The Advocate:

I am now going to occupy a position that is, ironically in this case, called the Devil's Advocate. I'm doing this in order to see that an honorable opponent is fairly treated, though I strongly disagree with the case he is making. Those of you who are no longer interested in the subject of Roy Moore or the Ten Commandments monument may skip on to other things. Those who are, but wonder what my actual position on the matter is, can find it starting here and finishing here.

With that said, I'm now going to treat Sovay McKnight's discourse on the Ten Commandments. She has a pretty good roundup of the legal reasoning behind the current Supreme Court thinking on religious symbols. She winds up:

The Alabama district court was right to rule the way it did. Any way you look at it, the law prohibits Roy Moore's Ten Commandments from being placed in the Alabama State Judicial Building in their present form. Now, you're welcome to try and repeal the Fourteenth or First Amendments, it's a free country after all, but until that's done, the courts are going to keep on ruling against Moore.

Now, I am all for repealing the Fourteenth Amendment, or rather, recognizing that it was never legally ratified in the first place. It has no place in the Constitution, having been put there illegally and improperly, and it is incompatible with the Classical Liberal foundations of this country. Unfortunately, though all of that is true, to date the people who have argued on behalf of that truth have been doing so for dishonorable reasons, with the result that the argument has become tarnished by their participation in it. Nevertheless, someday the 14th will face organized opposition from honorable men, and we will bring it down.

However, the repeal of neither the First nor the Fourteenth Amendments are necessary to Justice Moore's position. All that is necessary is a different understanding of them--and it happens that the different understanding of them is the proper understanding. I will demonstrate why, and then I will argue against her conception of Justice Moore himself, which I think is both unfair to the man, and also underestimates the danger his case poses.

First, it should be said that Justice Moore disagrees not merely with the Lemon test, but with the entire legal tradition that supports it. His challenge isn't to the US Supreme Court, but to Jefferson, as he himself says:

They have trotted out before the public using words never mentioned in the U.S. Constitution, like "separation of church and state," to advocate, not the legitimate jurisdictional separation between the church and state, but the illegitimate separation of God and state.

"Separation of Church and State" is, we all know, taken from one of Jefferson's letters on his understanding of what ought to be the way the government functioned. It is not in the Constitution, as Justice Moore correctly points out. Furthermore, it was far from a unified position among the Founders, many--perhaps even most--of whom felt that religion was not separable from government. The 1st Amendment's statement that Congress would "make no law respecting the establishment of religion" meant to most of the Founders that Congress could not establish an official state Church, the way that England, Scotland, Ireland, and generally every other nation of the day had done. It was intended to allow for the "free exercise" of all religions. Jefferson's formula, which has become our own, was unusual and has only the force of intellectual argument to defend it, not Constitutional standing. A future Supreme Court could simply decide to hold that the First Amendment means what the other Founders thought it meant; the repeal of the First is not necessary.

When Justice Moore makes his argument that the First Amendment prevents only Congressional action, and that he "is not Congress, and no law has been passed," he is invoking that alternative understanding. It has as long a history and as respectable a pedigree as the one that forms the basis of the Supreme Court's current understanding. There is, honestly, nothing except the composition of the US Supreme Court to prevent it from becoming the new law of the land. Keep that point in mind--we will return to it.

The second point has to do with Justice Moore's invocation of the Alabama Constitution:

We must acknowledge God in the public sector because the state constitution explicitly requires us to do so. The Alabama Constitution specifically invokes "the favor and guidance of Almighty God" as the basis for our laws and justice system. As the chief justice of the state's supreme court I am entrusted with the sacred duty to uphold the state's constitution. I have taken an oath before God and man to do such[.]

Here the argument against Moore is, essentially, that the Alabama Constitution doesn't count. That argument follows this form:

1. The First Amendment prevents any Federal government action from including religious content.
2. The Fourteenth Amendment requires that state government actions comply with that prohibition as well.
3. Therefore, the Alabama Constitution can't invoke God.

On first inspection, the argument against the Alabama Constitution's language seems stronger even than the argument against Justice Moore's monument. The Alabama Constitution is a law, after all, even if the Justice is not. But a Constitution isn't a law like other laws. The First Amendment can't apply to Constitutions, as it lacks the standing to tell the People what they can do; it can only apply to the people's representatives. A Constitution draws its authority directly from the people, who ratify it as the basic law of the land. It is through that process that the limits of government authority are drawn, and it is through that process that they are changed. The Alabama Constitution has been ratified by the people of Alabama, not created by the legislature of Alabama. The First Amendment speaks to Congress; even if you accept the 14th Amendment, it speaks to legislatures.

No Constitution, though, can set limits on the People. Constitutions lack the standing: all government lacks the standing. No governmental body--not a legislature, not an executive, not a court, not the Supreme Court--can tell the People what they can and can't put in a Constitution. No Constitution can set limits on future constitutions. This is because all government power is descended from the will of the People. Constitutions are only the codification of the more permanent parts of that will. The right of the People, acting as a whole, to set the powers and limits of government is the very basis of Classical Liberalism. It is the basis of the United States of America and the American way.

That is to say: if the People wish, they can invoke God in their Constitution, and no governmental body can tell them otherwise. All such bodies are bound by the fact that they are themselves creatures of the will of the People. They are not superior to the will of the People, and they can set no limits on it. A government can, and does constantly, tell an individual person what that person can do or is forbidden from doing. No government can legitimately tell the People what they can do, or are forbidden from doing. That is Classical Liberalism in "sixteen words," if you like.

Sovay says that Roy Moore is acting out of a desire for personal glory and power. I think she terribly misreads him. I think Justice Moore is acting out of a deep personal belief that the founding principles of this country are being ignored, and that his pursuit of power is a means to the end of correcting the course of American government as a whole. Yes, he has set up this Ten Commandments battle precisely in order to have a fight. The fight he wants to have, though, is not about the presence or absence of a monument, but about the nature of government itself.

I will recall the reader's mind to the statement that only the composition of the Supreme Court, not the 1st or 14th Amendments, stood between us and a reading of the law that permits Justice Moore's ideas from being accepted as right and proper. That is where this is all going. Justice Moore is positioning himself to build and lead a movement to return America to an understanding of government that he thinks is the correct one. It is not going to stop with any court ruling, and it isn't going to stop in Alabama. What you are seeing is the beginning of a groundswell that will command attention far beyond the borders of the Old South. If it is to be combatted in the long run, you can't simply tell people what the Supreme Court says the Constitution says. They know already. They disagree, and they are prepared to do what it takes to change it. If you're going to win the war of ideas, you need to be prepared to defend the Jeffersonian tradition on the merits. Remember that their tradition is just as old, and if anything had more support among the Founders than does the Jeffersonian tradition that we defend. They can't be dismissed as quacks or gloryhounds: the power and depth of their argument demand a full reply.

Furthermore, remember that their understanding of the limits of government power is not only defensible, it is correct. The government has greatly overstepped its bounds, and is therefore off balance. When this groundswell has built to the point that it is ready to challenge the orthodox reading of the First Amendment on a national scale, it is going to be very hard to combat. Much of its power will come from the fact that previous defenders of Jefferson's reading have overstretched, ignored the right and proper limits on government power, and otherwise acted against the vision of what our Republic was founded to defend: that vision of a government which draws its power from the People, and is created and in thrall to them. When these angry men come in their regiments, to challenge in Congress and from the statehouses and benches that orthodox reading, they will be powerful because, on very many questions, they will be right.

Zabul:

On the day when Jihad Unspun first announced that the Taliban had recaptured Zabul province, I speculated:

What does this mean for the coalition? One thing it could mean is that we are seeing a large-scale trap on the lines of Operation Anaconda. In Anaconda, an area in Taliban control was left safe while guerrillas gathered, then surrounded and brutally wiped out. Allowing them a province as a rallying point could cause a draining away of pro-Taliban forces elsewhere. The appearance of success could also cause the supporting ISI members to overplay their hands, making them easier to identify.

It appears that was precisely the case. Having been allowed to gather undisturbed in Zabul, the Taliban now find themselves hunted through the passes. Escape is denied them by a massive Pakistan-US joint operation to close the border. Their supporters in the Pakistani Army--and perhaps the ISI as well?--are being arrested in an FBI-Pakistan joint operation.

To the Princes who planned this operation: I salute you. It was manfully done.

Sweet and Proper:

A sign from outside a Southern military base. This demonstrates two things that I think are worth demonstrating: first and least important, that there need to be answers to these conflict-of-interest questions regarding the Iraqi reconstruction; and second, but most important, that military men are far more intelligent, thoughtful, and well-educated than is commonly understood. "We don't pay you to think" is perhaps the most common cliche in the media's depiction of the military lifestyle. Well, whether or not they're paid to think, they still do. Many of them are more properly grounded in classical education than their supposed betters in Academia.

Hat tip to the Agonist, who I've just added to the links section. This site has noted him before, often enough that it seems right to include him.

