Allan C. Brownfeld
Allan C. Brownfeld is the author of five books, the latest of which is The Revolution Lobby (Council for Inter-American Security). He has been a staff aide to a U.S. Vice President, Members of Congress, and the U.S. Senate Internal Security Subcommittee. He is associate editor of The Lincoln Review, and a contributing editor to Human Events, The St. Croix Review, and The Washington Report on Middle East Affairs.
How America Goes to War: Rediscovering the Dangers of an All-Powerful Executive
In recent days, our country has been embroiled in three wars - Iraq, Afghanistan, and Libya.
Article I, Section 8, of the U.S. Constitution clearly gives Congress - not the executive - the power to declare war. Since the Constitution was signed in 1787, Congress has declared war five times: the War of 1812, the Mexican War, the Spanish-American War, and World Wars I and II. Yet, since 1787, the U.S. has been involved in numerous military conflicts without a declaration.
In the case of the Korean War, President Truman sent some 1.8 million soldiers, sailors, and airmen over a period of just three years and 36,000 lost their lives - but never sought or resolved a congressional declaration of war. Congress has not declared war since World War II, despite dozens of conflicts since then.
In 1973, Congress passed the War Powers Resolution, which was meant to counteract what Presidents Nixon and Johnson had done in Vietnam. Congress felt deceived, particularly since it was later discovered that the Gulf of Tonkin incident that precipitated a larger war had never, in fact, taken place.
The law, however, hardly reasserts Congress' very clear constitutional power to declare war. Instead, it simply asks for an authorization letter and then gives the President a three-month deadline. It requires the President to withdraw U.S. forces from armed hostilities if Congress has not given its approval within 60 days.
Even fulfilling the requirements of the War Powers Resolution appears to be too much for the Obama Administration. In fact, the President rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without congressional authorization.
Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department's Office of Legal Counsel, told the White House that they believed that the U.S. military's activities in the NATO-led air war amounted to "hostilities" under the War Powers Resolution, that would require Mr. Obama to terminate or scale back the mission after May 20.
The President, however, adopted the legal analysis of the White House counsel, Robert Bauer, and several others who argued that the military's activities in Libya fell short of "hostilities." Under that view, Obama needed no permission from Congress to continue the mission unchanged.
Late in June, the House rejected a bill to authorize the U.S. military operations in Libya. The resolution to support the mission failed 295 to 123, with 70 Democrats joining Republicans in a rebuff to the President. Still, the House also defeated a measure that would have limited financing to support these efforts.
Rep. Jason Chaffetz (R-UT) said:
It didn't go far enough. Under that resolution, the president is still going to be engaged in the war. We've been inept and irrelevant on the war actions. We have not lived up to our constitutional duty.
In Libya, the goal of our mission appears to have changed from month to month. In March, the President said that U.S. intervention would be confined to implementing a no-fly zone. He declared that, "Broadening our mission to include regime change would be a mistake." By May, the mission was to make Libyans "finally free of 40 years of tyranny." By June, after more than 10,000 sorties, including those by attack helicopters, the strategy seems to boil down to an effort to eliminate Gaddafi himself.
While some have charged that opponents of the conflict in Libya are "isolationists," conservative columnist George Will notes that:
Disgust with this debacle has been darkly described as a recrudescence of "isolationism" as though people opposing this absurdly disproportionate and patently illegal war are akin to those who, after 1938, opposed resisting Germany and Japan. Such slovenly thinking is a byproduct of shabby behavior.
While men and women of good will may disagree about the merits of the U.S. intervention in Libya - or Afghanistan and Iraq - the larger question is whether one man, the President, can take the country to war without a congressional declaration, as clearly called for in the Constitution.
What we are dealing with is the dangerous growth of executive power. During the years of the New Deal, when the power of president was dramatically expanded, Republicans, who were in the opposition, objected to the growth of such power as a threat to freedom. Later, when Republicans held the power of the Presidency, they, too, expanded executive power, and Democrats, now in opposition, objected. This has been characterized as argument from circumstance, not principle. If you hold power, you expand it. No one in power has an incentive to cede back the power that has been assumed.
