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Students Are Caught in the Crossfire of US History Wars (Washington Examiner) June 7, 2021

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Even as we draw down troops from lengthy wars in Afghanistan and Iraq, we are caught up in cyberwarfare, apparently with the Russians, everywhere from our meat processing plants to our oil pipelines and healthcare systems. In domestic policy, we are still fighting a war on poverty, declared by President Lyndon Johnson in 1964, not to mention wars on crime, drugs, terrorism, and, yes, even obesity and cancer, all declared by later presidents.

Now, our country is in a history war. It is a civil war, against one another, over some of the same issues on which the Union and the Confederacy battled to the death over 150 years ago. At one level, it is a battle of ideas — which ideas will be taught in classrooms and textbooks of America’s schools. Should we begin teaching that the founding of America dates not from the revolution in 1776 and the Constitution in 1787 but from the arrival of slaves in 1619, as the New York Times’s 1619 Project proposes? Must critical race theory, the idea that America has been and still is a racist nation, now be central to U.S. history (and even math) curricula?

At another level, this has become a war in state legislatures. Several states are considering and passing bills banning the teaching of the 1619 Project and of critical race theory in their schools. It looks like the old arcade game whack-a-mole as evil curricular ideas pop up and are slammed down one at a time in legislative warfare.

The history wars are also teaching students the wrong lessons. For one thing, the history warriors implicitly claim history is either black or white; it’s all one way or all the other. It isn’t enough for the 1619 Project to say that slavery prior to the establishment of the nation is important and should be studied. No, the 1619 Project, by its own terms, seeks to “reframe the country’s history by placing the consequences of slavery … at the very center of our national narrative.” It seeks not to add to 1776 and 1787 but to replace them with a new starting point in our nation’s history. The opponents are equally strident, claiming the project should not be taught at all.

Critical race theory is similarly all or nothing in its approach. It isn’t just that racism is a problem, but what must be taught is that the entire system is racist and that this affects everything. Black or white. All or nothing.

What students need is not more wars and attempts to indoctrinate them. They need a toolkit to understand history and reach their own conclusions. In that toolkit, they need a few shades of gray, not just black and white. They need to understand that there are both successes and failures in our history, that even heroes have their flaws. Also in their toolkit, they need eyeglasses to see the time they are studying, not just their 21st-century social justice lenses. They need to appreciate what the founders called “moderation,” the ability to see nuances and reason through them.

In the end, the history wars are not primarily about the students, as education should be. Rather, they are about adults carrying out political warfare on the battleground of their children’s education. Shame on them for making students the injured bystanders in their political wars.

To read the column at the Washington Examiner:



The Danger of Bringing Back Big Government (Washington Examiner) May 19, 2021

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In the debate between liberals and conservatives, the role of government is a favorite topic. After decades of growth in the size and role of the federal government, Ronald Reagan famously began his presidency in the 1980s by saying, “Government is not the solution to our problems; government is the problem.” Even Democrat Bill Clinton acknowledged in the 1990s that “the era of big government is over.”

Well, big government is back in the 2020s. President Joe Biden is proposing nearly $6 trillion in new government spending, doubling the entire federal budget for 2021. Biden told Congress and the nation last month, “We have to prove that government still works and can deliver for our people.” COVID-19 relief, infrastructure, education, child care, unemployment relief — seemingly nothing is beyond the scope of Biden’s federal government. Increased federal powers and spending from the coronavirus crisis are rolling forward into all aspects of life.

One way to measure the size of government, of course, is to look at federal spending, and here, Biden is on track to set new records. But the fact is that when Republicans were in power, they, too, frequently overspent as well. Even Ronald Reagan, who preached cutting government size and spending, was only able to slow the rate of increase. People are numb to the burgeoning size of the federal debt.

A better way to look at big government, especially in these times, is how much of our lives and activities it moves into and ultimately takes over. If people have come to accept the size of big government, it is the role of the federal government where we need to hold the line.Recommended Video

To put the matter sharply into focus, we have come to accept a government role in retirement (Social Security) and healthcare (Medicare, Medicaid, Obamacare). Now, Biden would add a major role in education, from child care and preschool to college, to the federal portfolio. Moreover, his broad ideas about infrastructure include everything from climate change to the internet, his beloved Amtrak, home caregiving, and even semiconductors. This is a massive expansion of the federal footprint.

