Author Interview: Dale Carpenter on 'Flagrant Conduct: The Story of Lawrence v. Texas'

Speaking at a book forum sponsored by the Cato Institute on March 16, 2012, Washington Post editorial writer (and former Supreme Court reporter) Charles Lane said the “true importance” of the 2003 high court decision in Lawrence v. Texas “is as a cultural milestone” and that it reflected how the country’s “zeitgeist had radically shifted since 1986,” the year of Bowers v. Hardwick, a decision that upheld Georgia’s sodomy law and which was overturned by Lawrence 17 years later.

Lane was responding to comments by University of Minnesota law professor Dale Carpenter, who was presenting his new book, Flagrant Conduct: The Story of Lawrence v. Texas. For his own part, Carpenter compared the Lawrence decision, in its effect on the lives of gay and lesbian Americans, to Brown v. Board of Education and its effect on African-Americans and race relations.

After his presentation, Carpenter talked to me about his book, what he learned in his research, and the larger impact of the Supreme Court’s decision now and in the future.

Carpenter, who teaches courses in constitutional law and sexual orientation and the law, began writing Flagrant Conduct more than eight years ago. Its first form was an article for the Michigan Law Review (which he describes as “a microcosm of this book”) that ended up in the hands of a senior editor at W.W. Norton and Company, who suggested he turn the article into a book and eventually published it.

Dale Carpenter

Writing the book required “quite a bit of legwork and research,” including dozens of interviews with people involved with the case, from the officers who arrested John Lawrence (whose name is in the case title) and Tyron Garner to law clerks and prosecuting attorneys, gay-rights activists in Texas, and, finally, Lawrence himself, who granted Carpenter his only interview about the case and its circumstances, just six months before he died.

Their meeting, Carpenter said, “was emotional.”

U.S. Navy veteran Lawrence, he explained, “never got a trial. He never got to talk about his side. He never got to tell his story and” talking to Carpenter “was his chance finally to tell his story when he knew he was in poor health and would not live long.”


No sex, please

The most startling finding from Carpenter’s research was that, contrary to the long-assumed facts of the case, Lawrence and Garner were not having sex when they were arrested on September 17, 1998 – a date, Carpenter pointed out, that Americans mark as Constitution Day.

Though they were not having sex, Carpenter said, “the police nevertheless arrested them and hauled them off to jail.”

That arrest set off a chain of events that eventually led to the Supreme Court’s historic decision, written by Justice Anthony Kennedy with a strong dissent by Justice Anton Scalia and another, extremely brief dissent by Justice Clarence Thomas, who pronounced the law “silly” and said if he were a legislator, he would vote to repeal it.

That Lawrence and Garner were not engaged in a sex act – and thus violating the Texas “Homosexual Conduct Law” – “was not widely known anywhere” and that information was first revealed by Carpenter in his 2004 Michigan Law Review article but, he noted modestly, “it is becoming more widely known now because of the book.”

The law that Lawrence was arrested under enabled police officials – in this particular case, the Harris County sheriff’s department – “to use their authority in an abusive and arbitrary way,” and, by overturning the Texas sodomy law and other, similar laws on the books in other states, the Supreme Court limited that form of police misconduct.

“The larger impact” of the Lawrence ruling, Carpenter explained, “ was getting rid of a precedent that wreaked havoc in the lives of gay men and lesbians in every area of life from family law to the military to relationship recognition, denying them their children, housing, employment, and everything else that we expect” as American citizens.

“The other legacy of this case,” he added, “may be yet to come in the form of more formal recognition of same-sex relationships and protection for families headed by same-sex couples. “

That, he concluded, “we’ll have to see.”

Adapted from an earlier article on Examiner.com.

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Virginia Festival of the Book 2014 - First Amendment & Free Speech

At the 2014 Virginia Festival of the Book in Charlottesville, there was a panel discussion about freedom of speech sponsored by the Thomas Jefferson Center for the Protection of Free Expression and moderated by the center's director, Josh Wheeler. The panelists were authors Floyd Abrams and Ronald K.L. Collins, who talked about free speech and the First Amendment, and how protecting freedom of speech sometimes comes in conflict with other values of a liberal society.