Even at the beginning of the Republic perceptive men such as John Calhoun predicted that government would inevitably grow, and those in power would advocate a "broad" use of power, and those out of power would always argue for a "narrow" use of power, and that no one would ever turn back government authority which has once been embraced.
Calhoun was all too prophetic when he wrote the following in "A Disquisition On Government":
. . . . Being the party in possession of government, they will . . . be in favor of the powers granted by the Constitution and opposed to the restrictions intended to limit them. As the major and dominant parties, they will have no need of these restrictions for their protection. . . . The minor or weaker party, on the contrary, would take the opposite direction and regard them as essential to their protection against the dominant party. . . . But where there are no means by which they could compel the major party to observe the restrictions, the only resort left then would be a strict construction of the Constitution. . . . To this the major party would oppose a liberal construction . . . one which would give to the words of the grant the broadest meaning of which they were susceptible.
Calhoun continued:
It would then be construction against construction - the one to contract and the other to enlarge the powers of the government to the utmost. But of what possible avail could the strict construction of the minor party be, against the liberal interpretation of the major party, when the one and the other be deprived of all means of enforcing its construction? In a contest so unequal, the result would not be doubtful. The party in favor of the restrictions would be overpowered. . . . The end of the contest would be the subversion of the Constitution. . . the restrictions would ultimately be annulled and the government be converted into one of unlimited powers.
Our history shows that this is true. Republicans opposed big government when Democrats were in power, but spoke of concepts such as "executive privilege" when their own party held positions of authority. The Democrats have done exactly the same thing. The growth of government power has been a steady process, regardless of who was in office.
Those who want to rein in government power, to return to the federal system set forth in our Constitution, with its clearly defined separation of powers and checks and balances, would do well to turn their attention to the question of who has the power to take America to war. The Constitution did not give one man that power, although events in Afghanistan, Iraq, and Libya show us that this seems no longer to be the case. Concern over developments in Libya are a healthy sign that more and more Americans seem to be paying attention to the question of the war-making power.
Dramatic Decline in Public Education Leads to Renewed Push for Voucher Programs
Mounting evidence of a dramatic decline in American public education is leading to a renewed push for voucher programs across the country.
Details of decline are all around us. Some of the New York City high schools that received the highest grades under the Education Department's school assessment system are graduating students who are not ready for college. Of the 70 high schools that earned an "A" on the most recent city progress report and have at least one third of graduates attending college at City University of New York (CUNY), 46 posted remediation rates above 50 percent, according to reports sent to the city's high schools. Remediation rates - the percentage of students who fail a CUNY entrance exam and require remediation classes - rose to 49 percent in 2010 from 45 percent in 2007.
About three quarters of the 17,500 freshmen at CUNY community colleges this year have needed remedial instruction in reading, writing, or math, and nearly a quarter of the freshmen have required such instruction in all three subjects.
Fewer than half of all New York state students who graduated from high school in 2009 were prepared for college or careers, as measured by state Regents tests in English and math. In New York City, that number was 23 percent.
At LaGuardia Community College in Queens, where 40 percent of the math classes are remedial, faculty member Jerry G. Ianni says:
Most students have serious challenges remembering the basic rules of arithmetic. The course is really a refresher, but they aren't ready for a refresher. They need to learn how to learn.
About 65 percent of all community college students nationwide need some form of remedial education, with students' shortcomings in math outnumbering those in reading two to one, said Thomas R. Bailey, director of the Community College Research Center at Teachers University at Columbia University.
The New York State Department of Education released new data in June showing that only 37 percent of students who entered high school in 2006 left four years later adequately prepared for college, with even smaller percentages of minority graduates and those in the largest cities meeting that standard. In New York City, 21 percent who started high school in 2006 graduated last year with high enough scores on state math and English tests to be deemed ready for higher education, or well-paying careers. In Rochester County, it was 6 percent, in Yonkers, 14.5 percent.