Take education, for example, which has long been a state and local, not a federal, matter. President George W. Bush, with bipartisan leadership from Sen. Ted Kennedy, greatly expanded the federal role in K-12 education by the adoption of the No Child Left Behind law in 2002 and its regimen of federal testing and consequences. It is one of few cases in which a federal takeover of state powers was turned back: When No Child Left Behind was not renewed, it was replaced with the Every Student Succeeds Act in 2015.https://d9376e5f5b5d530c995789eb0fe5cf8b.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html

Now, Biden would expand the federal role in education again by spending huge sums of money to increase child care, preschool, and K-12 education. Biden would grow the Department of Education budget by an astonishing 41%. Forgiveness of student college debt, another huge policy change, is still on the table. As we should have learned from No Child Left Behind, all that extra federal spending in education will greatly increase Washington’s role in K-12 policies and programs.

Similarly, the infrastructure bill inserts Washington into all kinds of issues that have been the purview of either states, individuals, or markets. We would all expect infrastructure to include work on roads, bridges, and water systems, and the bill does. But do we really need the federal government guaranteeing “high speed broadband to all Americans”? Is home caregiving truly a part of the nation’s infrastructure, which requires spending and involvement by Washington? Aren’t idle buildings and electrifying vehicles questions for industry or urban areas, not our nation’s capital?

All this massive new federal spending comes at exactly the wrong time with inflation already on the rise. But the greater danger is moving the federal government into everything from home healthcare to electric vehicles and beyond. That is the kind of big government we need to turn back.

To read the column at the Washington Examiner:


Joe Biden and Tim Scott Encapsulate the Classical Right-Left Divide (Washington Examiner) May 3, 2021

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In their dueling speeches last week, President Joe Biden and Republican Sen. Tim Scott agreed on a few things while disagreeing on many. The headlines after Biden spoke to Congress, and Scott responded for Republicans, were mostly about expensive new government programs and racism.

Still, if you listened carefully, one of the most important debates between Biden and Scott, indeed between liberals and conservatives more broadly, is the question of how to create opportunity for people. Whether government creates opportunity, as Biden argues, or gets in the way of individual opportunity, as Scott maintains, is perhaps the fundamental political question of the day.

Biden said upfront that he was talking about “crisis and opportunity,” proposing all manner of government programs for families, jobs, infrastructure, healthcare, and education. All this will, Biden admitted, cost money. To pay the bill, he will raise taxes on the wealthy. After Ronald Reagan sought to reduce big government in the 1980s and Bill Clinton acknowledged, “the era of big government is over” in the 1990s, Biden has pronounced that big government is back. Using the crisis of the COVID pandemic to increase government power, he said we are turning “crisis into opportunity.”

It’s the classic debate between liberals and conservatives.

If you don’t know your American history — and polls and test results show you probably do not — this is the very debate that Franklin Roosevelt and Herbert Hoover had in the 1930s. Hoover, a mining engineer, had lived and worked abroad for much of his early career and, when he returned to America, he constantly preached “rugged individualism” accompanied by “equality of opportunity.” That, Hoover said, was the American system, and we ought not to give in to the various isms — socialism, fascism, communism — plaguing Europe.

Franklin Delano Roosevelt, by contrast, said in a 1932 campaign speech at the Commonwealth Club in San Francisco, “Equality of opportunity as we have known it no longer exists.” With the closing of the American frontier and the rise of industrialization, Roosevelt called for more government regulation: “The day of enlightened administration has come.”

Lyndon Johnson and Reagan encapsulated the further struggle of these competing ideologies.

Now, the debate continues. Does the federal government really know how to create more opportunity in the lives of individuals? Is that even its role? Do the Declaration of Independence and its announcement of the right to pursue happiness mean government defines happiness or individuals? Is equality of opportunity an aspiration, as Reagan and Scott have believed, or is it reducible to a set of government programs as Johnson and, apparently, Biden believe?