Neoconservatism:

This is a topic we've all heard about lately. But what is the test for whether someone is or isn't a neocon? Well, if that question has come to you from time to time in the last year, here is the answer: The official Christian Science Monitor "Are you a Neoconservative" Quiz.

This page is not, of course, given over to neoconservatism, or conservatism generally. This is a Classical Liberal page, which only appears conservative to many readers because it is Classical Liberalism that is the foundation of our American society, and it is therefore Classical Liberalism that most American conservatives are trying to conserve. If you are interested in how your correspondant ranked according to the quiz, however, here:

Realist

Realists�

*Are guided more by practical considerations than ideological vision
*Believe US power is crucial to successful diplomacy - and vice versa
*Don't want US policy options unduly limited by world opinion or ethical considerations
*Believe strong alliances are important to US interests
*Weigh the political costs of foreign action
*Believe foreign intervention must be dictated by compelling national interest

*Historical realist: President Dwight D. Eisenhower

*Modern realist: Secretary of State Colin Powell

Of course there was no category for Classical Liberal, just as there never is for Southern Democrat. We are a forgotten minority, albeit a well-armed one.

Afghan war:

There continue to be interesting reports from southeastern Afghanistan. One of them, at least, is almost certainly false: that Talibani beheaded six American fighters. That report is from Jihad Unspun, a pro-al-Qaeda site that normally produces falsehoods. As I note below, JUS rather remarkably scooped the rest of the world in reporting the Taliban uprising and reconquest of parts of Zabul province. It's nice to see them returning to form.

Meanwhile, Coalition forces have resumed hunting in the mountains of Zabul province, which border the tribal regions of Pakistan. Interestingly, Pakistan is making moves on the southern side of the same ridges:

Separately, at least 24 Pakistani military helicopters swooped in low over the tribal regions that border Afghanistan in a renewed hunt for fleeing al-Qaida and Taliban, witnesses said Thursday.

Government officials, who spoke on condition of anonymity, said several of the helicopters carried "foreign" forces, an apparent reference to U.S. troops.

The U.S. military earlier deployed an unknown number of special forces into Pakistan's rugged tribal regions[.]

DPA reports (no link):

Pakistan rushed extra troops to Afghan border on Wednesday amid speculation that a ``get Osama bin Laden'' operation was about to be launched, a news report said on Thursday.

Pakistan's foreign minister spoke to this issue yesterday, denying reports that bin Laden was in Pakistan, but saying that he felt that: "To me, time, space and options are becoming limited by the day for Osama and all those linked to him." We will see if that proves to be more than bluster. Again today, it looks like Zabul remains the most interesting place on Earth.

State Dept. Whistles Past Graveyard:

The Kansas City Star has a report from the talks on the DPRK's weapons program, entitled "US Optimistic on North Korea Talks." An excerpt:

The State Department said Tuesday a strong consensus emerged at last week's six-nation meeting in China that North Korea should end its nuclear weapons program and that more multilateral talks were needed to bring about that goal.

Spokesman Richard Boucher said Secretary of State Colin Powell was not surprised by a "belligerent" North Korean attitude at the discussions.

Now, I suppose if you're a diplomat, it's bad form to say after the first day of talks that there is no hope and the talks have failed. Couldn't we, though, at least restrain ourselves to "cautious optimism," given the DPRK's response?

North Korea has said it has no choice but to increase its nuclear deterrent following multilateral talks in Beijing.

The statement, made by a North Korean Foreign Ministry spokesman, also said Pyongyang is not interested in holding any more talks on the future of its controversial nuclear programme.

Scoop!

James Taranto has this today:

Our Friends the Saudis
In a report on Gerald Posner's new book, "Why America Slept," Time magazine relates this anecdote about Abu Zubaydah, an al Qaeda terrorist who has been in U.S. custody since March 2002:


When questioning stalled, according to Posner, CIA men flew Zubaydah to an Afghan complex fitted out as a fake Saudi jail chamber, where "two Arab-Americans, now with Special Forces," pretending to be Saudi inquisitors, used drugs and threats to scare him into more confessions.

Yet when Zubaydah was confronted by the false Saudis, writes Posner, "his reaction was not fear, but utter relief." Happy to see them, he reeled off telephone numbers for a senior member of the royal family who would, said Zubaydah, "tell you what to do." The man at the other end would be Prince Ahmed bin Salman bin Abdul Aziz, a Westernized nephew of King Fahd's and a publisher better known as a racehorse owner. His horse War Emblem won the Kentucky Derby in 2002. To the amazement of the U.S., the numbers proved valid.


As we noted last year, Aziz died at 43, a few months after Zubaydah's capture, part of a curious string of deaths of youngish Saudi princes.

You, good reader, got this bit of analysis on Sunday. Of course, Taranto has been on vacation, so there was a bit of a handicap. Still, it's good to get out in front sometimes.

More on Zabul:

Zabul must be the most interesting place on Earth just now. Some of this is probably true, but it's getting very hard to tell which parts:

Taliban Reinforces Fighters. This is from Reuters Asia.

Afghan Gov't Enters Separate Negotiations with Taliban. This is from the Afghan Islamic Press, but has been carried in both Iran and Saudi Arabia. The Saudi version is the most complete, and says that the Zabul negotiations may include an amnesty for Taliban. Al Jazeera, on the other hand, has the government denying such talks.

FBI Arrests Pakistani Army Officers in Zabul Province, Afghanistan. A big story if it's true. Also from al Jazeera.

Bin Laden holds Terror Summit in Afghanistan. This report is from the Scotsman, which is an uneven source. When they do original reporting by their own writers, they tend to be highly accurate and detailed. Many of their stories are just wire-stories, though, so the fact that something appears in the Scotsman doesn't make it so. This report appears to be drawing on other sources, but it is worth reading.

Zabul:

Pro-al-Qaeda website Jihad Unspun has a report from Zabul province. JUS is a very suspicious source, and indeed, mostly they report lies or outright inventions. However, they were the first to get the fall of Zabul to a resurgent Taliban, well before any mainstream news agency. Keep those two facts in mind as you read their take.

Ledeen:

Michael Ledeen writes in today's NRO about the Najaf bombing. He agrees with the CNN report that put Mugniyah in Iraq, which posits a Hezbollah-Qaeda union in Iraq. But he goes beyond that report, and places the blame for Najaf squarely on Moqtada al-Sadr, who is, he says, the head of Hezbollah in Iraq.

My sense of al-Sadr has been that he is the Jesse Jackson Jr. of Iraq, using his father's name and some semi-bogus religious "leadership" to shakedown the CPA with threats of a Shi'a uprising. It is certainly true that Najaf put al-Sadr in the #1 spot among vocal Iraqi Shi'ites. I'm not ready to condemn him yet, but there are some serious questions here he'll need to answer. It would be nice if some of those in the newly independent Iraqi press started to ask them.

From Yemen?

Via InstaPundit, two car-bomb attacks have been prevented by Iraqi police. Details are sparse, but there is one very interesting point: the drivers of yesterday's car were said to be from Yemen. That makes them exactly the kind of non-Iraqi "Arab nationals" under threat by the Najaf militia.

...and a Georgia Overdrive:

Some poetry in honor of Labor Day:

I.C.C. is a-checking on down the line.
Well, I'm a little overweight and my log books way behind.
But nothing bothers me tonight, I can dodge all the scales all right,
Six days on the road, I'm gonna make it home tonight.

Well, my rig's a little old, but that don't mean she's slow.
There's a flame from her stack and the smoke's blowing black as coal.
My hometown's coming in sight, if you think I'm happy, you're right,
Six days on the road, now I'm gonna make it home tonight.
Six days on the road, now I'm gonna make it home tonight.

The Taliban Regroup:

The Sydney Morning Herald reports on the regrouping of the Taliban in Pakistan. Last week more than eighty were killed in fighting in and around Zabul province, the one that the Taliban claim to control.

Bush Lied, Soldiers Died:

This line has been around for a while, and I find that it seriously makes me angry. I don't like to talk about things that make me angry, as I try to treat all arguments fairly, and anger can cause you to do or say things that aren't rational.

I'm not sure it's rational, for example, to be outraged by Buzzflash selling postcards with casualty figures from Iraq. I'm sure their reasons for this are wholly--what? Political, I think. You get the sense that the only reason they care about the men who've died in Iraq is that it is a stick with which they can beat Bush. Does Buzzflash realize how this looks to an ex-Marine? Do they care? I somehow doubt it.

Then there's Eschaton, who features this line as part of his header. Now, I've got nothing against the fellow. He's a bit shrill in his tone, and is a bit quick to resort to insults and name-calling ad hominem attacks in lieu of argument. I've glanced back over his archives for a bit, in order to be sure I was being fair to him. I think I can honestly say that he's got nothing against the military per se, except that there are disproportinate numbers of conservatives in it, and he finds conservatism to be viscerally objectionable. Still, I think he's usually fair to the military, as shown by this bit on the sensitive subject of Afghan civilian casualties:

One need not feel that the war in Afghanistan has been unjust or inappropriate, or that our military was callous or indscriminate in its choice of targets, or to "Blame America," to think that these indirect victims of the events of 9/11 deserve some consideration. Their deaths were a direct result of the events of 9/11, and the blame can be placed on those who planned and implemented the mass murder on that day.

The fact that some civilian casualties are an inevitable consequence of almost any military action does not make the deaths less tragic. Nor does my mentioning them imply that I am elevating the importance of their deaths above those Americans and non-Americans who died on 9/11. They are, however, also victims of 9/11, even if their deaths came later and their stories are not often told here.

I think that's very well said. As a result, my sense that he wouldn't really care about the lives of US soldiers and Marines if it weren't a political stick for the thing he does care about--beating Bush--is perhaps unfair. I can't find that he ever remarked on US military casualties in KFOR, for example, or in Afghanistan previous to the development of the "Bush Lied, Soldiers Died" line of thought. On the other hand, casualties in both cases have been quite light for coalition forces. You get the sense from reading Eschaton that he wouldn't like military men personally, and some of the permanent links on his page are to anti-American sites (this one in particular, which asks for volunteers to help research crimes by the US government). I don't wish to hold him too tightly to responsibility for that, though. Eschaton himself addressed those issues fairly, as above, so probably his interest in these matters is equally genuine.

Would it be right to ask the fellow to stand down from this line, then, just because others on the further-Left have used it to bludgeon without regard to the feelings of those who have stood to serve? I do not mean to make him stand down, which is plainly improper: merely to ask him to do so, as a courtesy. I have a sense that it might be, for the same reason that we Southerners have been asked to please avoid playing "Dixie" in public places; and indeed, we have largely done so. I haven't heard "Dixie" played openly in years, which in one way is a shame as it's a beautiful song: and yet I fully understand the reasons. Is it too much to ask that other good hearted folk avoid adopting the symbols of extremists?

House Cleaning:

This is what InstaPundit is calling a bombshell, from TIME magazine. It is the story of how Zubaydah, captured al-Qaeda strategist, implicated Prince Ahmed bin Salman bin Abdul Aziz of the House of Saud as a key figure in al Qaeda's support structure.

TIME says that Zubaydah was captured on 28 March 2002. What it doesn't say is that Ahmed bin Salman was dead by July:

[L]ife expectation among the Saudi Royal Family has taken a sudden turn for the worse. Three princes have died within a week: on July 22nd, Prince Ahmed bin Salman bin Abdul Aziz (owner of the champion racehorse War Emblem) had a fatal heart attack at the age of 43; on July 23rd, Prince Sultan bin Faisal bin Turki al-Saud, 41, died in a car accident on the way to the funeral; on July 29th, Prince Fahd bin Turki bin Saud al-Kabir, 25, was found dead in the desert from "thirst."

So--did we kill him, or did the Saudis take care of it themselves? I'd bet on the latter, or a joint action. It's pretty clear that the Saudi government is shaking itself out. If there are terror-supporting elements--and all indicators say that there are--there's also a real effort among those who can read the tea leaves to purge those elements. The future isn't with al Qaeda, and the lords of Arabia know it. Not surprisingly, clerics in Arabia are falling in line.

The General Militia:

It's always good to see a genuine, Classical Liberal idea at work in US policy. This time the rumors are from Canada, where there are reports that the US government may accept the formation of Iraqi militias to secure the cities.

This is a good idea, as I argued last week. However, this is not the first time I've argued in favor of it: I also liked the idea back when the Marines were in Saddam city, now al-Sadr city; and when US Army soldiers were first dealing with Iraqi weapons.

General militias are effective at instituting order in a way that no other form of administration is or can be. Free men, moving about the communities in which they live and work, know when something unusual is going on. Just as free citizens in those parts of the United States that recognize the 2nd Amendment keep order whether or not there are police about, so militias in Iraq would keep order against "Arab nationals" who had come to stir up trouble.

Indeed, against a group like al Qaeda, the general militia is the most effective response. It turns the entire state into a hard target, and every place terrorists go to strike they find themselves outgunned and outmanned by the decent and the law abiding. Just as the "General Militia of Flight 93" stood up in an instant to put an end to the plot to destroy the White House, and the folk of now-Sadr City hunted and slaughtered their tormenters to the last man, so the enraged Shi'ites of Iraq have a right to stand up and drive the killers from their midst. It is their nation, and if we want it to be free and strong, we have to help them in taking command of it. Follow the Marines' example: it is time for the General Militia of Iraq.