president had sought and Congress had rejected.

Can the president write his own laws or procedures?

In the litigation that came to a head early this week, 26 states, led by Texas, sued the federal government. In that lawsuit, the states argued that they would be made to endure unbearable financial burdens if the undocumented folks stayed where they are and if the states continued to make the same social safety net available to them as they make available to their lawful residents. Thus, the states argued, the president forced the states to spend money they hadn’t budgeted or collected to support a legal scheme that Congress had not only never authorized but expressly rejected.

Can the president write his own laws and procedures?

The states also argued in their lawsuit that if the DHS and DOJ complied with the president’s executive orders, those federal departments would be exceeding their authority under the statutes because the president was exceeding his authority. This is a president who has argued dozens of times in public that he is not a king and that he lacks the ability to recast the laws as he wishes they had been written.

Can the president write his own laws and procedures?

In a word: No. The president can issue executive orders to officials in the executive branch of government directing those officials to enforce the laws as the president wishes them to be enforced -- within the letter and spirit of those laws. But those executive orders cannot write new laws or revise old laws or ignore existing laws that the Congress clearly expects to be enforced. That is just what a federal district court judge ruled earlier this year and just what a federal appellate court ruled in affirming the district court earlier this week.

All people who embrace the rule of law -- whether they are for open borders or for an impenetrable border wall -- should embrace these rulings because they keep the president within the confines of the Constitution, which he has sworn to uphold.

Under our constitutional system of supposedly limited government, all legislative power is vested in Congress. The president enforces the laws; he doesn’t write them. His oath of office commits him to preserve, protect and defend the Constitution, and it further commits him to enforce the federal laws "faithfully" -- meaning whether he personally agrees with them or not.

The clash between the president and the courts is as old as our republic itself. Courts are traditionally loath to interfere with the business of Congress or the president. Yet when the behavior of another branch of government defies core constitutional norms, it is the duty of the courts in a case properly before them to say what the Constitution means and to order compliance with it.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The Common Law in the Supreme Court

Richard Epstein*

Richard Epstein

Richard Epstein

Much of the Supreme Court’s work is devoted to interpreting statutes and regulations generated by the modern regulatory state. Increasingly, the common law tradition seems to be of little relevance to resolving the great disputes of our time. In my view, relegating common law principles to the back-bench constitutes a major source of confusion in the Supreme Court’s constitutional jurisprudence. The reason is that modern statutory law is heavily parasitic on the common law. A clear understanding of the uses and limits of common law principles is often the only way to see to the bottom of the well in many Supreme Court disputes.

The importance of common law is illustrated by Spokeo Inc. v. Robins, which was just argued before the Supreme Court. InSpokeo, the plaintiff sought to bring a class action suit on behalf of all individuals who had been injured by inaccurate reporting under the Fair Credit Reporting Act (FCRA), which attaches a fine between $100 and $1,000 for each offense. In the particular case, the plaintiff Thomas Robins had alleged that the defendant’s credit report had misstated the plaintiffs’ marital status, income, and educational levels in ways that made it more difficult for him to gain employment. The District Court held that the plaintiff did not have standing under Article III of the Constitution to maintain that claim on the ground that he did not allege that he had suffered “any actual or imminent harm” that could support the case. The Ninth Circuit found that such injury did exist, and the matter should be allowed to go forward. The Supreme Court took the case to address the following issue:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

Oral argument revealed much confusion about common law principles. Justice Sonia Sotomayor, for example, managed to mangle one thousand years of history by stating, “I mean most of the common law rights, like property rights are given to you by statute. They are not given to you by the common law.” Justice Kagan stated with undue confidence that “Congress is better than we are [in] identifying concrete harms,” thereby establishing the requisite standing under Article III. But the resources of the common law were on this point far deeper than Justice Kagan recognized.

The best way to unpack these mistakes is to begin with the common law of defamation. The standard definition of defamation is set out in § 559 of the Second Restatement of Torts, which reads:

A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

The key to understanding how this definition works is to link its two clauses together. Standing alone, the notion of reputation is unduly abstract and appears not to be connected to what Justice Kagan called “harming people in real-world ways.” It was never thus at common law. The harm from defamation is made clear in the second prong of the Restatement definition: defamation is always directed to one or more third persons, and the source of the harm lies in their unwillingness to associate with the plaintiff once the false information was revealed to them.