Beyond the partisan bickering in Washington, the question of how best to create opportunity is well worth debating.

To read the column at the Washington Examiner:


A Federal Judge Has Appointed Himself Czar of the Los Angeles Homelessness Crisis (Washington Examiner) April 28, 2021

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By all accounts, federal judge David O. Carter is a great guy with a passion for helping the homeless in Los Angeles. It would help if he were Bill Gates or Warren Buffet, able to fund the major philanthropic effort needed for the L.A. homeless. If he were mayor of L.A., or even an L.A. County supervisor, he could use the mantle of political leadership to tackle the problem.

But Carter is not any of those things. He is, rather, a federal judge. In a recent order, Carter commanded that $1 billion be set aside by the city of Los Angeles to house every homeless person on skid row by October 18 of this year. The city has 60 days to give the judge a plan on how this is to be done. Ironically, Mayor Eric Garcetti had announced what seemed like a staggering $1 billion budget for L.A.’s larger homeless crisis (not just skid row) the day before, and those plans are now cast into uncertainty by the sweeping order of a single federal judge.

When you hear the expression judicial activism or judicial overreach, you should now think of Judge Carter. Especially following the pandemic, homelessness has grown into a major national problem, with California leading the way. All kinds of policy players, the federal government, the state, the county, the city, regional nonprofit organizations, and foundations, have taken up the cause. And now an unelected judge enters the fray.

Mr. Big Stuff, who do you think you are, the old song rightly asks.

Courts were intended to be brakes, not engines of change. Alexander Hamilton wrote in Federalist No. 78 that the Judiciary, having neither the power of the purse nor the sword, would be the “least dangerous branch.” Courts are meant to resolve legal problems, not become the policymakers to oversee social change. They are to find the synthesis, not to stake out a thesis or antithesis. Carter finds authority to act because he believes the city has created the problem. Los Angeles, he says, has driven homeless people out of other parts of the city to skid row through its land use policies. Homelessness is far more complicated than land use, however. When you start with fabulous Southern California weather, add in immigration issues, and all the problems of urban areas, then quadruple it all with a pandemic, this is not simply a land use problem.

Beyond the question of who decides homelessness policy, the problems with Carter’s approach are legion. Although it is obvious in his 110-page decision that he has lost patience with Los Angeles, his timeline for action is way too short. If followed, it will necessarily incentivize short-term solutions over longer-term policies. The area of impact is also way too small. Los Angeles has some 66,000 homeless overall, with 15,000 chronically homeless. One study suggests that may grow by 86% over the next 4 years. Although skid row has serious problems, it is home to only 5000 or so people. As social service agencies have experienced, not all homeless people even want or will accept shelter offered to them.

So here we are with a major, complex social problem, with every manner of government, social, and philanthropic agency seeking to address it, and one judge says he has the answer. Not only that, but he plans to force his answer into action within mere months. Carter’s decision should be and will be appealed. If it is not turned back, you can only imagine the problems that government has arguably created, from climate change to racial injustice and beyond, that will now be subject to judicial czars. What then of democracy?

To read the column at the Washington Examiner:


Big Government Doesn’t Want Us to Return to ‘Normal’ (Washington Examiner) April 21, 2021

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A century ago, as the United States recovered from a worldwide pandemic and a major war, a presidential candidate wisely and successfully called for “a return to normalcy.” Warren G. Harding, in a campaign speech in 1920, could well have been speaking to people today when he said the “need was not heroics but healing, not nostrums but normalcy.”

With airplanes and hotels filling up, fans returning to ballgames, and even highly regulated California planning to open up in June, daily life is slowly returning to normal. As Dr. Anthony Fauci has said, “We all want normalcy in America, and the highway to that normalcy is vaccination.” More than half of adults in the U.S. have received at least one shot of the COVID-19 vaccine, and all adults are now eligible.

Even our politics seem to be settling down. Joe Biden, who famously conducted much of his presidential campaign from his basement at home, has been low-key on social media, and even with traditional media has conducted only one press conference in his first two months in office.

