RUTHFULLY YOURS

As we write, the two-hundred-and-thirtieth anniversary of the ratification of the Constitution of the United States just passed. The holiday, celebrated on or about September 17 (depending on whether that date falls on a weekend), was known as “Citizenship Day” until 2004, when Congress officially renamed the commemoration “Constitution Day and Citizenship Day.” The new law stipulated that all federally funded educational institutions, and indeed all federal agencies, provide additional programming on the history and substance of the Constitution.

In that spirit (although The New Criterion receives no federal funding), we wanted to offer a few brief observations about that remarkable document and its contemporary significance.

The U.S. Constitution is, by a considerable measure, the oldest written constitution in the world. (Only half of the world’s constitutions make it to their nineteenth birthday.) It may also be the shortest. The main body of the text, including the signatures, is but 4,500 words. With all twenty-seven Amendments, it is barely 7,500 words. The Constitution of the European Union, by contrast, waddles to the scale at 70,000 words—an adipose document the girth of a longish book.

The U.S. Constitution is the oldest written constitution in the world. It may also be the shortest.

What really distinguishes the U.S. Constitution, however, is its purpose. The Framers— James Madison first of all, but also John Adams, Thomas Jefferson, and others—were well acquainted with the effects of arbitrary and unaccountable state power courtesy of the depredations of George III. Accordingly, they understood the Constitution prophylactically, as a protection of individual liberty against the coercive power of the state. “In framing a government which is to be administered by men over men,” as Madison noted in Federalist 51, “the great difficulty lies in this: you must first enable the government to control the governed”—that is hard enough. But then “in the next place [you must] oblige it to control itself.”

As many observers have noted—though perhaps not so many among the governing class—the U.S. government has, in recent decades, done a better job at the former than at the latter.

Part of the problem is the proliferation of laws. The U.S. Constitution may be admirably compact. But the U.S. Code of Laws runs to fifty-three hefty volumes. And then there are the thousands of Statutes at Large representing the blizzard of Acts and Resolutions of Congress. There is a great deal to be said, we think, for proposals to include an annual or biennial sunset provision in laws so that those not deliberately renewed would lapse.

But the proliferation of legal instruments is only part of the problem. Perhaps even more serious is the proliferation and institutionalization of administrative power that operates outside the direction and oversight of Congress, the sole body invested by the Constitution with legislative power. As the legal scholar Philip Hamburger has noted, the explosion in the number of quasi-governmental agencies and regulations over the last few decades has become “the dominant reality of American governance,” intruding everywhere into everyday economic and social life. As if in explicit violation of the second part of Madison’s observation about the difficulty of framing a government, the growth of what has come to be called “the administrative state” seemingly flouts the obligation of state power to control itself.

In our view, the question of how best to deal with the enervating and liberty-sapping effects of the administrative state should occupy a prominent place on the agenda of our national conversation. Doubtless a first step is rhetorical: to bring about a more broad-based and vivid recognition of the extent of the problem. From time immemorial, complacency (often abetted by simple cowardice) has been a great enabler of despotism (and the reality of the administrative state is nothing if not despotic). Challenging that complacency with appropriate bulletins from the front is the first order of business. It is a task that—living up to Madison’s quiet phrase “great difficulty”—will be as protracted as it is important.

But in the context of Constitution Day, we wanted to sound a note of homage as well as admonition. To this end, we would like to remind readers of a document from America’s founding generation that is well known without quite being, we suspect, known well: George Washington’s Farewell Address of 1796.

A first draft of this speech was completed with the help of James Madison in 1792 but was shelved when Washington embarked on a second term. As that drew to a close, Washington once again turned his mind to valedictory remarks and engaged Alexander Hamilton as his principal editor. Probably the most famous part of the six-thousand-word address comes towards the end, when Washington warns the country against “interweaving our destiny with that of any part of Europe, entangl[ing] our peace and prosperity in the toils of European ambition, rivalship, interest, humor, or caprice.” It is folly, Washington observes, for any nation to look for “disinterested favors from another.”

The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith. Here let us stop. Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns.

It has become a sort of reflex to object to the National Football League’s players’ bended knee/sitting through the National Anthem—while also conceding that their complaints have merit.

But do they?https://amgreatness.com/2017/10/02/the-tragic-incoherence-of-the-nfl-protests/

To answer that question, one would have to know precisely what the protests are about. But so far the various reasons advanced are both confused and without much merit. That is why the players will eventually stand for the anthem before their tragic incoherence loses them both their fans and their jobs with it.

Inordinate Police Brutality Against the African-American Community?
While there certainly have been a large number of well-publicized shootings of African-American suspects, statistics do not bear out, as alleged, a supposed wave of police violence against black unarmed suspects. Is the anger then directed at regrettable though isolated iconic incidents but not at prevailing trends?

White police officers are more than 18 times more likely to be shot by African-Americans than white police officers are to shoot unarmed black suspects. Does anyone care?

In absolute numbers, more white suspects were shot yearly by police than were black suspects. Given respective crime rates and the frequency of relative encounters with police, black suspects were not statistically more likely to be victims of police violence than were whites.

Given the topics of race, crime, and violence, the frequency of black-on-white crime versus white-on-black crime—depending on the particular category—while comparatively rare, is still widely disproportionate, by a factor of 7 to 10.

Roughly 40-50 percent of all reported U.S. arrests for various violent crime involve teen or adult African-American males, who make up about 4-5 percent of the population. Blacks are well over 20 times more likely to be shot and killed by other blacks than by police officers.