Blackstone understood the point perfectly when he wrote in his Commentaries that slander, i.e. spoken defamation, “may endanger a man in law, may exclude him from society, may impair his trade, or may affect a peer of the realm, a magistrate, or one in public trust, an action on the case may be had, without proving any particular damage to have happened, but merely upon the probability that it might happen.” And the same principle applied with even greater force to written communications, where their effect is usually greater.

These principles apply in Spokeo. The defamatory words are clear, but their causal effect to the loss of some business or social opportunity still has to be demonstrated. In some cases, the plaintiff may do so by proving special damages, e.g., by naming the third person induced by specific false words not to offer a job to the plaintiff, not to vote for him in an election, nor to extend an invitation to join a club.

The traditional law of defamation also recognizes that in some cases it is not possible for the defamed person to identify the source of his business loss. In 1938, in Ellsworth v. Martindale-Hubbell Law Directory, the North Dakota Supreme Court allowed an attorney to sue for general damages when his legal ability had been misrepresented in Martindale-Hubbell, a major legal directory to which people looked in order to find lawyers in distant locations. The plaintiff could not identify the potential trading partners who declined to do business with him because of the errors in Martindale-Hubbell. Nonetheless, the North Dakota court said that potential clients could hardly be expected to call him out of the blue to say that they would not hire him. It therefore remanded the case to the trial court to give the plaintiff the opportunity to prove whether his decline in business income was attributable to the defendant’s publication of the false report.

Spokeo is therefore a modern variation on that ancient theme. The plaintiff believes that the false report has hurt him, and thus wants damages for that loss. However, he faces serious difficulties in showing that some harm actually occurred. It is very difficult to link up his failed job search with the entry errors. If tried, an astute defendant’s lawyer would list all sorts of independent reasons why the plaintiff came up dry. The examination would go through each failed job candidacy to try and pinpoint why the plaintiff was not chosen: bad interview, other strong candidates, bad fit for the job, and so on. The uphill climb is far steeper than in Ellsworth, where all action took place at a distance.

It is now possible to see how legislation might help fill the gap. The huge factual uncertainties may make it impossible to prove general damages at common law, but should they shut him out altogether? Against this backdrop, Congress does not need to identify concrete harms that elude common law judges. But it does have a decided institutional advantage in being able to come up with a statutory range of general damages precisely to overcome the shortfall. What the statute does is to liquidate in advance all uncertain claims of this sort. The plaintiff now needs to prove much less to make his case, but by the same token he receives much less in damages for that weakened claim.

At this point, the statutory scheme starts to make sense. Accordingly, the constitutional debate about standing now becomes a distraction. No longer is it necessary to moot the question of whether a bare statutory violation counts as a “concrete harm.” General damages at common law are meant to remedy a concrete harm. Nor does this issue pose any special difficulty under the standing requirement of Article III, which states that “The judicial power shall extend to all cases in law and equity.” Standing is nowhere mentioned in the text of Article III. So long therefore as general damages are allowed at law, the case is actionable at law, just as it would be in any state court. Whether class actions should be allowed is a separate question of judicial administration under the Federal Rules of Civil Procedure.

The moral is clear: It is not possible to keep common law conceptions out of modern statutory cases, nor is it desirable. Both the briefs and the oral argument in Spokeo show why it is important to get this right. Spokeo’s reply brief, for example, takes a confused, if extended, tour of common law principles to explain why concrete injury is suffered in other contexts, but not here. It notes that the concrete injury requirement was satisfied in an instructive case where the plaintiff was allowed to sue for assault when the defendant, who had been unable to get wine from the plaintiff’s tavern at night, struck at her with his hatchet, but did not touch her. That brief and the oral argument also made reference to the famous 1703 decision of Chief Justice Holt in Ashby v. White, where he famously declared that “the want of this privilege [of being barred from voting] occasions great loss and damage.”

The defendants also quoted Blackstone incorrectly for the proposition that “injurious effects” are needed to support an action. But his full sentence reads: “But mere scurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects, will not support an action”—in contradistinction to the situations for special damages, mentioned earlier in the same paragraph as set out in the passage quoted above.

Understanding common law principles is equally important in dealing with key constitutional cases as well. Thus, in the stolen valor case United States v. Alvarez, a divided Supreme Court held unconstitutional the Stolen Valor Act that imposed criminal sanctions against persons “falsely” claiming that they had received decorations and honors from the United States—including the Medal of Honor. The dangers presented by the false and knowing misrepresentation of credentials are parallel to those in defamation cases. It facilitates fraud against innocent parties, which, like general damages, is difficult to detect and prove in individual case. The same logic that allows a liquidated damage claim under the FCRA explains why criminal sanctions for these knowing wrongs make sense.