Attorney Floyd Abrams is a partner with the law firm of Cahill Gordon & Reindel LLP and the author of a recent book, Friend of the Court: On the Front Lines with the First Amendment.

Ron Collins teaches law at the University of Washington and is the author of a book about Abrams, Nuanced Absolutism: Floyd Abrams & the First Amendment.

Here is video of the full discussion, recorded in the Charlottesville City Council Chambers on March 22, 2014:

To read my interview with Abrams conducted immediately after the panel discussion, visit Examiner.com. To hear the full audio interview with Abrams and another interview with Josh Wheeler about the Virginia Festival of the Book event as well as the annual Muzzle Awards, visit Bearing Drift's March 29 podcast on "The Score."

For more posts about the Virginia Festival of the Book, look here.

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Author Interview: John W. Whitehead on 'A Government of Wolves'

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John W. Whitehead

After 40 years of practicing law, Rutherford Institute founder John Whitehead says he is “creeped out” by the decline in respect for civil liberties in the United States.

Whitehead, author of the 2013 book, A Government of Wolves: The Emerging American Police State, spoke to me last June at the Barracks Road Barnes & Noble just before delivering a talk about his fears of increasing authoritarianism in the United States.

A longtime civil-liberties attorney who once represented Paula Jones in her lawsuit against President Bill Clinton, he is also the author of The Freedom Wars, The Second American Revolution, and The Change Manifesto, in addition to a memoir, Slaying Dragons.

Whitehead offered his assessment of the 2012-13 U.S. Supreme Court term that had ended just days before our interview with a pair of rulings about gay marriage.

“One of the worst” terms ever, he said sharply.

This year, he said, the Supreme Court “basically upheld policemen taking you into custody and not giving you your Miranda warnings.” The Court also, he explained, eroded the Fifth Amendment privilege against self-incrimination because “now by being silent it's evidence of guilt.”

The Court, he added “approved the strip searching of anybody. If you're arrested now you can be strip searched by police for minor offenses like running a stop sign.”

“What I'm seeing is a very statist Supreme Court,” Whitehead explained.

“Some people say it's a right-wing Supreme Court. Well, I'm not sure it's right-wing. I put it more in the statist camp.”

He said the voting rights decision (in Shelby County v. Holder) was made “as if racism's no longer in America. Well, what I'm seeing in America is, there is a lot of racism.”

He gave the example of how “90 percent of the people who are arrested for marijuana offenses in New York City are either African-American or Hispanic but all evidence shows that whites smoke marijuana at a much higher rate than people with brown skin.”

Justices of the Supreme Court, Whitehead cautioned, are “living in an ivory tower.”

Supreme Court members are “chauffeured about in limousines and they don't know what we have to go through out here, especially if we're people of color.”

On Fourth Amendment rights, Whitehead noted that “Justice [Antonin] Scalia, whom I've been critical of in the past, and the women on the Supreme Court have been great in their dissents.”

Four instance, he said, those four justices objected “to the forced taking of DNA from people now. If you're arrested for anything, they can go into your body and take your DNA.”

The DNA decision is part of what Whitehead calls “the new movement toward bodily probing.”

He explained that, “in large cities across the country, police are stopping men on the street and doing rectum searches, sometimes causing bleeding. This is without a warrant, without arresting them.”

He gave the example of how recently in Texas, “two women were pulled over for throwing a cigarette out of a car. The policeman accused them of smoking marijuana” but when he found no cannabis in the car, “he called for back up, [who] did vaginal and rectum searches on the women without changing their gloves.”

Those Texas police officers, he said, have “been sued for a million and a half – and they should have been sued.”

Offering advice to citizens, Whitehead warned, “I just say, be alert. Let's read the Bill of Rights again. Most people don't even know what's in the Bill of Rights. It's 462 words but most people have never read it. Can you believe that? 462 words, you can read it in less than five minutes.”

Because “we're not teaching [the Constitution] in school anymore, people don't know” what it says.

“If you're stopped on the street and they want to do a really weird search on you,” Whitehead advised, “assert your Fourth Amendment rights.” The police “have to have probable cause.” Before they begin a search, he said, citizens should ask, “Am I doing something illegal, officer?”

