Iss. 18/Jan. 20 cover 3/26/02 5:14 PM Page 1 N Y H E E O N H S J E T E WE G AL H S MONTINGABAS A H L G T NI AT M JANUARY 20, 1997 wwwaaarrr$2.95 ttthhheee ooonnn ttthhheee mmmiiillliiitttaaarrryyy cccuuu llltttuuurrreee byJames Webb Iss. 18/Jan. 20 TofC 3/26/02 5:15 PM Page 1 VOLUME 2, NUMBER 18 • JANUARY 20, 1997 2 Scrapbook 11 Newt, Now more than Ever The Timespursues Newt; Haley II, where are you?and more. They took their stand. Now don’t flinch.byWILLIAMKRISTOL 4 Casual 12 No retribution David Brooks is lord—and victim—of his manor. The GOPers who left Gingrich won’t suffer. byFREDBARNES 6 Correspondence 14 Clinton’s Kind of general Barry R. McCaffrey, drug czar. by CARLM. CANNON 9 EDITORIAL 40 Parody Constitutional Suicide 17 The War on the military culture The presence of women in the armed forces raises unresolved problems. by JAMESWEBB 22 What China knows that We don’t The case for a strategy of containment. by ROBERTKAGAN Cover by Kent Bain & Books Arts 29 “Mr. Fowler, He live” In defense of the second greatest lost cause. by JOSEPHEPSTEIN 34 The Murray manifesto A case for libertarianism elegantly argued. by DANIELCASSE 37 Diary of a moviegoer ’Tis a fine season at the multiplex. Rejoice! by JOHNPODHORETZ William Kristol,Editor and Publisher Fred Barnes, Executive Editor John Podhoretz, Deputy Editor David Tell, Opinion Editor David Brooks, Andrew Ferguson, Senior Editors Richard Starr, Claudia Winkler, Managing Editors Christopher Caldwell, Books & Arts Editor Jay Nordlinger, Associate Editor Tucker Carlson, Matt Labash, Matthew Rees, Staff Writers Kent Bain, Art Director Jacqueline Goldberg, Assistant Art Director Pia Catton, Reporter J. Bottum, John J. DiIulio, Jr., Joseph Epstein, David Frum, David Gelernter, Brit Hume, Robert Kagan, Charles Krauthammer, P. J. O’Rourke, Contributing Editors James L. Pitts, Deputy Publisher Jennifer L. Felten, Business Manager Francine M. McMahon, Advertising Director Dianne S. Mace, Subscription Director Polly Coreth, Doris Ridley, Carolyn Wimmer, Executive Assistants Victorino Matus, Research Associate Alison Maresco, Account Executive Kimberly Mackey, Staff Assistant Josephine DeLorenzo, Publicity THEWEEKLYSTANDARD(ISSN 1083-3013) is published weekly, except for the first week of January and the third week of July, by News America Publishing Incorporated, 1211 Avenue of the Americas, New York, NY, 10036. Periodicals postage paid at New York, NY, and at additional mailing offices. Send subscription orders to THEWEEKLYSTANDARD, P.O. Box 96153, Washington, DC 20090-6153. Yearly subscriptions, $79.96; Canadian, $99.96; foreign postage extra. Cover price, $2.95 ($3.50 Canadian). 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No material in THEWEEKLYSTANDARDmay be reprinted without permission of the copyright owner. THEWEEKLYSTANDARDis a trademark of News America Publishing Incorporated. Iss. 18/Jan. 20 scrappie 3/26/02 5:14 PM Page 2 L I O S ISTENING N N THE PEAKER Give the New York Timessome with the ethics committee. The mer FBI agent, points out: "The 1986 credit: Its continuing efforts agreement stipulated in part that Electronic Communications Privacy to pump up the Gingrich Gingrich would not orchestrate Act makes it illegal to intentionally “scandals” verge on the heroic. attacks on the ethics committee. intercept cellular phone calls and to Friday morning January 10, the Gray Clymer wrote the story so artfully possess or divulge the contents of any Lady greeted its readers with the that casual readers might conclude intercepted conversation. The act of headline “Gingrich Is Heard Urging Gingrich could be heard violating the forwarding a secretly taped private Tactics in Ethics Case” over the agreement. In fact, the transcript conversation to a news organization byline of Adam Clymer, the paper’s proved that Gingrich and his col- for publication is explicitly prohibit- designated Gingrich hound. All the leagues were quite meticulously ed under federal law.” non-verbal cues signaled a major rev- observing the agreement’s jots and Now here’s some news: That elation. There was a boxed three-col- tittles. The story, in other words, was unnamed congressman—so friendly umn spread on the front page, with a precisely the opposite of what the to Adam Clymer but so “hostile to large picture of Gingrich, and almost Times said. But the larger cause of Mr. Gingrich”—was very likely vio- a full page on the inside, complete toppling the speaker would have been lating federal law, something only with side-bar. If only they’d had a ill served by an accurate headline: Gingrich’s frothiest critics accuse the story to go with it! “Gingrich Heard Being Scrupulous speaker of doing. As a matter of fact, Apparently a Democratic con- in Not Violating Ethics Agreement.” aides to Sen. Chuck Robb were actu- gressman—“hostile to Mr. Gin- For that matter, in its huffing and ally convicted a few years back for grich,” as Clymer delicately put it— puffing to inflate another Gingrich disseminating a similarly taped con- passed along to the Timesa tape of a non-scandal, the Times may have versation in hopes of damaging a phone call between Gingrich and the missed an even juicier story—one political enemy. This could get inter- House leadership, made on the day