Nearly one fourth of the students who try to join the U.S. Army fail its entrance exam, painting a grim picture of an educational system that produces graduates who can't answer basic math, sciences, and reading questions. The report by the Education Trust bolsters a growing worry among military and education leaders that the pool of young people qualified for military service will grow too small.
"Too many of our high school students are not graduating ready to begin college or a career - and many are not eligible to serve in our armed forces," Education Secretary Arne Duncan said. "I am deeply troubled by the national security burden created by America's underperforming education system."
The report found that 23 percent of recent high school graduates don't get the minimum score needed on the enlistment test to join any branch of the military. Questions are often basic, such as: "If 2 plus X equals 4, what is the value of X?"
The military exam results are also of concern because the test is given to a limited pool of people. Pentagon data shows that 75 percent of those aged 17 to 24 don't even qualify to take the test because they are physically unfit, have a criminal record, or don't graduate from high school.
"It's surprising and shocking that we still have students who are walking across the stage who really don't deserve to and haven't earned that right," said Tim Callahan with the Professional Association of Georgia Educators, a group that represents more than 80,000 educators.
The study shows wide disparities in scores among white and minority students, similar to racial gaps on other standardized tests. Nearly 40 percent of black students and 30 percent of Hispanics don't pass, compared with 16 percent of whites. The average score for blacks is 39 and for Hispanics is 44, compared to whites' average score of 55.
The decline in American public education has led to a renewed campaign for a voucher system which would give middle-class and poor parents the same freedom of choice of where to send their children to school that only well-to-do parents now have.
Early in May, Indiana Governor Mitch Daniels signed what is probably the broadest voucher law in the country. A few days later, Oklahoma approved the tax credits for those who contribute to a privately funded private school "opportunity scholarship" program. In New Jersey, in May, a voucher bill was approved by a Senate committee with bipartisan support. In Washington, D.C., the voucher program, which was killed by the Democratic majorities in the last Congress, is all but certain to be restored. In Wisconsin, Governor Scott Walker is pushing hard to broaden Milwaukee's voucher program to other cities and many more children.
According to the Foundation for Educational Choice, a pro-voucher group that lists Milton Friedman as its patriarch, more than 52 bills have emerged this year, some passed, some still pending, in 36 states - among them Arizona, Florida, Ohio, Oregon, and Pennsylvania - providing funding for vouchers, tax credits, or other tax-funded benefits for private education. "No year in recent memory," said foundation president Robert Enlow, has provided better opportunities for the cause."
Writing in The Nation, Peter Schrag, a liberal, declares that, "Milton Friedman's vision for school choice is becoming a reality around the country."
Early in April, a divided Supreme Court further heartened the movement by upholding Arizona's law providing tax credits for contributions to "school tuition organizations" - scholarship funds for private and religious schools.
Many forget that vouchers have never been an exclusively conservative issue. In the 1960s, liberal school reformers like Paul Goodman and John Holt, pushing for "free schools," the "open school," and other escapes from what they regarded as "over-bureaucratized, lockstep" school structures, embraced vouchers as a way of getting there.
Later, liberals like Berkeley law professor John Coons, who helped launch lawsuits seeking equity in school spending, became strong voucher advocates as a way to allow poor and minority children some way out of the ghetto schools.
Clearly, the time seems to have come for a voucher system - and genuinely free choice for parents with regard to where to send their children to school.
The Supreme Court's Strange Embrace of Violent Video Games for Children
The U.S. Supreme Court, in a 7-2 ruling late in June, declared, in a decision written by Justice Antonin Scalia, that a California law that bars selling extremely violent videos to children violated children's First Amendment rights to buy interactive games in which they vicariously steal, rape, torture, and decapitate people to score points.
Justice Scalia said that the state had no compelling interest in limiting the sale of such violent videos. He made light of studies showing that violent videos correlate to aggressive behavior in some children and denied that reading about violence is different from participating in full-color, sound-filled interactive depiction in which the children themselves commit the violence.