With regard to A Government of Wolves, which was released at just about the same time that Edward Snowden's leaks about the National Security Agency (NSA) began making worldwide headlines, Whitehead said the book includes an examination of the NSA's activities.

"I started studying them in the 1980s, when some evidence came up that they were actually already doing domestic snooping, which they're not supposed to do."

The book explores "what I call the electronic concentration camp, because we're all watched now. The FBI has admitted to downloading our phone calls. This is American citizens" they are spying on "without probable cause" and without "following the Fourth Amendment."

Whitehead said he wanted to respond to the frequent question, "If I'm not doing anything wrong, then why should I worry?"

People should worry, he said, "for a couple reasons."

The first is that "in America we believe in the rule of the law. We believe in the Fourth Amendment, our Constitution, the right to free speech."

He pointed out how the Rutherford Institute had "helped servicemen who have been arrested for doing Facebook posts critical of the government."

Those men, he said, "are asserting their rights, by the way, and that's good to see."

A second reason people should worry, Whitehead continued, is "the militarization of the police is a very scary thing. Eighty thousand SWAT team raids occur across the United States annually, up 30,000 from ten years ago. These are black-armed troopers going through doors of people's homes for something like an ounce of marijuana."

As a response to those who say "we have nothing to hide," he mentioned how he cites attorney Harvey Silverglate's book, Three Felonies a Day: How the Feds Target the Innocent, in his own book.

"That's a great book," he said, in part because it demonstrates "the over-criminalization of America."

Citing examples from the Rutherford Institute's portfolio, Whitehead explained that he and his colleagues have "defended people who want to sell goat – no, excuse me, not sell, but give -- goat cheese away to their friends. These are farmers" who have been prosecuted for trading in foods unapproved by the government.

In another case, he said, "we defended a lady down in Arizona who, on Saturday mornings, would go to the grocery stores and get all their unused food. She had one little bookcase she'd set on her driveway for her neighbors" where they could select food items for themselves.

Some of those people, he said, "didn't have jobs" and had trouble making ends meet, yet "the police came out and tried to stop that. We threatened to sue and the police backed off but, believe it or not, they actually did surveillance on [that woman] for a couple weeks, watching her and filming her, with her little bookcase at the end of the driveway for poor people."

That's the kind of thing, Whitehead said scornfully, that "we're seeing all over the country."

(A shorter version of this interview previously appeared on Examiner.com. Video of John Whitehead's remarks following the interview are available to see on YouTube.)

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Author Interview: Jonathan Rauch on his reissued 'Kindly Inquisitors'

Jonathan Rauch

Twenty years after it was first published, a new, expanded edition of Kindly Inquisitors: The New Attacks on Free Thought is now available as an ebook, with an ink-and-paper edition coming out in March 2014.

Jonathan Rauch, the author of Kindly Inquisitors and other books (including Demosclerosis and his 2013 memoir, Denial: My 25 Years without a Soul), spoke to me recently following a panel at the Cato Institute, in which he discussed his book and what has happened with regard to free speech and censorship in the last two decades with Greg Lukianoff of the Foundation for Individual Rights in Education and Brian Moulton of the Human Rights Campaign.

After the panel, Rauch explained what inspired him to write the book in the first place.

When, in the late 1980s, “Salman Rushdie wrote The Satanic Verses and received a fatwa (essentially a death sentence) from Ayatollah Khomeini,” he said, “I thought that the West did not know how to respond to that. It could defend the laws of free speech but it wasn't defending the ideas of free speech. People were saying things like, 'Well, a death sentence on Rushdie is certainly offensive and wrong but Rushdie himself was offensive to Muslims,' and so forth. And I realized that a lot of people didn't understand why we have this idea of letting people say offensive stuff.”

One of the concepts Rauch introduces in Kindly Inquisitors is what he calls “liberal science.”

He explained that “most discussions of free thought and speech start and end with the U.S Constitution” but he tries “to go a little deeper and look at society's method for producing knowledge and adjudicating disputes about fact, which is in some ways the most important thing we do” – for instance, disagreements about whether Christianity or Islam is “the right religion.”

Historically, he said, the method of “settling disputes like that was war.”