All that is well and good, very good, actually, but the hardest part of returning to normalcy is yet to come: taming the bulked up federal government with its emergency declarations, executive orders, and massive spending. Against that, there is no vaccine. As Ronald Reagan put it in his famous “A Time for Choosing” speech in 1964: “No government ever voluntarily reduces itself in size.

Although Biden’s speech may be softer in tone, his actions are nevertheless those of an emergency president. In February, he extended the COVID-19 declaration of a national emergency for an additional year. That may be well and good, but it bears watching because government finds it difficult to give up emergency powers. You and I currently live under some 30 states of national emergency, at least one dating back to the Jimmy Carter administration. Emergencies may come and go, but the declarations and powers tend to stay.

Biden has also been signing executive orders at a record pace. No president since Franklin Roosevelt in the 1930s has signed more than Biden’s 40 orders in his first couple of months in office. And these are not just about COVID-19, either. You want gun control? Biden has an executive order for that. Immigration and LGBT rights? Why bother Congress? We can just order it up. Rejoin the Paris climate accords — who needs the Senate for that when you have signin’ Joe and his pen ready to go?

The big test of government normalcy, however, is federal spending, and that is going nowhere but up. First, another COVID relief bill to the tune of $1.9 trillion. Then more infrastructure at $2-plus trillion. A new 2022 budget proposal with billions of new spending on education, the environment, you name it.

President Calvin Coolidge met weekly with his budget director to get federal spending down following World War I. Cutting the federal budget down to size was one of Ronald Reagan’s top priorities, and even he could only reduce the rate of increase. It is a tough business. But so far, Biden is not even trying to cut; he is still happily spending through the more relaxed oversight of the COVID-19 era.

There will be a day of reckoning for emergency government, executive orders, and reckless federal spending. It may come in the form of Republicans finally getting enough spine to push big government back. There may be a debt bubble that finally bursts, with markets losing confidence in massive deficit spending. Or it may come from voters in the 2022 midterm elections. You can ask Bill Clinton (1994) or Barack Obama (2010) about those times when voters sent them strong electoral messages after feeling they had overreached on healthcare.

Return to normalcy, people say. Unfortunately, the federal government will almost certainly be late to that party.

To read the column at the Washington Examiner:


We Must Learn From History, Not Cancel It (Washington Examiner) April 9, 2021

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Championship basketball coach Roy Williams of the University of North Carolina recently announced his retirement, saying he was “no longer the right man for the job.” People speculated on what he meant because he won a national championship only four years ago, but ESPN commentator and former coach Seth Greenberg doubtless got it right when he said it was the “business of college basketball” that drove him out. Greenberg said Williams got into the game not to make money but because he loved the game and wanted to mentor young men in basketball and life. Now, that is no longer the primary job of a college coach where millions of dollars are at stake.

This is a parable of life today in which everything is political.

You can’t have the baseball All-Star Game in Atlanta because Georgia passed a controversial voting rights bill. The game has been moved to Colorado, but has the MLB read its voting-rights policies? What state is pure enough in the politics of the day to host anything without a protest?

The goal of vaccinating as many people as quickly as possible against COVID-19 is now being reconsidered because of equity politics. School reopenings, United Airlines pilot training, and the teaching of American history are all now political questions. The writer Thomas Mann was right when he said, “Everything is politics.”

It is even more difficult today because everything is not just politics, but hyperpartisan politics. In this kind of world, people are saints or sinners; there is no in-between. There are no grays or complexities to work through. You are right or wrong; you win or lose. If we don’t like something you say or do, we simply cancel you.

It will be difficult to pull back from this moment, with all its fire and fury, but an important place to start is with our young people and their educational system. Young people must be taught to see the complexities and difficulties in history. We must see the mistakes in order to learn from them. If we topple every statue of a sinner and cancel everyone we disagree with, what will be left to learn? We are left then with only indoctrination, not learning.

An important place to start in educating young people is to cancel “presentism.” Presentism is the notion that we should look at everything, including history, through the lens of our present time and values. If leaders believed or practiced something that was widely done in their time, but violates our present sensibilities, they must be canceled. If they owned slaves in a time of slavery, we can no longer respect or even learn from them, presentism tells us. History is not to be learned from but to be judged and judged by today’s standards.