Speaking more generally, public remedies are needed to fill the gap when private rights of action for fraud do not function effectively.  Here, as in Spokeo, there are no short cuts to answering difficult questions of statutory or constitutional law. Like it or not, the common law is ubiquitous, and no lawyer or judge who deals with complex statutory and constitutional matters can afford not to master its principles.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The Mistress of Deception

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

The self-inflicted wounds of Hillary Rodham Clinton just keep manifesting themselves. She has two serious issues that have arisen in the past week; one is political and the other is legal. Both have deception at their root.

Her political problem is one of credibility. We know from her emails that she informed her daughter Chelsea and the then-prime minister of Egypt within 12 hours of the murder of the U.S. ambassador to Libya, J. Christopher Stevens, that he had been killed in Benghazi by al-Qaida. We know from the public record that the Obama administration’s narrative blamed the killings of the ambassador and his guards on an anonymous crowd’s spontaneous reaction to an anti-Muhammad video.

Over this past weekend we learned that her own embassy staff in Tripoli told her senior staff in Washington the day after the killings that the video was not an issue, and very few Libyans had seen it. We also know from her emails that the CIA informed her within 24 hours of the ambassador’s murder that it had been planned by al-Qaida 12 days before the actual killings.

Nevertheless, she persisted in blaming the video. When she received the bodies of Ambassador Stevens and his three bodyguards at Andrews Air Force base three days after their murders, she told the media and the families of the deceased assembled there that the four Americans had been killed by a spontaneous mob reacting to a cheap 15-minute anti-Muhammad video.

Clinton’s sordid behavior throughout this unhappy affair reveals a cavalier attitude about the truth and a ready willingness to deceive the public for short-term political gain. This might not harm her political aspirations with her base in the Democratic Party; but it will be a serious political problem for her with independent voters, without whose support she simply cannot be elected.

Yet, her name might not appear on any ballot in 2016.

That’s because, each time she addresses these issues -- her involvement in Benghazi and her emails -- her legal problems get worse. We already know that the FBI has been investigating her for espionage (the failure to secure state secrets), destruction of government property and obstruction of justice (wiping her computer server clean of governmental emails that were and are the property of the federal government), and perjury (lying to a federal judge about whether she returned all governmental emails to the State Department).

Now, she has added new potential perjury and misleading Congress issues because of her deceptive testimony to the House Benghazi committee. In 2011, when President Obama persuaded NATO to enact and enforce a no-fly zone over Libya, he sent American intelligence agents on the ground. Since they were not military and were not shooting at Libyan government forces, he could plausibly argue that he had not put “boots” on the ground. Clinton, however, decided that she could accelerate the departure of the Libyan strongman, Col. Moammar Gadhafi, by arming some of the Libyan rebel groups that were attempting to oppose him and thus helping them to shoot at government forces.

So, in violation of federal law and the U.N. arms embargo on Libya she authorized the shipment of American arms to Qatar, knowing they’d be passed off to Libyan rebels, some of whom were al-Qaida, a few of whom killed Ambassador Stevens using American-made weapons. When asked about this, she said she knew nothing of it. The emails underlying this are in the public domain. Clinton not only knew of the arms-to-Libyan-rebels deal, she authored and authorized it. She lied about this under oath.

After surveying the damage done to his regime and his family by NATO bombings, Col. Kaddafi made known his wish to negotiate a peaceful departure from Libya. When his wish was presented to Clinton, a source in the room with Clinton has revealed that she silently made the “off with his head” hand motion by moving her hand quickly across her neck. She could do that because she knew the rebels were well equipped with American arms with which to kill him. She didn’t care that many of the rebels were al-Qaida or that arming them was a felony. She lied about this under oath.

My Fox News colleagues Catherine Herridge and Pamela Browne have scrutinized Clinton’s testimony with respect to her friend and adviser Sidney Blumenthal. Recall that President Obama vetoed Clinton’s wish to hire him as her State Department senior adviser. So she had the Clinton Foundation pay him a greater salary than the State Department would have, and he became her silent de facto advisor.

They emailed each other hundreds of times during her tenure. He provided intelligence to her, which he obtained from a security company on the ground in Libya in which he had a financial interest. He advised her on how to present herself to the media. He even advocated the parameters of the Libyan no-fly zone and she acted upon his recommendations. Yet she told the committee he was “just a friend.” She was highly deceptive and criminally misleading about this under oath.