By contrast, “liberal science substitutes an open-ended, rule-based, social process in which everybody throws out ideas all the time and we subject them to criticism. We kill our hypotheses rather than each other. This turns out both to be spectacularly good at mobilizing intellectual talent to find and promote good ideas and spectacularly good at defusing what otherwise would be political, often violent, conflicts.”

Liberal science, he said, is the term he coined “for the whole intellectual network we have that seeks truth in Western liberal cultures.”

He compares it to two other major social institutions for “allocating resources and adjudicating social conflicts.”

In economics, he said, “market systems are in the business of allocating resources and they use open-ended rules of exchange to do that.”

In politics, he noted, “democracies are in the business of allocating coercive political power and they use the exchange of votes and compromise to do that.”

Parallel to those two systems, he added, “liberal science is in the business of adjudicating questions about who's right and wrong and they use the exchange of criticism.”

These three systems, Rauch explained, “all have in common that it shouldn't matter who you are. Anyone can participate, there's no special authority, and no one gets the final say. No one can stand outside the system and say, 'Here's the final result.'”

The result is “always subject to change. It's a big rolling social consensus.”

Since Kindly Inquisitors was first published in 1993, there has been a major, positive change in the intellectual environment, Rauch said.

“In the last twenty years there's been a retreat by active ideologues who favored censorship and speech controls,” he said. Those views have “been replaced with a more refined case that focuses more specifically on how minorities can be hurt when hate speech rises to a certain level of prevalence in society. It's called the 'hostile environment doctrine.'”

In preparing the new edition of his book, Rauch “decided to take a really hard look at that because I think it's right now the biggest and most serious challenge to people like me who advocate very robust freedom of speech.”

He wanted to find out, “from a minority point of view, which is better: a wide open system where people are free to say hateful things about me and often do, or a more controlled system where you've got some people in charge trying to protect me from that?”

His conclusion, “based on the history of the last twenty years for gay rights” is that “there's no contest. We're much better off as minorities when our speech and the other side's speech are [both] protected because we win those arguments, and we're worse off when that process is interfered with.”

The expanded edition of Kindly Inquisitors includes a new foreword by syndicated columnist George F. Will and a new afterword by Jonathan Rauch. It is available now in both Nook and Kindle formats and a print version will be released next year by the University of Chicago Press.

(An earlier version of this interview appeared on Examiner.com.  A complete audio recording is available as a podcast through Bearing Drift.)

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From the Archives: Review of 'The Benefits of Moderate Drinking: Alcohol, Health, and Society' by Gene Ford

This article originally appeared in The Arlington (Va.) Journal on May 9, 1991, under the title, "The sober truth: The Prohibitionists want to control our lives" and the Roanoke (Va.) Times & World News on May 19, 1991, with the all-caps headline "BOOZE BANS: NEO-PROHIBITIONISM THREATENS OUR FREEDOMS." I have made some minor formatting adjustments so it can appear on the Web for the first time.

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In a recent ("Blitzed," April 22, 1991) New Republic article, Princeton University student Joshua Zimmerman reports that a California school district banned "Little Red Riding Hood" from first-grade classrooms because Grandma has a glass of wine after she is rescued.

He also notes that after a single incident of overdrinking that gave him a bad hangover, a campus counselor told him that he was "teetering on the brink of alcoholism" and should seek treatment.

Fox TV's "Beverly Hills 90210" recently portrayed a similar incident; the teen-age protagonist got drunk once, and by the end of the show he was at an AA meeting.

These are but surface symptoms of a deeper malady affecting American life today: neo-Prohibitionism. Another symptom is the attempt to link alcoholic beverages to illicit drugs -- an inapt analogy heard often in the wake of the drug arrests at the University of Virginia and Radford University.

The net effect is to shame social drinkers, driving the vast majority of drinkers who do not abuse alcohol into social closets. The neo-Prohibitionists are social engineers who want to legislate their moral agenda and increase state control of people's private lives. This is unhealthy, politically unwise and morally reprehensible.

In response to the new Carrie Nations, author and lecturer Gene Ford has written a comprehensive book, The Benefits of Moderate Drinking: Alcohol, Health, and Society. Ford reviews all the relevant literature on alcohol and human health, and charges that fearmongers have exaggerated the negative health effects of alcohol and buried the research demonstrating alcohol's benefits.