Instead, those who would study history need to travel back in time only after first checking their 21st-century glasses at TSA before they depart. They need to read history in the context and values of their time in order to understand the real debates. The Ashbrook Center in Ohio does a marvelous job at this, training and retraining teachers to teach history using primary documents. Students are challenged to read debates and speeches of the day to understand what was really going on. Besides resisting presentism, this kind of study engages students far more than boring textbooks and prompts them to learn more.

We must learn from history, not cancel it. Only when we understand the grays and complexities of life, both then and now, will we be able to improve it.

To read the column at the Washington Examiner:


Biden’s Crisis Response Lays the Groundwork for a Liberal Push (Washington Examiner) March 17, 2021

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President Biden is apparently a graduate of the Rahm Emanuel school of public policy. As former President Barack Obama’s chief of staff, Emanuel famously said, “You never want a serious crisis to go to waste. … It is an opportunity to do things you think you could not do before.” With his flurry of executive actions and the passage of the $1.9 trillion American Rescue Plan, Biden has shown he learned that lesson well as his immediate COVID-19 relief plans lay the groundwork for a longer-term liberal push.

Actually, President Franklin Roosevelt was an early adapter of the Emanuel crisis model. Roosevelt used the emergency of the Great Depression in the 1930s to revolutionize the size and role of the federal government and of the presidency in particular. If you think excessive use of executive orders is a recent response to partisan gridlock, think again. Roosevelt holds the record for most executive orders signed by a president at 3,721. He created countless new “alphabet soup” federal agencies and had the federal government take over farming, regulate private markets, create social security, provide direct welfare payments, and create make-work government jobs.

Roosevelt’s New Deal was not just about providing emergency relief. It was about changing the role of government in ways that persist today.

A closer look at Biden’s early COVID-19 emergency efforts foreshadows a similar story, a new New Deal in the making. For example, we are only now discovering that the relief bill includes $60 billion in new taxes, as well as other tax law changes. These taxes apply to corporations and the wealthy primarily, giving Democrats an early start toward the liberal goal of greater income equality. Biden is now planning even larger tax increases, the first in nearly 30 years, again focused mainly on the wealthy.

Biden has also used the COVID-19 relief bill to restore and increase traditional welfare policies that had been turned back in recent years. The bill includes increased unemployment benefits, healthcare subsidies and expansions, and notably a major expansion of the one-year child tax credit. Democrats have already said they would like to make the child tax credit permanent, which would significantly increase the total cost of the bill. It is always easier to continue an existing policy than to start a new one, so this is a classic Washington toehold expansion.

Of course, few people, even members of Congress, read 5,000-page bills such as this one. As House Speaker Nancy Pelosi famously said of the lengthy Obamacare bill, we had to pass it in order to know what is in it. However, one would do well at least to listen to the strong signals being given by liberals who are pleased with the bill. White House press spokesperson Jen Psaki called it “the most progressive bill in American history.” The 93-member Congressional Progressive Caucus described it as “a truly progressive and bold package.” Read their lips: It’s not just about short-term relief.

Even though the national debt chugs along toward a stunning $30 trillion, COVID-19 relief also removes the normal hand-wringing about increasing the debt. We are in a crisis, after all, so we can’t worry about the debt now. But will we worry about it when the next liberal bill comes along? We’re already told that it’s time for a big infrastructure bill. With COVID-19 relief breaking through debt ceilings, a large infrastructure bill will be far easier to pass.

Through COVID-19 relief, infrastructure spending, raising taxes on businesses and the wealthy, and restoring major welfare programs, Biden will be well on his way to a liberal administration following in the footsteps of Roosevelt and President Lyndon Johnson. Like the New Deal following the Great Depression, we will remember COVID-19 not only for its devastating effects on our health and economy, but also for the transformation of government it ushered in.

To read the column at the Washington Examiner:


Do We Need More or a Different Kind of Civic Education? (Washington Examiner) March 4, 2021

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Civic education in America could use help from almost any quarter.