It is difficult to believe that the federal prosecutors and FBI agents investigating Clinton will not recommend that she be indicted. Inexplicably, she seems to have forgotten that they were monitoring what she said under oath to the Benghazi committee. By lying under oath, and by misleading Congress, she gave that team additional areas to investigate and on which to recommend indictments.

When those recommendations are made known, no ballot will bear her name.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Abortion and the Supreme Court

Richard Epstein*

Richard Epstein

Richard Epstein

The Supreme Court will soon decide whether to review two cases, both from the Fifth Circuit, that reach diametrically opposed conclusions about abortion. In Jackson Women’s Health Organization v. Currier, a panel of Fifth Circuit judges stopped Mississippi from enforcing a law that required all physicians performing abortions to have admitting privileges at a local hospital. In Whole Woman’s Health v. Cole, a different panel of Fifth Circuit judges refused to stop the enforcement of two key abortion restrictions in Texas law H.B.2. The first requires that the physician performing the abortion has admitting privileges to a hospital located within 30 miles of the place where the abortion was to be performed. The second provision requires that all abortion clinics comply with the applicable standards for ambulatory surgical centers.

The Mississippi legislation would have shut down the only abortion clinic in the state. The Texas legislation would shut down about three-fourths of the 40 abortion clinics within the state. The two cases are in obvious tension with each other.

The Supreme Court would do well to hear both cases, and to affirm the Mississippi decision in JWHO and overturn the Texas decision in WWO, so that all of the restrictions are struck down. That is evidently the position of those who support Roe v. Wade, which I criticized strongly in 1973, and about which I retain serious reservations today. In the current disputes, however, my qualms with Roe are water under the bridge. The only issue presented in these two new cases is whether either the Mississippi or Texas restrictions comport with the current legal test for examining statutory limitations as set out in the much mooted 1992 Supreme Court decision of Planned Parenthood v. Casey, whose basic rule reflects the deep ambivalence about the constitutional status of abortion. Casey provides that the regulation of a pre-viable abortion is constitutional if the law satisfies two conditions:

 (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.

It takes little imagination to see that this formulation is just asking for trouble. The first prong does not address the difficulties in having abortion rights turn on viability. Nor when it does so can it make up its mind whether “purpose or effect” matters, or both. Nor does it give any clear guidance as to how purpose should be decided when restrictions on abortion, such as the two laws raised here, are passed in the name of safety.

The second requirement tries to measure the fit between the means chosen and the purported end, so that “only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”

As is routinely the case with constitutional law, the outcome of the analysis under Casey will depend critically on the level of scrutiny that the court applies to the proposed legislation. Indeed, it was on just this question that JWHO and WWO parted company. In JWHO, the court took a close look at the potential impact of the regulation on the practices in question and found that the admitting privileges requirement did little to advance the safety of the procedures and much to shut down the availability of abortion care. The court was quite pointed that Mississippi could not deny the undue burden of its restrictions by showing that women could receive abortions from out-of-state providers, any of whom might change their own rules. They had to make sure that local clinics were available.

WWO took a very different approach. It first held that it was not the duty of the Court to “second guess legislative fact finding,” because “the rational basis test seeks only to determine whether any conceivable rationale exists for an enactment.” At this point the actual size of the burden no longer matters. Under this standard, the state has wide discretion to decide what safety standards are necessary to guarantee that women getting abortions receive the highest standard of health care, wholly without regard for how much they were at risk of adverse health consequences under the prior legal regime.

And it is now permissible to note that the out-of-state alternatives available to women (no matter what their safety levels) insulate the law from attack. The WWO’s blistering petition for certiorari details the evidence that the District Court assembled showing that the Texas restrictions were far more likely to increase the risk of abortions notwithstanding the willingness of the Fifth Circuit to take at face value the claim that the “State truly intends that women only receive an abortion in facilities that can provide the highest quality of care and safety—the stated legitimate purpose of H.B.2.”

As a matter of simple constitutional interpretation, the rational basis test should not be allowed to eviscerate the painful compromises wrought in Casey. The commonly used test gives undue credit to legislative wisdom on this highly charged political issue. Indeed, the weaknesses of this lax standard of constitutional review are not confined to the abortion cases, but are universal in any case that applies this highly deferential standard. The term “conceivable” appears in no constitutional text anywhere, but too often is the death knell to any and all constitutional challenges.