that was literally handed to it. As esting. Hearings, anyone? Or better Gingrich arrived at his agreement Ohio congressman Mike Oxley, a for- yet, how about a special prosecutor? ACT LIKE DEMOCRATS nique. But just as he was conjuring up memories of his ill- fated beach-volleyball metaphor in San Diego, the speaker The morning meeting of House Republicans on the day managed to find his footing and go on to deliver a speech of Newt Gingrich’s reelection as speaker was high- that was vintage Gingrich (1994 vintage, that is). In its cel- lighted by pro-Gingrich speeches from two Democrat- ebration of the American spirit and its upbeat arguments turned-Republicans—Billy Tauzin and Mike Parker. Both for serious conservative reforms such as the rollback of argued that their old colleagues, under the same circum- affirmative action and the curbing of judicial activism, the stances, would have unflinchingly put loyalty to their speech was an unanticipated triumph. Perhaps Gingrich party above all other considerations. Other notable speech- remembered in time to stop himself that the high-jump es came from a visibly shaken Tom Campbell, rising to innovation he was about to commend came to be known as explain why he wouldn’t be voting for Gingrich, and fellow the Fosbury Flop. moderate Marge Roukema, trying to extract from the lead- ership some rules changes in exchange for her support. She GETTING TO 83 was rebuffed but supported the speaker anyway. In contrast to the disciplined, hard-headed display of Don’t expect another Haley Barbour. That’s the mes- old-fashioned political muscle that had just gotten him the sage to keep in mind when the 165 members of the speaker’s job for a second term, Gingrich’s speech looked Republican National Committee convene on January 17 to like it would take up where the maudlin San Diego con- select a new leader. “Most of the committee members are vention left off last summer (you remember—the tear-jerk- looking for another Haley, but there’s not one in this race,” ing show that oh so successfully boosted Bob Dole’s soc- says Tom Slade, chairman of the Florida GOP. So who’s cer-mom vote). Gingrich last week launched into a misbe- going to be the next chairman? A Hotline/PoliticsNow poll gotten parallel between the need to rethink race relations last week found David Norcross of New Jersey, former and the resistance of Olympics bureaucrats thirty-some RNC counsel, nominally leading with 19 votes, but the years ago to Dick Fosbury’s innovative high-jump tech- combined support for “Uncommitted” and “No answer” 2/ THEWEEKLYSTANDARD JANUARY20, 1997 Iss. 18/Jan. 20 scrappie 3/26/02 5:14 PM Page 3 Scrapppbook an who has spent the last 20 years mired in grassroots politics. He acknowledges, “While I’m not necessarily people’s first choice, I am their second choice.” “LIBERAL GENTRY” UPDATE Jane Amsterdam, the former Manhattan inc. editor who dropped out of the media whirl to drive horse carriages, has now been hired by Tina Brown of the New Yorker as a part-time editor. “At the moment, carriage driving is a lot harder to do than editing,” Amsterdam told the New York Observer, presumably while sharpening her quill pen. Meanwhile, the January 9 Home section of the New York Times carried the vital article “A Vision of Simplicity Is New Grist for the Mill,” which adds new depth to the esthetic limned two weeks ago in our article “The Liberal Gentry.” Edward Wilson, a dentist, and Barry Salzman, a management consultant, have ren- ovated an 18th-century gristmill. The win- dows have been enlarged to mammoth size. Antique fence posts have been converted into sconces. A 19th-century wood and iron shoe rack has been turned into a wine rack. New white parchment shades were soaked in water, baked, dried, crushed, and ironed to give them appropriate texture. New ceilings were made from 100-year-old barnwood, while fresh wood for the staircase was beaten with a ham- mer, five-pound iron ball, ice pick, tiles, and chains to give it the proper aged look. (The ice was a more revealing 90 votes. In other words, the race is pick made fake wormholes.) No cliché has been left out. A wide open. Steve Merrill, the early front-runner and popu- Liberal Gentry shrine. lar governor of New Hampshire, never managed to pull away from the field. And his home-state paper, the conser- ANNOUNCEMENTS! vative Manchester Union-Leader, endorsed one of his oppo- nents. A bigger problem may be that Merrill is seen by With this issue we give a name and an editor to our many committee members as an ally of high-priced con- cultural pages. Books & Arts will be the rubric for sultants. The large bloc of Christian Coalition-oriented our expanded coverage of literature, biography, philoso- committee members—as many as 40, according to the phy, history, art, movies, television, etc. The section’s edi- Coalition’s Ralph Reed—has expressed its reservations tor is Christopher Caldwell, who has been a senior writer about Merrill on these grounds. It didn’t help that Merrill, here since the inception of THE WEEKLY STANDARD. along with his promotional video, distributed a slick 18- Among his many provocative articles were cover stories page pamphlet advertising the Virginia consulting firm on the feminization of America