That bears note because, with major funding from the federal government and deep engagement by 300 scholars, practitioners, and other experts, a new civic education road map was released this week. “Educating for American Democracy” seeks to help states, school districts, and schools “build a new foundation” for civic education by guiding the development of new civic education curriculum across the land.

The most recent National Assessment of Educational Progress test scores tell us that only 24% of eighth graders are proficient or better in civics, with a pitiful 15% proficient in U.S. history. Only one-third could pass the basic citizenship test given to immigrants. But is a new curricular road map what we most need to right the ship?

Moreover, are academics the best ones to design the map? A road map could be anything from a one-page foldout to a 300-page book. Likewise, there are significant disagreements about civic education. Some, myself included, believe civic education is itself in reasonably good health but needs much greater emphasis and priority. Others believe that approach is old-fashioned, that we need to move away from civic knowledge to civic action as a way to engage and teach the young.

There are also those who think almost everything about the history and civics we teach is wrong. The founding of our country must be changed, they say, from 1776 to the coming of slaves and to the formation of the colonies in 1619. Ethnic studies, including condemnations of capitalism, should be the order of the day. Statues, murals, and names of flawed historical figures should be removed in this new Left version of civic education.

In order to be effective, then, a road map has to be something one could reasonably expect to follow. Unfortunately, this new road map is more like the several-hundred-pager than it is a one-page foldout. It incorporates seven themes, followed by five design challenges, and includes countless key concepts, questions, and recommendations. Your average teacher or state legislator is more likely to be overwhelmed than guided. Scholars have their own agendas when they design a road map. Not content just to do more civic education, they seek to improve democracy using civic education as a tool. Our democracy is in “grave danger,” the report says, plagued by inequities, civic dysfunction, polarization, and even violence. It calls on us to “build a new foundation.”

We misdiagnose the problem. It’s not that we don’t know what works; it’s that we aren’t doing enough of it.

Consider that we spend only 5 cents per student per year on civic education and $54 on science, technology, engineering, and math education. Fewer than 10 states require as much as a year of civic education in high school, and some do not require any. Civics has all but been pushed out of elementary and middle school curricula altogether.

Here’s a thought: Rather than doing something completely different, we need to do more civics education, period.

David Davenport is a research fellow at the Hoover Institution and a senior fellow at the Ashbrook Center. He is the author of a recent report: “Commonsense Solutions To Our Civics Crisis.”

To read the column at the Washington Examiner:


Recalling a Governor Shouldn’t Be This Easy (Washington Examiner) February 27, 2021

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As if leading the largest state in the union through the pandemic and guiding the world’s fifth-largest economy through troubled waters weren’t enough, California Gov. Gavin Newsom faces a distracting and expensive recall campaign.

Although Newsom has less than two years remaining in his term, it only requires signatures from 12% of those who voted in the last election, in this case 1.5 million out of more than 22 million registered voters, to put the recall question on a special ballot. Whether you like the job the governor is doing or not (and voters are split: 46% saying they approve, 48% disapprove according to a recent poll), do we need yet another election?

The answer is no. Recalls should be extraordinary remedies, not merely do-overs of the last election for those who cannot wait for the next one. But if you have enough money to gather signatures, you can probably force a recall election. In California, that means just a small handful of billionaires and other Silicon Valley moguls. The Republican Party (like all politicians these days, more interested in winning than in good governance) has also chipped in. With over 1.1 million signatures so far, and a deadline of March 17, the odds are good that there will be a special election this fall.

California is 1 of 20 states that allow a governor to be recalled. History teaches us, however, that Gov. Hiram Johnson and the Progressives who enacted the recall provision were concerned about checking powerful special interests, especially the railroads, that might corrupt the political process. Presumably, a recall was to be used when the representative system became corrupt and tyrannical, not simply disagreeable.

Beyond Newsom’s decision to dine at the swanky French Laundry restaurant during a lockdown, there is no allegation of misconduct against him. People have simply become frustrated by the lockdowns and vaccine rollouts.

The costs, however, are real. Quite literally.