Nonetheless, that word was invoked with telling effect in the 1984 decision in Hawaii Housing Authority v. Midkiff, as the Supreme Court held that “where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.” The upshot of that opinion was to uphold a transparent scheme whereby the lets tenants take their landlord’s interest in property by putting in advance into public escrow the dollars necessary to pay for the transferred property. That outright transfer was now magically justified as a way to combat the supposed “economic evils of a land oligopoly” which was in reality no economic oligopoly at all.

The Court’s deferential standard of review approach used in Midkiff was reflected in its evaluation of a trade secret case of Ruckelshaus v. Monsanto Codecided that same year. At first look, Ruckelshaus seems to have nothing to do with WWO because it only asked whether the United States could publicly disclose trade secret information about a pesticide that the company owned, when the owner supplied the information for the government’s evaluation of the product’s health and safety risks. Justice Harry Blackmun’s incoherent argument anticipated the Fifth Circuit’s argument in WWO, when he foolishly wrote that “Monsanto could decide to forgo registration in the United States and sell a pesticide only in foreign markets”—just as women could travel outside Texas to get an abortion.

Blackmun’s argument in Ruckelshaus was that the advance notice of the regulation left Monsanto choices for how to minimize its risk. True enough, but the residual risk is all too great. Quite simply, no firm is entitled to ask for state aid to force its competitor to divulge its secrets. The United States has a legitimate interest in making sure that products dangerous to health and safety do not reach the market, but it has no legitimate interest in upsetting the sound competitive balance that existed prior to the regulation. It is therefore not proper for the government to give Monsanto the unduly restrictive choice between registering with full release of its trade secrets or foregoing the U.S. market.

The basic point easily generalizes. It is always wholly improper for the government to defend its forced removal of choice A by pointing out that a private party may still choose between B and C. This position applies not only to cases involving economic liberties, but also to social issues of deep concern to the feminist and liberal groups rightly condemning WWO.

The point arises most clearly in connection with two sets of cases that arise under the First Amendment’s protection of the free exercise of religion, which is now under attack. Unlike the dubious constitutional pedigree of the right to an abortion, the free exercise clause gives explicit protection to religious liberty, subject only to the restraints that are properly imposed on all other forms of liberty, such as the use of force and fraud against outsiders. It therefore should be clear that neither the federal nor the state government should be allowed to impose an undue burden on religious freedoms

Most feminists and liberals are united in their deep hostility to the recent Supreme Court decision in Burwell v. Hobby Lobby, in which a bitterly divided court struck down the HHS mandate that would have required “closely held corporations [to] provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies' owners.” Under the rational basis test adopted in WWO it is all too easy to give these owners the choice of going out of business, or of denying their employees all forms of health coverage, if they decide not to honor the mandate. After all, reproductive freedom is important to women’s participation in economic markets. But so long as alternative sources of contraception are available in competitive markets, a firm shouldn't be forced out of business for exercising its own religious beliefs. Rational basis is as inappropriate here as in WWO.

The same analysis applies to the aggressive efforts of various state civil rights commissions to subject small photographers and bakers to the hard choice between serving same-sex couples in ways inconsistent with their religious beliefs or going out of business. The undue burden of analysis that should have been applied in WWO works equally well here.

There is a constant temptation on the part of judges and scholars to avoid this conclusion by splitting the constitutional universe between those individual rights that merit serious protection and those that do not. One famous way of framing that distinction is to say that the higher protection is given to “discrete and insular minorities” who are unable to protect themselves in the political process. However, fundamentalist Christian groups surely are unable to protect themselves in states that have adopted strong civil rights laws. Nonetheless, the application of this test inspires people to do rhetorical handstands to announce themselves as politically vulnerable in order to gain an additional leg up in contentious constitutional adjudications.

The correct approach is to scrap any rational basis test that allows state legislatures to paper over their improper motivation with high-sounding statements of lofty legislative purposes. The need to increase judicial scrutiny when any test involving undue burdens is implicated is not confined to the abortion cases, but runs the full length of constitutional law. The Supreme Court should stop the charade in WWO, and do so in an opinion that rejects the rational basis test across the board.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The Midwife to Chaos and Her Perjury

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

The New York Times’ Maureen Dowd captured the moment last weekend when she referred to former Secretary of State Hillary Clinton as “the midwife to chaos” in Libya. Dowd apparently came to that conclusion after watching Clinton bobbing and weaving and admitting and denying as she was confronted with the partial record of her failures and obfuscations as secretary of state, particularly with respect to Libya.