These pseudoscientists have cowed responsible physicians and scientists to the point that few are willing to speak in favor of moderate alcohol use.

One exception is Thomas B. Turner, M.D., former dean of The Johns Hopkins University School of Medicine. In his foreword to Ford's book, Dr. Turner notes that "the moderate use of alcoholic beverages has been with us for millennia; so has alcohol abuse. It is important to understand the difference." The new Prohibitionists, it seems, are unable to make that distinction.

Today's alcohol debate is over whether individuals should be allowed to control their own lives, to make personal decisions about their own behavior.

Ford sees the new Prohibitionists as the foot soldiers in a shadow army of totalitarians who seek to increase state control over individual behavior and decision-making.

He asserts that the anti-alcohol studies are skewed and emotionally biased. "New temperance" activists, as he calls them, use "highly selective and bastardized science to single out alcohol . . . to garner public support for their Draconian measures."

"New temperance devotees are classical political progressives wearing the mantle of public health," Ford writes. "Like stern mothers and fathers, they seek Orwellian control over the conduct of your most intimate personal lives. Progressives like to set standards for others. They suggest what you can eat, what you can drink, how you can exercise, the nature of your sexual practices, even what you and your children should read. Since the middle of the past century, when Christian progressivism evolved into a form of political fundamentalism, there has been a strong undercurrent of repression in American society."

Alcohol use and abuse have been with us since prehistoric times - in fact, some anthropologists believe that civilization itself began because prehistoric man abandoned his hunting-and-gathering lifestyle and began planting crops to ferment grains and fruits into alcoholic beverages.

Those early farmers who consumed beer and mead were better nourished than those who simply consumed gruel.

As man advanced technologically, he began to write; the earliest written record we have found is a Sumerian tablet containing a recipe for brewing beer! The Bible, Greek philosophers, and Roman poets all lauded alcoholic beverages. The moderate use of alcohol is something deeply imbedded in our culture.

Banning Red Riding Hood is just the tip of the iceberg. Millions of Americans who enjoy a glass of wine with dinner, a cocktail after work or a beer at the ballpark suffer increasing ostracism from a vociferous and vocal minority of social "progressives" whose paternalism tells them that they know better than we about ordering our lives.

They want to expand the government's already broad powers to interfere in our personal decisions, something we must firmly resist.

- - -

Note:  Gene Ford is also the author of The Science of Healthy Drinking (2003); The French Paradox & Drinking for Health (1993); and Ford's ABC's of Wines Brews and Spirits (1996), among other books and articles.

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Author Interview: Bruce Bytnar Recalls 'A Park Ranger's Life'

National Park rangers are “almost 12 times more likely to be assaulted than a Border Patrol agent,” says retired park ranger Bruce Bytnar.  In fact, he says, they “are by far the most assaulted of all federal law enforcement agents.”

Bytnar should know.  After more than three decades in the profession, serving most of that time on the Blue Ridge Parkway in Virginia, he wrote a book called A Park Ranger’s Life:  Thirty-two Years Protecting Our National Parks (Wheatmark, 2009).  During those years, he said, more than 12 rangers were killed in the line of duty.

A resident of Rockbridge County, Bytnar was one of 36 authors present at the second annual “Meet the Authors Book Signing Event” at the Holiday Inn in Charlottesville on November 19.  He graciously answered my questions about A Park Ranger’s Life in a brief interview.


Bears, bad guys, and ghosts
The book, he explained, is based on his experiences “from my career as a park ranger.  It has everything from stories about bears and bad guys [to] lost hikers.  There’s even a ghost story from early in my career from a haunted house I had to work in for two weeks.”

The book also “attempts to show what it’s really like to be a National Park ranger, as well as lots of tips for people about when they come to parks, how they can travel and be in the park safely.”

In the year since it was published, A Park Ranger’s Life “has also been adopted by three universities as required reading for students:  Ohio State University, Northern Arizona University, and Slippery Rock.”  In addition, Bytnar said, five other colleges have added it to recommended reading lists for students of resource protection who aim to become park rangers.