and why O.J. Simpson managing his race, Stevens, McAuliffe & Schriefer. continues to haunt us. (Plus Chris sits in his office and If Merrill falters, Norcross will pick up more votes. But reads French novels—in French!) his pro-choice position on abortion means he’s unlikely to We are also pleased to add Brit Hume to our roster of find the 83 votes needed to win. Nor do most observers contributing editors. Now the Washington managing edi- expect that the Right’s favored candidate, Tom Pauken, tor of Fox News, Brit began his career as a newspaperman can get to 83, though he’s shown surprising strength. at the Hartford Timesand worked for Jack Andersonbefore Emerging late last week as a favored compromise candi- joining ABC News in 1973. He has contributed articles to date was Jim Nicholson, a conservative national commit- the American Spectator and the New Republicand writes a tee member from Colorado. Nicholson is a Vietnam veter- widely syndicated column on personal computers. JANUARY20, 1997 THEWEEKLYSTANDARD/ 3 Iss. 18/Jan. 20 casualTWO 3/26/02 5:14 PM Page 1 Casual utes the halls resounded with gasps of admiration as Miss Stewart gushed over the piquant French My Father’s Mansion Has Many Holes furnishings, the graceful rococo set- tees, and the witty yet elegant gash in the dining-room wall (so ad- mired by the curatorial staff of the National Gallery at the recent fund- It was dusk. Brooks flicked a family is forced to move out of this raiser hosted by the Brookses). The speck of lint from his velvet house (bought in September, just wall had been breached accidental- smoking jacket, poured himself three months before) and into a ly by a carpenter who was trying to a finger of Chivas, and held out his dingy apartment. A smile swept install bookshelves in the adjacent glass so that it could capture a few across Brooks’s face. If only! living room. ounces of water leaking down from It was dusk. The cool gray of the It was dusk. Brooks wandered the bathroom upstairs. Through winter’s evening permeated the into the kitchen and savored the the hole in the ceiling that had abode; one of the painters had ear- rich aroma of homemade bread— been cut by the plumber who had lier in the day detected water seep- the flour ground from the bones of desperately tried to stem the leak, ing through the wall around the the realtor who had made a 6 per- Brooks admired his wife as she circuit-breaker box, so the power cent commission selling him the applied the last of her emeralds. had been shut off. The air was house. The kitchen wall, last paint- “Shall we dine eight-ish?” he frosted with anticipation of the ed during the Coolidge administra- asked. They were soon to host coming candlelit dinner. The brac- tion, was itself an edifying canvas another of their glamorous Wash- ing winter’s wind whispered a dul- of 20th-century food stains. ington dinner parties. Her reply cet tune through the holes around Twirling an elegant ’73 Merlot in was drowned out by a sudden the window frames. Brooks preparation for its uncorking, crash. It was the handiwork of the watched his breath cloud and drift Brooks could only admire the ener- laborers outside, who were trying upwards, until crystalline drops of gy with which the home’s previous to rebind the wall of the house to condensation mimicked the water owners had practiced their drilling its foundation. stains on the ceiling. techniques on the kitchen walls. It was dusk. Brooks retired to his It was dusk, and in the growing sitting room and admired the way darkness the house was trans- his two-year-old daughter had mas- It was dusk. The sounds of chil- formed into a symphony of melodi- tered the power saw a carpenter had dren’s play resounded from the ous murmurings. From the base- left on the floor between visits. kitchen, where Brooks’s six-year- ment came the gentle lapping of Contractors had begun making old son was trapped under some of rain puddles brushing against the such frequent visits to the house the cabinetry that had been shaken family book collection, still waiting that many were leaving tools and loose when the dishwasher door for the shelves to be completed. toothbrushes overnight. Many were again fell unaccountably to the The sump pump was doing its having their mail forwarded. He floor. Halfway extricated, the boy work much as the legendary Sisy- sipped meditatively on his cocktail, was able to motion to his mother phus did his, and with as much trying to remember whether this upstairs through the other hole in effect. Brooks could hear the sound was the night Oscar de la Renta was the ceiling, the one caused by the of shuffling feet outside the front bringing Princess Stephanie. leaking pipes in the children’s door. The guests had arrived five Regardless, it would—as it is every bathroom. minutes earlier, but Brooks had not night at the Brooks salon—be an It was dusk. A sense of calm heard them because the doorbell evening of glittering conversation, enveloped the Brooks household, didn’t work. Knocks followed. As witty bons mots, and sensual ele- disturbed only by the twinkling of Brooks entered the foyer, he heard gance, as each guest would outdo jackhammers as the landscapers the creaking of the ceiling above the last in trying to