Churchill's Peace - OpEd

As all wars do, Iraq tests the resolve and staying power of the combatants. Long wars prove particularly difficult for democracies. Because the United States is positioned as the leader of the free world, our engagement in the world war against terror has been particularly troublesome. Will power is never monolithic in a democracy. Will power pools around the various outspoken opinions that thrive in our republic, and these differing wills reflects world opinion. Such varying pools of sentiment expand and shrink in concert with the war’s progression.

The Iraq war presents some particular challenges because its burden has not been evenly shared, thus creating the aura of falsity in the United States. Our expanding economy and our separation from the bloodshed abroad make the growing casualty list seem unreal to our disconnected population. Additionally, the relative freedom from incessant combat everyplace but Iraq confuses the public into thinking Iraq is the focus of the war—when in fact we face an implacable foe with a worldwide intention to cause mayhem.

Some time ago I wrote that we would reach a time such as this which would sorely test our staying power. While continuing to support seeing the mission through to its end, I question what an acceptable definition of success is. The creation of a democracy that models ours is an unrealistic goal unworthy of prolonged loss of American blood.

Pursuing freedom does not mean requiring the adoption of our political model. The President has stated our policy to assist all those thirsting to be free; he sees a peaceful world assured by democracy. I doubt this possibility. The adoption of that aggressive policy for the United States’ goal puts us on a collision course with many countries on whom we must rely in order to win our present battle. We would be guilty of great hubris to insist that “victory” result in a democracy mirroring ours. A democracy will reflect the best and worst of the people it represents. Just as that is so for us, it is true in the Middle East. The result in the Middle East is likely to be far different from here. Without a Pax-Americana, the region is not likely to be peaceful for years to come.

In 1921 Winston Churchill, while speaking about the Cairo Conference, said, “I feel some misgivings about the political consequences to myself of taking on my shoulders the burden of the Mesopotamia entanglement.” The addition of Israel into a thousand year old tribal and religious boiling cauldron during the intervening years has done nothing to improve matters. Churchill saw an ungovernable morass and it hasn’t improved.

Bismarck cautioned that, “Nations do not have friends. They only have interests.” We would do well to remember that. We rest on a slippery slope if we insist on defining a Middle East that looks like us. In 1921 Mesopotamia, responding in part to Woodrow Wilson’s ringing words favoring national self determination, rampaged after perceiving that France and Britain betrayed them in the Sykes-Picot agreement that carved up the region. The Cairo conference was called to see if a more palatable result could be found that would limit the need for occupying troops and all the consequential expense and exposure to entanglement in Mideast intrigue that would necessarily ensue.

This resulted in the acceptance of borders that reflected tribal concentrations and traditional trading routes. Occupying forces would be kept out of the way in a few selected spots and local administration would be encouraged. The political turmoil that still exists is a reflection of the continuing aspiration for nationhood by those persons long denied a place they could truly call their own. The creation of Israel, oil politics, and the religious differences that I previously have mentioned all have caused displacement and tension.

While waiting for Secretary Rice to appear before his panel on February 16, Chairman Henry Hyde of the House International Relations Committee—who strongly supports President Bush’s strategy of promoting universal freedom—questioned whether the United States can produce worldwide peace and stability by financing and encouraging democracy: “The magic formula of democracy alone” will not work. It must be supported by “unbounded power” and “an open ended commitment of time and resources which we cannot and will not do.” The administration seems to be putting its hope in Sunni and Shiva clerics forging an agreement that would allow the Iraqi state to carry forward a new government. Given the historic nature of their feud it remains a slim hope that they will be successful in stifling the already existing internecine tensions.

Like the administration, I hope that a national unity government will take office in Baghdad before the summer. At the end of the day, we may, like Churchill before us, have to accept this as the best achievable goal, adopt a neutralization posture, and rethink our long term strategy against the religious terrorists that threaten us as well as the rest of the modern world.

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Robert E. Freer, Jr is a Visiting Professor and the John S. Grinalds Leader in Residence at The Citadel and a regular contributor to the Mercury.

Charleston Mercury March 16, 2006. Page 16.

Regaining Its Balance: A Supreme Court Voyage - OpEd

The judicial Power of The United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.