“Part of the reason that the universities have adopted it is the fact that it’s an honest reflection of what it actually is to be a park ranger,” Bytnar explains.  It has “not only the good, fun stories and the successes but also the frustrations, such as dealing with budgets, park managers who don’t really like what you do,” and also something most people don’t think about, negative effects on rangers’ families.

Bytnar began his career in 1975 at Fort McHenry in Baltimore before moving to the Fredericksburg and Spotsylvania National Military Park in Virginia, finally settling into a job along the Blue Ridge Parkway, where the stability was good for his family.

Three decades of changes
Did Bytnar observe changes over the three decades he was a park ranger?

“Definitely, definitely,” he said, pointing to “lots of changes in the way things were done, changes in visitation patterns, changes in the way management viewed our work.  Lots of things changed,” including the cars and all the equipment that rangers use on the job.

As for the years to come, Bytnar said, “the National Park System has a bright future as long as the American people still stand behind it.”

Americans, he explained, “have to realize what an important treasure it is that we have, and support it” not only financially and by soliciting support from their legislators, “but also by visiting the national parks.”

To complement his book, Bruce Bytnar maintains a blog, also called “A Park Ranger’s Life.”

(An earlier version of this article, in slightly different form, appeared on Examiner.com on November 20, 2010.)

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Author Interview: Earl Dudley Chronicles a Life from Prisoner to Professor

Having had a childhood that virtually parallels the story of Steven Spielberg’s 1987 movie, Empire of the Sun, retired UVA law professor Earl C. Dudley, Jr., begins his memoir, An Interested Life, with the Japanese bombing of the Philippines that followed the attack on Pearl Harbor.

“My mother and I were injured in the first Japanese bombing of the Philippine Islands on December 8, 1941,” he told me in a recent interview.  “With my parents, I was interned in the Japanese internment camps for a little over three years in the Philippines, and we were rescued by a very dramatic operation of the 11th Airborne Division on February 23, 1945.”

Dudley was one of more than 30 local and regional writers at a “Meet the Author” book signing at the Holiday Inn in Charlottesville on November 19.


‘My parents were starving themselves’
“I was only 4 when the war was over,” Dudley explained, “so I have little independent memory of my own, but I have no memory of having had an unhappy childhood.  My life was sheltered.  My parents were starving themselves to feed me.”

He recalled that his father, “who was about 6 feet tall and normally weighed about 175 or 180 pounds, weighed about 120 pounds when the war was over.  It was an experience for the adults that involved a tremendous amount of deprivation and unpleasantness.”

Yet, he remembers that, “as a child, I had the full attention of my parents.  They were prisoners and so they focused their attention on me and they starved themselves to feed me. So I don’t think I had an unhappy childhood.”

After spending one’s earliest years in a prisoner of war camp, anything after that must pale in comparison.  Yet Dudley’s life was peppered with poignant moments.

John F. Kennedy Assassination
In the early 1960s, he was working as a journalist for UPI in New York.  As it happens, he was on the editor's desk when President Kennedy was assassinated on November 22, 1963.

He writes in his memoir about that day:

“The news of the assassination hit me, as it did almost everyone, like a punch to the solar plexus.  But I had no time to grieve.  I was running an international news wire with the biggest story in many years.  Given the magnitude and pace of events, there was no time for a transition to a new editor, so I remained in the [editor’s] slot for most of the next shift as well….  I simply operated on instinct and somehow made it through the crisis without panicking.”

End of segregation
Dudley grew up in the South during the last years of enforced segregation.  He was in the ninth grade in Northern Virginia, when the U.S. Supreme Court ruled that “separate but equal” schools were inherently unequal and, consequently, unconstitutional in the case of Brown v. Board of Education.

“I was the only kid that I ever found at my Herndon High School in 1954 whose parents told him the Supreme Court got it right,” he said.

Working for civil rights, he continued, “was always a priority of mine.  I organized a demonstration at the White House in the spring of 1960 in support of the sit-ins in Greensboro, North Carolina, and then in later years, I did a fair amount of pro bono work for the Lawyers Committee for Civil Rights in Washington.”