explain why regraded the ground around the just before it came down on his mud was mysteriously seeping up back room, where water had been head. As the paramedics lifted him through the tiles of Brooks’s down- flooding into the basement. Martha onto the gurney he looked up stairs bathroom. Ensconced in a Stewart had stopped by to pick up a where his roof had once been and wing chair, Brooks drifted off into a few tips on gracious living, and beheld the infinite vastness of the reverie: A bank official hands him Brooks put aside his collection of sky. It was dusk. DDaavviidd BBrrooookkss a foreclosure notice and the Brooks E.B. White essays. For a few min- 4/ THEWEEKLYSTANDARD JANUARY20, 1997 Iss. 18/Jan. 20 lettz 3/26/02 5:14 PM Page 2 LLiibbeerraall GGeennttrryy,, hunt, shoot, and fish around their DDrr.. SSppoocckk’’ss GGoott tthhee SSccoooopp BBeehhoolldd HHiissttoorryy ancient country houses replete with creaky stairs, dilapidated sofas, and My wife and I enjoyed Claudia primitive plumbing. Winkler’s “Dr. David Brooks’s “The Liberal Gen- I do hope Brooks does not want to Spock...Neoconservative?” (Dec. try” (Dec. 30/Jan. 6) was enor- consign the liberal gentry to the same, 30/Jan. 6). Winkler even helped settle a mously entertaining reading. The sad fate that befell Marie Antoinette, family dispute. Upon the birth of our piece was a brilliant mixture of Veblen- another devotee of rusticity, who son, we discovered that babies, unlike ian analysis and acidulous description played the role of milkmaid at her play cars and cameras, do not come with comparable to Tom Wolfe. There is, farm on the grounds of Versailles with owner’s manuals. We began avidly however, one point I wish Brooks had her ladies-in-waiting. Ah, the bucolic searching for appropriate books on the made. life! subject. A friend recommended Dr. Isn’t the egregious bad taste of plu- William A. Weinrich Spock’s book, thus drawing a knowing tocrats—those who have more money Tulsa, OK laugh from me given the man’s politics than sense—as old as civilization and reputation. My wife, however, bold- itself? In fact, when measured against ly began reading it. We’ve found the MMiixxiinngg FFaacctt aanndd FFiiccttiioonn the grossness of Imperial Rome, the book fairly useful, taken with a grain of suffocating préciosité of France under salt. Your article helps explain why. Louis XVI, or the hypertrophied con- Iwould like to commend Daniel Wat- William F. Connelly, Jr. sumption of Gilded Age America, the tenberg for his reprimand of John Lexington, VA inanities of the Liberal Gentry seem harmless. One could even make the Iheard Dr. Spock speak in 1970 at the case that the Liberal Gentry are actual- University of Miami’s Earth Day cel- ly moving in a healthy direction. Com- ebration. He displayed what today we pare them with their more recent pre- would call a real concern about the decessors who lavished sums of money environment. He was soft-spoken and that would have beggared Croesus on didn’t talk about child-rearing, but did the daubings of Pollack, Warhol, and specify that we should take care of our Lichtenstein. world for our children. He didn’t seem That aside, I was particularly radical, just concerned. appalled by Brooks’s vision of the good In the same way, his concern for chil- life, as he describes it in the last sen- dren is at the fore of Baby and Child tence of the piece. He bursts into song Care. Spock’s politics should take a sec- about the joys of slaving away “in a ond place to his common sense manic brokerage house, hunched over approach to one of life’s most difficult a trading terminal, in a glitzy city endeavors. His book was at my side amidst all the frantic and kaleidoscopic while I raised two children. I trusted his activity of the real world.” I have to clear and concise answers, and it is clear believe that only a former employee of that plenty of others did too, despite his the Wall Street Journalcould romanti- politics. cize a stock trading company in one of Donne Paine America’s current Bosch-like urban Long Beach, CA pestholes. If this is his idea of the sum- mum bonum, he should take a break Berendt’s blatant disregard for the Claudia Winkler’s piece appears to from his labors at THEWEEKLYSTAN- truth (“Midnight Fact and Fiction,” show how a few steps away from DARD and spend a few weeks in the Dec30/Jan. 6). His article was most the Left does not a conservative (neo or country getting some fresh air. refreshing at a time when society otherwise) make. Winkler suggests Dr. Michael S. Burch applauds and rewards those who Spock no longer deserves the reputation Alexandria, VA stretch the truth under the guise of of being a purveyor of permissiveness artistic liberties. But what else can we and laissez-faire morality. Regarding David Brooks’s piece: I expect from Berendt? We have made Without ever thoroughly denounc- get a real kick out of observing the men like Oliver Stone famous and ing the teachings of his earlier books, exotic habits of each rising generation wealthy. And for what? For making Dr. Spock found religion and strong of nouveaux riches. Certainly the liberal films like Born on the Fourth of Julyand families—for others, that is. As Winkler gentry’s communing with nature beats Nixon, which were supposedly true sto- points out, this took place around the the vulgarity of our Mauve Decade ries and yet were full of stretched same time that he joined arms with the tycoons with their horseback banquets truth. I hope that Wattenberg’s article antiwar movement, which did much to in the old Waldorf ballroom. wakes up American viewers and read- discredit strong families. Spock’s half- And who cannot but sympathize ers. blind understanding of what keeps fam- with Jilly Cooper’s vivid description, Victoria Staten Ducharme ilies strong is a typical way of excluding in Class, of the old English gentry, who Hilton Head, SC oneself from the rigor that makes other 6/ THEWEEKLYSTANDARD JANUARY20, 1997 Iss. 18/Jan. 20 lettz 3/26/02 5:14 PM Page 3 Correspppondence people’s lives moral. It is in this vein vehicle based on suspicion. That privileges are given to the woman, and that he finds the chutzpah to say he sounds as much like police-state work age-old rights are taken away from the “envies” other people’s faith. as it does good police work. man. The cornerstone of feminist law is The book with some of the sharpest As a conservative public defender, I abuse. Abuse is a one-way street. A lessons on raising children is simply see too many instances of elect- woman can be excused from any crime, Rousseau’s much-overlooked Emile. ed judges’ making cowardly, if political- including the murder of children, on The very first lesson Rousseau thinks a ly safe, decisions that do not make the account of abuse at any time in her life. baby should learn is that he is not the headlines but do deprive defendants of Also, Caldwell might have noted the master of the universe and that his par- their rights. Combine this with the sad most direct reason why politics has ents will not be slaves to his whims. fact that some few prosecutors will been feminized. Women have built Contrast this to the indulgent treatment attempt to win at all costs, rather than powerful political groups, most liberal, of children today and one sees how seek justice, and the decisions that some conservative, while men refuse to Rousseau was perhaps the cynic and Thomas decries are warranted. do the same. Society is becoming femi- today’s parent the romantic—and Dr. Frank T. Pimentel nized because men won’t fight, so Spock, the romantic’s teacher. Rochester, NY women win the battle by default. While Dr. Spock recommends Men don’t get involved because “ideals” and examples to “inspire” the politicians fail to give them reasons to child, he neglects any hardheaded con- LLeett tthhee GGeennddeerr WWaarr BBeeggiinn do so. During the last election, both ception of human nature. Thus he fails parties took turns trying to see who to grasp the weakness of his wishy- Christopher Caldwell’s “The could pander to women the most. washy teachings. Perhaps he still Feminization of America” (Dec. Neither side had anything to say to deserves the label “permissive.” 23) began nicely by noting that women men, other than calling them deadbeat David Skinner are “first among equals” and are the dads. As far as I’m concerned, there are Washington, DC “dominant class.” Unfortunately the two feminist parties. article went on chauvinistic tangents Russell Van Zandt As a child of baby-boomers, I was and ended up avoiding the true mean- Northbrook, IL particularly interested in Claudia ing and cause of these facts. Winkler’s article. I’m always delighted Caldwell writes, “Cultural ideas to hear about aging liberal icons’ recog- about female priorities are coming to a AAnnaatthheemmaa ttoo DDeemmooccrraaccyy nizing the follies of their youth. remarkable convergence. Those who Perhaps, if his name still inspires new would further ‘feminize’ society make Matthew Rees’s “The Judge Who parents to seek guidance in raising chil- the same arguments as those who would Hates CCRI” (Dec. 16) presents dren, Dr. Spock can also inspire new de-feminize it—that women and men an insightful personal and political pro- parents to help reverse the slide toward are different and that those differences file of San Francisco’s chief U.S. district a chaotic and uncivilized society. need to be respected.” judge Thelton E. Henderson—a Carter Lance Beehler Come on. The feminists, and the appointee and the man who single- Bluffton, SC general population, are not coming to handedly “stole” the votes of 54 percent believe in traditional gender roles. of Californians by imperiously blocking They talk about inequality as a tool to the implementation of Proposition 209. CCrriimmee--SSoofftt CCoouurrttss become, as Caldwell wrote, “primus Judge Henderson—obviously a man for inter pares.” The differences feminists whom the democratically expressed I normally enjoy Andrew Peyton believe in are the ones necessary to will of the people is an anathema—rep- Thomas’s contributions, but “The make women win and men lose. resents the apex of judicial activism. Soft-On-Crime Rehnquist Court” (Dec. I wish Caldwell had added a section Thomas M. Edwards 23) is a disappointing exception. I sus- about how women are the first sex San Francisco, CA pect that Thomas would agree with the under the law. This situation leaves maxim that the ends do not justify the men in the same predicament as blacks