The Left often does not pay much attention to such facts—though it grows angry when others do. Or to the extent progressives acknowledge these asymmetries, they contextualize the alarming frequency of inordinate black male crime, and the police response to it, by citing the legacy of slavery and claiming contemporary racism as well as police and judicial bias.

But such rationalization is largely academic.

The general public—and by extension the NFL fan base of all racial backgrounds—feels these imbalances to be true and, in their own lives—fairly or not—make adjustments about where they live, put their children in school, or travel. The antennae of wealthy, virtue-signaling white liberals are the most sensitive to crime disparities; the latter are also the most likely to have the desire and wherewithal to navigate around them. The makeup of elite neighborhoods and prep schools of Washington, D.C., is a testament to that unspoken fact.

It is certainly true that black males, regrettably, may be watched or stopped by police with greater frequency than Latino, Asian, or white males tend to be; but arguably not in a disproportionate fashion when seen in light of the data of those arrested and convicted of crimes.

Such proclivities, while again regrettable, are due less to racism than to statistically based preemptive policing—or statistically-based (and therefore rational) police fears.

Colin Kaepernick’s protests allegedly focusing on inordinate racially biased police brutality had no statistical basis in fact. To the extent his argument was logically presented, the irate NFL fan base rejected it.

Racial Disparity Attributable to Institutionalized Prejudice?
Were the players then frustrated about general racial disparities in landscapes beyond their own privileged positions? That larger question of why African-Americans have not yet statically achieved the same level of education, income, and family stability as the majority is more complex.

As of now, little is known about what caused Stephen Paddock to murder some 58 innocent people in Las Vegas Sunday evening. It sits before us as what President Trump described in a statement as “an act of pure evil.”

More information may emerge in coming days, such as how Paddock could have smuggled so much weaponry into the Mandalay Bay Resort and Casino. But currently there is nothing to link this killer to the kinds of causes or illnesses associated with other recent mass murderers. There is no evident connection to Islamic terrorists or any extremist group, no suggestion of disturbed behavior, no criminal record, no fights with neighbors or co-workers. The only oddly noteworthy fact is that his father was once on the FBI’s most-wanted list.

We always search for reasons when this happens, but no pretext or explanation is sufficient to explain why a person commits mass murders such as this one. Not Omar Mateen’s slaughter of 49 people at an Orlando nightclub last year or Anders Breivik’s slaughter of 77 people in Norway in 2011.

We all live daily lives that involve some degree of disputes, conflicts and animosities. Most remain inside civilizing constraints. Some recesses of the individual human brain, however, can harbor impulses that are simply malign and sometimes produce senseless murder.

Americans have spent more time recently than they would ever care to trying to absorb moments of terrifying, overwhelming destruction. People in Texas, Florida, Puerto Rico and the Caribbean islands will spend years rebuilding lives and communities torn apart by several hurricanes. It can sometimes seem too much.

Think, though, of the failed attempt at mass murder in June by a lone gunman who sprayed bullets into a Congressional baseball game in suburban Virginia. Last Thursday, Rep. Steve Scalise, severely wounded by the gunman, returned to the House of Representatives and delivered an eloquent tribute to the acts of valor that day by police officers and colleagues.

Amid the carnage of Las Vegas and the hurricanes’ destruction, a great many similar acts of selfless courage occurred to save the wounded or to minimize the loss of life. President Trump called it “the ties of community and the comfort of our common humanity.” Against the evil of a Stephen Paddock, that undefeatable reality is worth remembering.

In Las Vegas, more than 50 people are dead, and perhaps hundreds of others have been injured, in the deadliest mass-shooting attack in American history. Stephen Paddock, a 64-year-old Nevadan believed to be the lone gunman, fired upon attendees of the Route 91 Harvest music festival from the 32nd floor of the Mandalay Bay Resort across the street. He killed himself before police reached him.

As we begin to process what has happened, it is important to remember — as we have learned from too many of these incidents — that initial reports are often wrong. We must wait for investigators and responsible journalists to do their work before we can have a clear picture of what happened.

On that score, news reports this morning are already referring to this atrocity as a “terrorist attack.” And that was even before the Islamic State jihadist organization claimed responsibility for the attack, a claim that has just beenreported by the Washington Examiner. ISIS offered no proof of its assertions that Paddock was a recent convert to Islam and had carried out the massacre on the terror network’s behalf. Again, we cannot assess it until the investigation unfolds.

Clearly, Paddock did terrorize a community, particularly an event attended by 22,000 people, at least hundreds of whom he put in mortal peril.

Does that make him a terrorist? Let’s put the unverified ISIS claims aside. If Paddock was a lone gunman acting independently and not under the influence of any organization or ideology, the answer to the question may depend on which law we apply — the federal penal code or Nevada’s criminal law.

We’ve recently had occasion to consider federal terrorism law in connection with a discussion over whether the violent “Antifa” movement should be legally designated as a terrorist organization. Under the U.S. penal code (section 2331(5) of Title 18), a violent act meets the definition of “domestic terrorism” if the actor was seeking:

(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.

Many (perhaps most) mass killings will meet this test. Plainly, shooting at a crowd is an act of intimidation. But as the word “coerce” (also in that first clause) implies, the federal terrorism statute speaks to intimidation or coercion of a civilian population toward some identifiable objective. This kind of intimidation is easy to make out when the aggressor is a jihadist, whether associated with an outfit such as ISIS or merely “inspired by” sharia-supremacist ideology (which seeks the imposition of sharia law and to force changes in American policy). Establishing such intimidation is also straightforward when a group with a radical political agenda, such as Antifa, is involved. It is more difficult, though, when we are dealing with a lone gunman.