Studying at the University of Virginia Law School drew Dudley to Charlottesville and, after graduating, he clerked for Chief Justice Earl Warren during the Supreme Court’s 1967-68 term.

Police pat-downs
Dudley clerked during the year the Court decided Terry v. Ohio, a case that may have relevance in the current controversy about Transportation Security Administration searches at U.S. airports.

Dudley said that case was probably the best-known of that Supreme Court term, adding that he worked on it, explaining that it “dealt with the question of police pat-downs on the street, with less than probable cause to arrest. It was very controversial case at the time and has spawned a huge, whole jurisprudence of its own.”

After two decades working for various Washington law firms, Dudley returned to Charlottesville to teach.

His classes included “mostly litigation-related courses, because that’s what I had done in practice.  I taught evidence, civil procedure, criminal procedure, criminal law, constitutional law, and trial advocacy.”

Dudley retired from teaching in 2008, and now enjoys quietude and travel with his wife of more than 50 years, Louise, and his family, seven decades after a tumultuous beginning to what he calls “an interested life.”

(This article originally appeared in slightly different form on Examiner.com on Sunday, November 21, 2010.)

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'Ordering the Oceans: The Making of the Law of the Sea'

This book review appeared in the New York City Tribune on Wednesday, November 11, 1987. A somewhat shorter version was published in Millennium: Journal of International Studies, Vol. 16, No, 3 (Winter 1987).

RICHARD SINCERE
An Optimist Looks at the Still-Unratified Law of the Sea


Ordering the Oceans: The Making of the Law of the Sea, by Clyde Sanger, Zed Books, London, $11.50, paperback, 225 pp.

Ocean politics have been at issue at least since the day in 1492 when Columbus set forth from Barcelona in three small ships destined to prove that one could cross the vast Atlantic and return safely.

By the 17th century, ocean politics occupied the minds of sailors, scholars, and statesmen, who all had their own views of what the “law of the sea” should be.

In England, John Selden held that the oceans could be claimed and divided by governments just as land territory was. English monarchs appreciated the idea of extending their sovereignty in this way. Across the North Sea, the Dutch lawyer Hugo Grotius expressed the view that the oceans, beyond a narrow strip along the coasts of countries, belonged to no one and should be free for navigation by all vessels, whatever their ownership. The debate of “mare clausum” vs. “mare librum” was eventually enforced by the British navy, as that state came to see the value of such freedom for a maritime power.

As technology developed and more sovereign states came into being, however, it became clear that the law of the sea as it stood was inadequate to cover the issues of the later 20th century. Exploitation of the continental shelf, conservation of fisheries, and the discovery of mineral resources of the seabed made jurists, diplomats, and businessmen acutely aware of the inadequacy.

In 1958 and 1960 the United Nations sponsored two conferences on the law of the sea, each adding conventions that in part codifies existing customs and in part dealt with the new problems. Yet the effort was incomplete. In 1967, after a famous speech by Malta’s U.N. Ambassador Arvid Pardo that proclaimed the oceans “the common heritage of mankind,” there was set in motion the Third U.N. Conference on the Law of the Sea, or UNCLOS-3.

Sanger’s book concentrates on UNCLOS-3 and discusses in detail the negotiations from 1973 to 1982 that led to the signing of a new, comprehensive Convention on the Law of the Sea. It is a workmanlike book that presents a fairly complete picture, but it is flawed.

The first flaw is this: Sanger, as a Canadian journalist, had special access to Canadian diplomats and politicians who participated in the conference. The irritating result is a painting of the Canadian delegation as the most concerned and most effective of all the participants. Moreover, the Canadians seem to be the saviors of the convention. Whenever an impasse occurs, a clever Canadian comes up with a compromise: the Canadians build bridges and coalitions.

A worse flaw may be Sanger’s bias toward not only supporting the convention as it stands -- a convention that was rejected by the United States, Great Britain, and West Germany -- but a bias against certain changes made during the negotiation process to liberalize the oceans regime, changes instigated by these Western powers.

The reason that these three countries refused to sign the convention was a fundamental disagreement over Part XI, the articles establishing international control of deep-seabed mining in the area outside national jurisdiction. Sanger presents the decisions of these three states as a shortsighted, ideological decision motivated by the lobbying of mining companies that prefer not to be regulated by an international regime.