means—except, it seems, when prose- in the 1950s. Men have become second- cuting suspected criminals. class citizens, nominally equal, but sub- THEWEEKLYSTANDARD Regarding the Ornelascase, Thomas ject to bigotry in the law. welcomes letters to the editor. writes that the defendants “consented” One can look to the unequal enforce- Letters will be edited for length and to a search of their car. Consent, as ment of the laws for evidence. For many clarity and must include the writer’s Thomas is well aware, is an exception to crimes, men will receive years in jail, name, address, and phone number. the warrant requirement. Therefore, if but women get a slap on the wrist or are All letters should be addressed: the defendants truly had consented to a not even prosecuted. Look also to Correspondence Editor search, then no legal issue should divorce laws. Both political parties brag remain to discuss. If, on the other hand, about hunting down “deadbeat dads” THEWEEKLYSTANDARD 1150 17th St., NW they did not actually consent to the but ignore mothers who refuse to let the Washington, DC 20036. search, as must have been the case, then children see their fathers. Likewise, what transpired by Thomas’s own when a man is expected to face a woman You may also fax letters: (202) 293-4901. description was the dismantling of a in court, all kinds of special courtroom JANUARY20, 1997 THEWEEKLYSTANDARD/ 7 Iss. 18/Jan 20 log 3/26/02 5:12 PM Page 1 Constitutional Suicide Does the Fourteenth Amendment to the Consti- thing standing between current law and a regime of tution guarantee a right to doctor-prescribed widespread, unregulated euthanasia in America is an poison for mentally competent, terminally ill ad hoc edict by a handful of judges in Washington. patients who want a speedier death? Last year, the Surely we can and must do better than this. nation’s two largest federal circuit courts of appeals, Two possible constitutional rationales for physi- the Second and the Ninth, answered yes and invalidat- cian-assisted suicide are at issue here. One involves the ed felony prohibitions against physician-assisted sui- Fourteenth Amendment’s equal-protection clause, cide in the states of New York and Washington. In cer- which requires state laws to treat similarly situated tain circumstances, these courts people in a similar manner unless said, assisted self-murder must now some legitimate public purpose can be enshrined with life, liberty, and the only thing be cited to justify a difference. New property as a protected right. standing between York’s criminal code makes aiding If this whole idea appalls you— or promoting a suicide illegal. But current law as it certainly should—last Wednes- New York law also allows compe- day morning’s Supreme Court ses- and widespread tent citizens the right to hasten sion offers at least some atmospheric euthanasia their own demise by refusing med- comfort. Attorneys for New York ical treatment and ordering the is an ad hoc and Washington, joined by solicitor removal of life-support systems. So opinion general Walter Dellinger on behalf New York doctors may assist com- of the Clinton administration, were by a handful petent, terminally ill patients who at the lectern to seek reversals of the have suicidal intent so long as of judges appeals court judgments. They did those patients are on a ventilator or in washington. okay. Lawyers on the opposing side feeding tube. But if those patients had a very rough time of it. Seattle’s are not on a ventilator or feeding Kathryn L. Tucker, counsel for the tube, they are denied comparable Washington physician-assisted-suicide advocates, and assistance: a dose of lethal medication. The laws of all Harvard’s Laurence H. Tribe, her counterpart in the 50 states now work roughly this way. And they violate New York case, were both met with bluntly skeptical the equal protection clause, according to proponents of and frequently sarcastic questioning from the bench. physician-assisted suicide. Most of the justices are clearly eager to avoid entan- The risks states usually cite to justify criminaliza- gling the Constitution in this matter. tion of doctor-provided poison—that it will damage Good luck. Given its own misguided Fourteenth the integrity of the medical profession, that it will Amendment rulings, there is no obvious way for the prove difficult to regulate, that it will be used unfairly Supreme Court to decide that physician-assisted sui- against the poor and the handicapped—are as nothing cide is notconstitutionally required. Yes, it seems like- to the “death with dignity” crowd. In a Supreme Court ly that the justices, after fumbling around in their own brief filed on behalf of six self-described “moral and precedential muck, will find a way to vacate the Sec- political philosophers,” Ronald Dworkin explains that ond and Ninth circuit decisions and reinstate the anti- worrying over the possibility that vulnerable patients suicide laws of New York and Washington. It will be a might ever be pressured into suicide is not just unnec- welcome ruling. But it will also mean that the only essary, but wrong. “Even people who are dying have a JANUARY20, 1997 THEWEEKLYSTANDARD/ 9 Iss. 18/Jan 20 log 3/26/02 5:12 PM Page 2 right to hear and, if they