Besides the money to collect signatures, estimates suggest that the special election will cost $80 million to $100 million. There’s also the political distraction concern. California faces huge problems, but this will be a major distraction for months. Then, there is the second question on the ballot. After asking whether Newsom should be recalled, the ballot asks, if he is recalled, who should replace him? The last time California went through this drill, a veritable circus of 135 people, including a pornographic actress, made it to the ballot.

The familiar lesson: There is little constituency left for good governance. Prudence and moderation, words that filled the Federalist Papers, are never heard in politics these days. Now the mantra comes from the late Al Davis, owner of the Raiders football team: “Just win, baby.” If we have another shot at damaging a member of the opposite party and perhaps removing him from office, then we will take it, regardless of the cause or the consequences.

Voters, how about exercising a little judgment and moderation? Parties, how about developing a little patience and waiting for the next election? Political leaders, how about raising the bar for extraordinary tools such as recall, requiring as many as 25% of voters to call for it?

To read the column at the Washington Examiner:


The International Criminal Court Plays Politics In Palestine (Washington Times) February 17, 2021

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The International Criminal Court will celebrate its 20th birthday next year. It was touted at its founding as a permanent judicial solution to mass cases of injustice such as the genocide in Rwanda and war crimes in the Balkans in the 1990s. This aspect of the new court’s work has certainly been disappointing as it approaches 20 years and $2 billion of expenses with a handful of convictions of African warlords to show for it.

Beyond its legal agenda, from its inception the ICC has had a political one as well. The political designs of the ICC took a big step forward recently when it decided it had jurisdiction over alleged war crimes in Gaza and the West Bank, potentially bringing Israeli soldiers before the court. This controversial decision flies in the face of international law, but drives right up the middle of the political agenda of the court to bring military powers such as Israel and the United States under its jurisdiction.

In response, Israeli Prime Minister Benjamin Netanyahu rightly called out the court as a “political body and not a judicial institution.” U.S. State Department representative Ned Price correctly pointed out that Palestine is not a sovereign state and therefore it was not qualified to call for an ICC investigation. Not everyone agrees, of course. Human Rights Watch called the decision “pivotal,” as it finally offers victims of serious crimes some legal recourse. It’s pivotal alright, but pivots in the wrong direction.

When the court was formed, the plan had been for cases to be taken up when they involved state parties to the treaty creating the court. This is one of the limitations of international law, requiring agreement from sovereign nations to be acted upon. There was also a way for cases to be referred to the court by the U.N. Security Council.

But late in the negotiations, a group of small and medium-sized nations joined with aggressive human rights groups to take the court in a much more expansive direction. In the end, cases could be brought for crimes on the territory of nations that were members of the court, regardless of the nationality of those committing them. And an independent prosecutor would have the power to bring cases.   

These aggressive changes to the structure of the court caused the U.S., an early proponent of the court, to drop out and even today, some 70 nations have not joined the court, including the U.S., Israel and other world powers. This must not surprise the founders of the court because they intentionally pursued an aggressive and independent direction, saying they wanted “a court worth having.” A court worth having meant one that could come after the U.S., Israel and other nations that had significant military deployments.   

The court has rattled its sword over alleged American war crimes in Afghanistan, but it has not taken the bold step of bringing cases against Americans there. Israel, however, sometimes finds itself a proxy for the U.S., a younger brother easier to pick on. The recent 2-1 decision of a three-judge panel of the ICC does just that, advising the prosecutor of the court that the ICC does have jurisdiction over alleged war crimes in Gaza and the West Bank, so now the fuller political agenda of the ICC is in play.

There is more politics here, too, namely the politics of the Middle East peace process. Palestine has long angled to be accepted as a state, but its statehood has been wrapped up in the larger peace negotiations. As a consequence, Palestine has tried to join any number of international organizations to bolster its case, signing on to the treaty of the ICC in 2015. That, too, was objectionable, since only states may join the court.

To paraphrase Carl von Clausewitz, the International Criminal Court’s larger agenda is politics by other means. Its decision to allow cases against Israelis, whose nation is intentionally not a member of the court, violates international law and is politics by other means. It must be opposed.     

To read the column at the Washington Times: