This article summarizes the findings of this study, also discussed here. Much of the decline from 1992 to 2003 is likely due to immigration, but there are still some startling findings about higher education, discernible in these tables (numbers 11 and 12). Note that in 2003 17% of college graduates scored at basic or below in prose literacy, while only 31% scored as proficient, a 9 point decline since 1992. Also in 2003, 11% of those possessing graduate degrees scored at basic or below, while only 41% scored proficient, a 10 point decline since the last survey. These standards are not high: "proficient" is defined as the capacity to "compar[e] viewpoints in two editorials"; basic literacy requires the ability to read a pamphlet, below basic the capacity to sign a form. As Mark S. Schneider, Commissioner of Education Statistics, put it, "What’s disturbing is that the assessment is not designed to test your understanding of Proust, but to test your ability to read labels."

I had meant to blog on this piece by Victor David Hanson when it first appeared, but was on the Grand Family Christmas Tour. Anyway, it’s worth our attention now, since last week’s discussions of wiretaps brought repeated reference to the precedent of Abraham Lincoln.

The entire op-ed is worth reading (and it’s brief), but his point is that wartime presidents like Lincoln and FDR were able to build consensus by appointing some of their political opponents to important positions. He notes that three recent critics--John Murtha, Richard Clarke, and Wesley Clark--could all have remained friends of the administration had they been given a respectful hearing:

To all our Jewish readers !

Among the documents released by the National Archives yesterday was this collection of memos (Alito’s is the first, roughly seven pages in length), regarding this case. The issue involved Nixon Administration Attorney General John Mitchell’s immunity in a lawsuit filed regarding warrantless wiretaps he authorized in 1970. You can read the coverage in the major dailies here, here, here, and here.

At least two of the articles outrun the facts they’re reporting. The LAT reporters characterize the wiretaps authorized by Mitchell as simply "illegal," though, as they later note, "Mitchell escaped liability because the justices concluded that the law was not clear in 1970 when he ordered the wiretap." The NYT reporters characterize the argument Alito and the Reagan Administration were making as that "top officials were free to violate the law." This, of course, isn’t quite accurate: freedom from personal financial liability in lawsuits isn’t the same as the kind of carte blanche Mel Brooks claimed as Louis XIV in History of the World, Part I.

Democrats have of course leapt on this case, trying to link it to the electronic surveillance conducted by the NSA after 9/11.

"At a time when the nation is faced with revelations that the Administration has been wiretapping American citizens, we find that we have a nominee who believes that officials who order warrantless wiretaps of Americans should be immune from legal accountability," said Sen. Edward M. Kennedy (D-Mass.).

To which there are several responses, such as this:

But Alito supporters noted that the memo does not defend the practice of warrantless eavesdropping, instead dealing only with the question of whether government officials who often must act quickly can be sued for damages when they err. Nor did the memo deal with the question of whether a warrant was necessary to investigate foreign threats.

"Despite Democrats’ attempts to link this memo to reports of NSA activities, the two have nothing to do with each other," said White House spokesman Steve Schmidt.

And this, from the WaPo article:

[T]he argument that the president and his top aides were entitled to absolute immunity was not a new one.

The Carter administration had taken that position in wiretapping cases stemming from the Watergate scandal, but the issue had not been clearly resolved by the Supreme Court.

And, finally, this dictum, from the majority opinion in Harlow v. Fitzgerald, cited by Alito in his memo:

For aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy, absolute immunity might well be justified to protect the unhesitating performance of functions vital to the national interest.

On June 9, 1941—six months before the Japanese attack at Pearl Harbor that would bring the United States into the Second World War—President Franklin Roosevelt issued an executive order seizing an aircraft manufacturing plant operated by North American Aviation, Inc. in Inglewood, California. The seizure was necessary, wrote President Roosevelt, in order to prevent a strike by union employees from crippling aircraft production that was vital to the national defense. No act of Congress authorized the seizure, and the existing procedures for condemnation of private property were not followed, making President Roosevelt’s actions technically “illegal.” President Roosevelt also imposed 48-hour work weeks and barred payment of double-time pay for weekend and holiday pay in the nation’s manufacturing plants, all by executive order and in violation of the Fair Labor Standards Act, because he deemed the actions necessary to the nation’s war effort.

A decade later, on April 8, 1952, President Harry Truman ordered the seizure of the nation’s steel mills in order to avert a strike that would cripple the steel production necessary to our military involvement in Korea. Like Roosevelt before him, Truman’s order did not comply with the statutory requirements for condemnation of private property. Unlike Roosevelt’s actions, though, Truman’s seizure order was challenged all the way to the Supreme Court, which ultimately held in Youngstown Sheet & Tube Co. v. Sawyer that none of the President’s constitutional powers—as chief executive obligated to take care that the laws be faithfully executed, or as commander-in-chief—were sufficient to sustain the seizure. Justice Jackson, in a landmark concurring opinion, found “alarming” the claim that the President could “vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.”