wish, act on what others izens, a right to physician-assisted suicide would be a might wish to tell or suggest or even hint to them,” he right to nonvoluntary euthanasia. writes, “and it would be dangerous to suppose that a This due process argument will not be so easy for state may prevent this on the ground that it knows bet- the Supreme Court to dismiss. Laurence Tribe has ter than its citizens when they should be moved by or informed the justices that if their Caseydecision “is to yield to particular advice or suggestion.” remain defensible as a principled explication of pro- Dworkin has elsewhere proposed that the govern- tected liberty,” they must uphold the circuit courts. ment prevent its citizens, for their own good, from Rejecting a due-process-based right to assisted suicide, hearing too much candidate-financed political debate Tribe insists, “would render this Court’s decision in on television and radio. A 30-second ad is apparently Caseyitself vulnerable to repudiation.” He has a point. more dangerous to your health, and less constitution- It is on Casey’s shoulders that the American abor- ally protected, than an insurance agent’s request that tion right now rests. So which will it be, abortion and you kill yourself. Dworkin is a fool. euthanasia—or neither? The Clinton administration But the Second Circuit agrees with him. And were hopes to evade this choice, for plainly political reasons. the Supreme Court ever to accept this interpretation of In his briefs to the Supreme Court, Walter Dellinger the equal-protection clause, all manner of horrors was forced to acknowledge “a constitutionally cogniz- would quickly ensue—as a direct and inevitable conse- able liberty interest in avoiding the kind of suffering” quence of settled law. If there is no constitutionally experienced by people who want physician-assisted significant difference between assist- suicide—an interest that must be ed suicide and the withdrawal of life derived in large part from Casey. support, a right to assisted suicide if there is no At the same time, to protect the cannot be restricted to terminally ill difference abortion right from its own logi- people. Throughout the United cal outgrowth—from the damage between assisted States, the doctrine of informed con- of public association with suicide and the sent grants anyone, not just the termi- euthanasia—Dellinger was forced nally ill, a right to refuse life-saving withdrawal of to argue that states like New York measures. The Second Circuit’s rea- and Washington may entirely ban life support, a soning would grant them an addi- the exercise of this newly identi- right to assisted tional right to poison. And not only fied liberty interest in assisted them. Incompetent patients—infants, suicide cannot be suicide. It’s an odd sort of Ameri- the retarded and mentally ill, people restricted to the can liberty that may never be with Alzheimer’s—would gain simi- enjoyed. It’s a preposterous argu- terminally ill. lar new “benefits.” Most state laws ment. give surrogates and guardians the To get out of this pickle, the authority to end life support to Supreme Court may well adopt incompetent individuals whether or not those individ- some version of Dellinger’s reasoning, to be sure. But uals have ever expressed a desire to die in such circum- the increasingly hideous distortion of American law stances. Poisoning these unfortunates would be quick- by “substantive due process” and the constitutional- er. And legal. ized abortion right will remain. The solution? Eventu- Exactly the same ghastly results would follow were ally, the abortion right must go. In the meantime, we the Supreme Court to accept the second justification must fashion a federal judiciary that is not inclined to for physician-assisted suicide it heard last Wednesday, use substantive due process against common logic, set- this one based on the Fourteenth Amendment’s due tled tradition, and the democratic deliberations of process clause. In its 1992 Planned Parenthoodv. Casey ordinary voters and their representatives. decision, the Supreme Court used “substantive due How? Politicians in Washington like to decry the process” theory in crafting a fundamental right to application of philosophical litmus tests to judicial define “one’s own concept of existence, of meaning, of nominees—litmus tests like the one that felled Robert the universe, and of the mystery of human life.” Last Bork’s appointment to the Supreme Court. “No more year, without much intellectual trouble, the Ninth Cir- Borks,” we’re all supposed to say. Baloney. The Four- cuit decided that this liberty includes the right to con- teenth Amendment is out of whack. Lives now depend trol “the time and manner of one’s death”—and that a on its correct interpretation. A Republican Senate ban on physician-assisted suicide could not survive reviewing Democratic judicial nominees must finally constitutional scrutiny. Since state courts generally take off its dainty white gloves and press this point establish that incompetent citizens, through their home hard. Bork away, gentlemen. guardians, must have the same rights as competent cit- —David Tell, for the Editors 10/ THEWEEKLYSTANDARD JANUARY20, 1997 Iss. 18/Jan 20 log 3/26/02 5:12 PM Page 3 