The public record is fairly well-known. In March 2011, President Barack Obama declared war on Libya. He did this at the urging of Clinton, who wanted to overthrow Libyan strongman Col. Moammar Gadhafi so she could boast of having brought “democracy” to the region.

She and Obama conspired to do this even though former President George W. Bush and former British Prime Minister Tony Blair had publicly praised Gadhafi as an ally in the war against terrorist groups and even though the U.S. was giving the Gadhafi government more than $100 million a year in foreign aid.

Obama did his best to avoid constitutional norms. He deployed American intelligence agents on the ground, not troops, so he could plausibly deny he had put “boots” on the ground. He did not seek an American national consensus for war because Libya presented no threat whatsoever to the U.S. He did not obtain a congressional declaration of war as the Constitution requires because he couldn’t get one. And he did not seek United Nations permission, which is required to attack a fellow U.N. member.

He did obtain a U.N. embargo of the shipment of weapons into Libya, and he secured a NATO-enforced no-fly zone over portions of Libya. In order to enforce the no-fly zone, NATO sent jet fighters over the skies of Libya. The jets were guided and directed by American intelligence agents on the ground to bomb Libyan planes on the ground, which had been paid for by American taxpayers.

To pursue her goal of a “democratic” government there, Clinton, along with Obama and a dozen or so members of Congress from both houses and both political parties, decided she should break the law by permitting U.S. arms dealers to violate the U.N. arms embargo and arm Libyan rebels whom she hoped would one day run the new government. So she exercised her authority as secretary of state to authorize the shipment of American-made arms to Qatar, a country beholden to the Muslim Brotherhood and friendly to the Libyan rebels and a country the U.S. had no business arming -- unless the purpose of doing so was for the arms to be transferred to the rebels.

Once this plot was hatched, Clinton and her fellow conspirators realized that some of these rebel groups were manned by al-Qaida operatives; and selling or providing arms to them is a felony -- hence the reason for months' worth of missing and destroyed Clinton emails. How could someone running for president possibly justify providing material assistance to terrorist organizations in the present international climate?

Flash-forward to Clinton’s public testimony before the House Benghazi Committee last week. Clinton had three audiences to address. Her immediate audience was the committee, whose members generally did not know how to ask questions of a witness trying to hide the truth. Her second audience was the American people, who will recall little more than 15-second sound bites and general impressions of her testimony. Her third (unseen) audience consisted of the FBI agents and federal prosecutors who are investigating her.

That audience was looking for perjury, misleading statements and what federal law calls “bad acts.” Perjury is lying under oath. Misleading Congress is criminal and consists of testimony that employs deceptive language so as to create an untruthful impression. Bad acts constitute repeated behavior demonstrating moral turpitude -- usually a pattern of deception.

The FBI agents surely heard Clinton mislead Congress when she answered a hard question about arms going to rebels by saying “I think the answer is no” and again when she answered a question about arming private militias by saying it may have been considered but wasn't “seriously” considered. And they heard her directly commit perjury when she was asked whether she knew about our country's supplying arms to Libyan rebels directly or indirectly and she answered, “No.”

How could she answer "no"? She not only knew about the sending of arms to rebels but also personally authored and authorized it. How could she answer "no"? The FBI and CIA advised her -- in documents that are now public -- that U.S. arms were making their way to known al-Qaida operatives. How could she answer "no"? This reached a crisis point when some of those operatives used their American-made weapons to murder U.S. Ambassador Christopher Stevens at the U.S. Consulate in Benghazi.

Then the cover-up began. At the same time Clinton was telling her daughter and the Egyptian prime minister within hours of Stevens’ death that al-Qaida killed him and after the CIA told her the plot to kill Stevens had been hatched 12 days earlier, she told the public that Stevens was killed by spontaneous demonstrators angered about a cheap anti-Islam video, the producer of which she vowed to “get.” She later angrily dismissed questions over this cover-up by arguing, “What difference, at this point, does it make?”

The difference it makes goes to the heart of the American electoral process. Every four years, we entrust awesome power to a person who swears to protect the Constitution. How could we give that power to a consistent public liar who, for personal political gain, midwifed terror and chaos in a country that was our ally and whose words and behavior have continually demonstrated that she is utterly unworthy of belief?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.