Sentiments such as Justice Jackson’s now serve as the foundation for the claims of “illegality” being leveled against President Bush in the wake of the disclosure in last Friday’s New York Times that the President has authorized eavesdropping on international calls originating in the United States to Al Queda operatives abroad. The President’s order “violated” the requirements of the Foreign Intelligence Surveillance Act, and was therefore “illegal,” assert the President’s detractors.

Before accepting such contentions, it is worth exploring a bit more the subtle nuances of Justice Jackson’s opinion, for he did not say that the President was not without authority absent statutory authorization. Obviously, the President’s authority is at its peak when he acts both pursuant to his own authority under the Constitution and by virtue of additional statutory authority given to him by Congress. Less strong, but no less certain, is when the President acts by virtue of his own constitutional powers, in the face of congressional silence. Finally, Justice Jackson even conceded that, at times, the President could act pursuant to his Article II constitutional powers even contrary to an explicit act of Congress. Congress cannot pass a law that curtails powers the President has directly from the Constitution itself. The problem for Truman, according to Justice Jackson, was not that he exceeded statutory authority, but that his constitutional war powers did not, under the circumstances, permit him to trump the mechanisms of the relevant congressional statute. Congress had not authorized the war, and the nation’s steel mills were too far removed from the “theater of war” to fall under the President’s power as Commander-in-Chief.

A careful review of the Youngstown holding in general, and of Justice Jackson’s concurring opinion in particular, yields several important distinctions that vindicate President Bush’s latest actions in the war against terrorism. First, Congress has authorized the use of force in terms broad enough to permit the President’s actions. The Supreme Court has already held in the Hamdi case that the statute was broad enough to give the President authority to detain U.S. citizens as enemy combatants; surely it is therefore broad enough to serve as authority for the much lesser intrusion on personal liberty at issue with surveillance of international calls made to our enemies.

Second, as September 11 made very clear, the United States is a “theater of war.” The agents of our stateless, terrorist enemies are here on U.S. soil, aiming to strike at our infrastructure, our citizens, and our very way of life at every possible opportunity. Even if the Use of Force Authorization was not sufficient to sustain the President’s executive order, his own powers as Commander-in-Chief and as President, derived directly from the Constitution itself, permit this carefully circumscribed effort at thwarting the next devastating terrorist attack against our nation.

In other words, the President’s legal advisors were correct in counseling that these actions were within his lawful constitutional authority, and the quick claims by the President’s detractors of “illegality” have a stench of political opportunism or, worse, demagoguery about them that is not only inappropriate but dangerous in time of war. That this war has not produced the burdens on our civilian population as wars in times past—we know nothing of the sacrifices of rationing, of a large-scale draft, or of victory gardens and war bonds that were the hallmarks of the Second World War, for example—should not lead us to forget that we are in a war as dangerous to our survival as a free people as any we have faced.

Ken Masugi conducts a fascinating interview with Father James V. Schall, S.J., in which they range widely over many topics (disasters, Tolkien, liberal education, to name just a few). By the by, Schall offers this implicit response to those who distinguish in too facile a manner between science and religion:

Both theology and philosophy seek to know the whole of things, including divine and human things. Their paths may be different, but they cross here and there. Just because they have two different methods and starting points, they do not deal with two different worlds. Rather there is one world and all that is in it, a world that need not exist at all. This latter implies a cause of existence that need not create the world from some necessity in Himself.(My emphasis.)

Stated another way, the alternative to Schall’s position (that if the world isn’t necessary, then there is a cause that creates it) is that the world is its own cause. Either there is a "God" (about whose relationship with and love for us this argument doesn’t give us many details, certainly not enough to identify this "God" with the God of the Bible) or, in effect, "the world," being its own cause, is "God."

I’m glad to hear that at least one conservative aside from myself is bothered by recent relevations. "Why didn’t he ask Congress" is the question asked today by George Will. Will notes that the administration has defended its surveillance tactics under the president’s traditional "plenary" powers to engage in "military actions." Fair enough, but who gets to decide what the term "military actions" encompasses? Surely, had Bush gone to Congress in 2001 or 2002 and asked for authority to tap phones without a court order he would’ve gotten it. Why didn’t he? The answer, Will suggests, has something to do with "this administration’s almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled." A strange attitude to take toward a Congress dominated by his own party, is it not?

You can read the long opinion in the Dover I.D. case here. Or you can just read this AP report. Those with a more voracious appetite for information can go here (the Discovery Institute’s Dover page) and here (the National Center for Science Education’s Dover page).

My piece on the Cobb County (GA) textbook sticker case will be posted at The American Enterprise Online tonight. (You know you can’t wait.)

Update: Here’s my TAE Online piece.

The best pieces I have read on the NSA/FISA issue are here (Byron York on the cumbersome FISA warrant process), here (Bill Kristol and Gary Schmitt on energy in the executive), here (Hugh Hewitt on some of the caselaw), and here (Orin Kerr’s careful examination of almost all the arguments and the caselaw).