Newt, Now More Than Ever bitterness at the Re- publican refusal to buckle under to the by William Kristol assault on the speak- er reveals the terrible ON NOVEMBER 8, 1994, Republicans under the truth: Tuesday’s vote was potentially a huge defeat for leadership of Newt Gingrich ended decades of the American Left. Accustomed to winning through Democratic congressional dominance. On the media and the “ethics process” what it has failed to November 5, 1996, Republicans held on to Congress achieve at the ballot box, the Left finally met with and so strengthened their claim to be the new majority resistance—and successful resistance at that. Andrew party. And on January 7, 1997, Republicans overcame Sullivan in the London Sunday Times, who correctly Democratic efforts—as well as their own fears—and denounced the anti-Gingrich scandal-mongers as a reelected Gingrich speaker of the House. “lynch mob,” pointed out that it would be a “perfect This last may yet prove to be the date that confirms irony” if Gingrich—“one of the least sleazy politicians the significance of the first two. January 7 may be in America” and the man who bore on behalf of his remembered as the moment when the Republican par- entire party the unpopularity that comes from trying ty showed that it was a serious party, unintimidated by to achieve real reform—were to fall. Serious political the opposition, uncowed by the media, willing to movements do not tolerate such irony. The fact that stand the heat that radiates from any effort to reshape House Republicans were willing to stick with their American politics. leader suggests that we may now have a serious politi- Some in the GOP sought to talk primarily about cal movement on the right, and that we may indeed be Gingrich’s merits as speaker, which missed the signifi- entering a new political era. cance of last week’s vote. Thus, in an otherwise sound Or maybe not. If January 7 turns out to be a mere defense of his old friend in the Wall Street Journal, Jack one-time rallying of the troops; if Republicans imme- Kemp went out of his way to make the case for Gin- diately revert to psychological and political defensive- grich as a “progressive conservative.” Kemp explained ness; if they wait with fear and trembling for the next that supporting Gingrich was “not a matter of closing shoe to drop in the Gingrich case; if they dignify the ranks,” but rather of selecting the best leader. Yet if “ethics process”with concern and treat false “revela- your leader is under unfair and vicious attack, it is, tions” such as a tape recording leaked to, and dutifully and ought to be, precisely a matter of closing ranks. made a front-page story by, the New York Timesas any- That’s what House Republicans did last week. And it thing but comic—then last week’s impressive display proved inspiriting. of spine will have been for naught. If they get rattled It was hostile reporters, more than many Republi- when the special counsel’s report is unveiled and con- cans, who understood this. Francis X. Clines of the tinue to dread the putative electoral cost of their sup- New York Timescould not help but be impressed by the port for the speaker (in an election 22 months off), whoop that went up from the victorious side after the then January 7 will turn out to have been merely a votes were counted. He described it as “echoing all the delay in the “inevitable” downfall of Gingrich. We will way from the tribal conflicts of prehistory with the then know that the Republican party is still, in its true meaning of partisan zeal.” Clines waxed Homeric: heart, the party that knows it is bound to lose. “On their feet, roaring with victory, the Republican The next few weeks are key. Here is what Republi- majority of the 105th Congress successfully defended cans should do: They should treat the Gingrich case as Newt Gingrich today as Speaker and saluted him with settled. They should repeat again and again the core a joy that sounded visceral, as if he had routed a band truth that the premise of the ethics assault is ludi- of bandits at the edge of the tribal water hole.” Gin- crous—that Gingrich’s course is no more partisan than grich had. most college courses and that his alleged misrepresen- Walter Shapiro described the vote in USA Todayas tations are trivial. They should treat the release of spe- “the political equivalent of The Charge of the Light cial counsel James Cole’s report with insouciance and Brigade. Cannon to the left of them, cannon to the the media’s agitation with disdain. They should insist right of them—and still the Republicans stubbornly on a speedy disposition of the case and vote for a slap marched into the 105th Congress with their banner on the wrist, without apology and without anguish. If and their heads held high.” Exactly so. Except Repub- they do all this, they will find the crucible of the Gin- licans, unlike the British in the Crimean War, can grich vote to have been a strengthening, rather than an win—if they keep their nerve. enfeebling, experience. Al Hunt of the Wall Street Journal contends wish- For the loyalty his troops showed him, Gingrich fully that Gingrich’s victory was “Pyrrhic.” But his now owes something to them: leadership. A certain JANUARY20, 1997 THEWEEKLYSTANDARD/ 11