Today the majesty of our Supreme Court is fixed within the fabric of our nation. It works as a bulwark, with the executive and legislative branches, against the daily passions which would stampede us into irretrievable harm. It has not always been thus. During the administrations of Washington and Adams, the Court’s relationship to the other two branches was ill defined. Only good Federalists were selected for appointment, and the cases that appeared before it did not call for the Court to interpret its relationship and the rule of law with the other two branches. In 1801 that changed. The newly elected President and Republican majorities in Congress moved promptly to rescind legislation creating a number of new judgeships that President Adams filled in the waning days of his administration. In a few cases appointments duly made had not been delivered prior to President Jefferson taking office. One such appointment, William Marbury’s, steered the Court onto the course it now comfortably assumes as the arbiter of the Constitution. This case first tested the limits of both executive power and Congressional authority and, moreover, secured the Court as the arbitrator of Constitutional disputes.

To view William Marbury one wouldn’t think him a likely figure to test the basic bonds of a nation. Trained in finance, he developed a wealth of experience working for the state of Maryland. One history notes “He helped his friends, and they helped him,” but his timing was almost always bad. He sought influence in Annapolis just as Baltimore was replacing its commercial influence, and he later moved to Georgetown which by then had not only lost influence to Baltimore but been replaced as Washington’s port by Alexandria. However, Marbury did possess one superior trait that served him well wherever he resided: He had an impeccable reputation for honesty. “Hundreds of thousands of dollars passed through his hands in all of his offices of public trust, with little suggestion that he had diverted any money to his own pocket.” He was also a staunch Adams Federalist, and the departing administration, in one of its last acts, rewarded him by designating him Justice of the Peace for Georgetown. Though the appointment made it through the hoops of Senate consent and signature by the Outgoing Secretary of State, it was not delivered prior to the appointment of James Madison as Secretary of State in Thomas Jefferson’s administration. Madison refused to deliver it. It seemed Marbury would again suffer from his wretched timing. To make matters worse, the Secretary of State who signed his commission would as Chief Justice deny him the right to any relief for its non delivery—but we get ahead of ourselves.

Marbury, faced with Madison’s refusal to deliver his commission, filed under the Judiciary Act of 1789 in the Supreme Court for an order that would require its delivery. In the opinion of the Court on Marbury’s request, Chief Justice Marshall carefully set out the origins and limitations of Congressional power, and in measured prose, established the paramount power of the Constitution and The Court’s role as its interpreter—including the right to declare an act of Congress unconstitutional. As it pertained to William Marbury, Justice Marshall found that the Judiciary Act exceeded Congress’s Constitutional authority to hear a case such as Marbury’s as a court of first review. Original jurisdiction of the Supreme Court was restricted under the Constitution to “…Cases affecting Ambassadors, other public ministers and Consuls, and those in which a state shall be Party, in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction…” By resisting an expansive notion not found in the Constitution, by chiding a prior Congress (Federalist) for exceeding its authority and the executive branch for exceeding its authority in not carrying out its responsibilities under the law to deliver the appointment, Marshall established the authority of the Court but dodged a confrontation over the appointment by dismissing the case as improperly brought. Advanced under an unconstitutional statute, Marbury’s complaint should have not been set forth in The Supreme Court. It would be 54 years before the Court would again find a statute unconstitutional.

When reading the Opinion today, its wisdom and clarity of thought strikes us. Chief Justice Marshall assumes the Delphic robes of the ideal Justice in his retrained assertion of the Court’s jurisdiction. His appointer, John Adams, in what is oft sited still as the description of the ideal judge, called for… “Men of experience on the laws, of exemplary morals, invincible application, unruffled calmness, indefatigable application… [and] subservient to none.” As a nation we have just gone through the confirmation of the court’s 110^th judge, Associate Justice Samuel Alito, who is a man that would have drawn praise from John Adams and should draw praise from us as well.

Justice Alito has earned commendations from judges and members of the Bar deemed both philosophically liberal and conservative for his judicial rectitude, scholarship, and clarity of opinion. I predict that ten years from now neither the political right nor left will be able to rely on his making any decision other than that firmly founded in the law. His conservatism resides in the non-assertion of the Court’s concern for matters not squarely required to be decided in a given case. This conservatism properly preserves Congress’s lawmaking function, and that is what we must insist on in our judicial branch.

Should we depart from this norm, the judicial branch will cease being a balance for the other two and take on trappings of the legislature, thus ruining our Founders’ well thought plan and dooming us to a gradual forfeiture of our freedom as well.

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Professor Freer is a visiting professor and the John S Grinalds Leader in Residence at The Citadel. He is a regular contributor to The Mercury.

Charleston Mercury March 2, 2006. Page 16.