Justices Stephen G. Breyer, a liberal, and Clarence Thomas, a conservative, filed the only dissents, arguing that the law was intended to empower parents, not erode the First Amendment. The law targets adults who sell this material to children. The goal, clearly, was not to disempower children but to curb predators.
In a concurring opinion, Justice Samuel Alito and Chief Justice John G. Roberts, argued that the law should be struck down because of vagueness, but added that:
The Court is far too quick to dismiss the possibility that the experience of playing video games (and the effects on minors of playing violent video games) may be very different from anything that we have seen before. . . . In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement . . . dismembered, decapitated, disemboweled, set on fire and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.
In his dissent, Justice Thomas declared that:
The Farmers could not possibly have understood the freedom of speech to include a qualified right to speak to minors. Specifically, I am sure that the founding generation would not have understood "the freedom of speech" to include a right to speak to children without going through their parents.
In his dissent, Justice Breyer quoted from a 1944 case, where the court recognized that the "power of the state to control the conduct of children reaches beyond the scope of its authority over adults."
Most adult Americans probably have no idea of the nature of the video games children are playing - and which the Supreme Court has now embraced as free speech. One such graphic game involves the player torturing a girl as she pleads for mercy, urinating on her, dousing her with gasoline and setting her on fire.
Among the most popular games is "Bloody Day," described this way:
Back alley butchering has never been so much fun. It's like having your own barrel with moderately slow moving fish. How many kills can you rack up?
Another is "Boneless Girl," which is presented in these terms:
Poke and pull this scantily clad babe all over bubble-land. You'll be amazed by the small spaces she can fit through, and throwing her across the screen never gets old.
Sadly, notes Joel Bakan, author of the forthcoming book Childhood Under Siege: How Big Business Targets Children, children:
. . . don't need to rent or buy casual games. They are available on computers, tablets, and cellphones - free. (California's law wouldn't have applied to these games, even if it had survived the court's scrutiny, because they are not rented or sold.) Many popular casual games contain as much violence as notorious video games like Postal 2 and Grand Theft Auto, if not more. But they tend to exist under the radar; they're part of an obscure world into which teenagers and children escape and about which parents are often in the dark. (I learned about them only after I asked my 12-year-old son what he liked to do online.)
Bakan reports that,
Nickelodeon's www.addictinggames.com, a premier casual game site, calls itself "the largest source of the best free online games." It attracts 20 million unique monthly users, mostly children and teens. . . . Like other leading casual game sites, www.addictinggames.com makes money by running advertisements. According to Viacom, the site's corporate owner, the aptly named site allows "junkies" to "gorge themselves" and to "fuel their addiction." Viacom's interest in promoting addiction helps explain why Nickelodeon, the award-winning children's network, might want to push brutal, violent entertainment. Violence sells. And it continues to sell to children, teens, and tweens "hooked" at an early age and hungry for more. . . . The games' use of graphic violence to generate profit is strategic and calculated.
In the 1949 case of Terminiello v. Chicago, Justice Robert H. Jackson, in a famous dissent, declared that, "The Constitution is not a suicide pact." He wrote that,
The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
Discussing the California video game case, Brown v. Entertainment Merchants Association, Robert Knight, senior fellow for the American Civil Rights Union, notes that:
The Constitution is the greatest political document in history and the guarantor of our God-given rights. The First Amendment has proved foundational to maintaining all of our freedoms. Exceptions should be few and necessary. But in the hands of America's ruling lawmakers and jurists, the First Amendment is sometimes misapplied as a free pass for dysfunction and decadence.
It is apparently perfectly within the law for movie theaters to refuse to sell tickets to minors to see R- or X-rated movies. What is the difference when it comes to violent video games? To protect children from material of this kind has always been viewed as a sign of civilization. The evidence that watching violent material has a serious impact upon young people is widespread. Consider the role such violent videos played in the lives of the perpetrators of the massacre at Columbine.
Why would the Supreme Court turn its back on such evidence - and normal common sense - to issue a ruling such as the one it did? This is difficult to understand, and we are fortunate that Justices Breyer and Thomas dissented. From their dissents, hopefully, we can revisit this decision in the future. *