To Sanger, the problem faced by the industrialized countries had its locus in the provisions for mandatory transfer of technology from mining companies to the International Seabed Authority and thence to the developing nations. What he fails to acknowledge is the damage caused to free enterprise and free trade by the precedent set in this treaty. For the first time an international body is given power to engage in a major commercial enterprise involving valuable natural resources. It is also at the same time both regulator of and competitor with private enterprises (and some state-owned concerns as well). Seafarers may blink at this barnyard metaphor, but a clearer case could not be found: The Law of the Sea Convention puts the fox in charge of the chicken coop.

This is a dangerous precedent and despite all arguments to the contrary, the United States and its allies were right to stand firmly against it.

It was a mistake to negotiate a comprehensive treaty, designed from the outset as a package deal. The one exception -— the international law on the emplacement of weapons on the seabed -— was negotiated separately at the Geneva Disarmament Committee. At UNCLOS-3, the intrusion of Third World ideological considerations could have done considerable damage to the eventual treaty on seabed weapons, what is after all an essentially U.S.-Soviet Union issue and agreement.

Much in the Law of the Sea Convention is in the interests of the United States, and our diplomats should work hard to see that those provisions can be transplanted into another treaty (or treaties). Only the noxious Part XI deserves full-scale rejection.

The Convention has, after four years of being open for signature, still not been ratified by enough countries to enter into force. Perhaps it never will be. I suggest that ten years from now Clyde Sanger publish a second edition of Ordering the Oceans to assess his optimistic predictions. He may be sadly surprised by the course of ocean politics.

Richard Sincere is a Washington-based foreign policy consultant who writes frequently on international affairs.

Books and Authors at CPAC 2010

Last weekend I covered the annual Conservative Political Action Conference (CPAC) in Washington, D.C., for The Metro Herald and for my two blogs, Rick Sincere News and Thoughts and the one you are reading.

Over the two days I was there, I had several opportunities to speak with authors who were selling and inscribing their books for the 10,000 or so attendees from around the United States.

I asked each author to give me an "elevator speech": introduce himself (they all turned out to be male, but that was not by design), describe the book, and explain why a viewer or listener will want to buy the book.

Among the authors I recorded were the chairman of the Cato Institute, Robert Levy; the president of Americans for Tax Reform, Grover Norquist; former White House speech writer Matt Latimer; and 14-year-old wunderkind Jonathan Krohn. You'll see the others in the list below, in alphabetical order.


John Fund, on the revised and updated edition of his book, Stealing Elections: How Voter Fraud Threatens Our Democracy:

Colin Hanna, president of Let Freedom Ring, on his book Grandma's Not Shovel-Ready!, an illustrated account of the Tea Party 9/12 March on Washington in September 2009:

Jonathan Krohn, the loquacious teenaged author of Defining Conservatism: The Principles That Will Bring Our Country Back:

Former presidential speech writer Matt Latimer has written a memoir about his time in the George W. Bush administration called Speech-Less: Tales of a White House Survivor:

Bob Levy is co-author, with Chip Mellor, of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom:

Political activist Grover Norquist has written a book about the "Leave Us Alone Coalition" entitled, naturally, Leave Us Alone: Getting the Government's Hands Off Our Money, Our Guns, Our Lives:

Finally, Heritage Foundation constitutional scholar Matthew Spalding is the author of We Still Hold These Truths: Rediscovering Our Principles, Reclaiming Our Future:

'Law and the Grenada Mission'

This review appeared originally in the New York City Tribune on Monday, March 18, 1985.

Legal lessons learned from Grenada rescue
By Richard Sincere


Law and the Grenada Mission, by John Norton Moore. (Center for Law and National Security and Center for Strategic and International Studies, 1984.) 129 pages, $9.45.

Oddly, the New Republic, in its editorial endorsing Walter Mondale for president (October 22), credited Ronald Reagan with invigorating U.S. foreign policy. Reagan, the magazine said, “dispelled the post-Vietnam jinx on the successful use of American military force. The invasion of Grenada not only left the people of that island indisputably freer and safer than they were before the troops landed, it also made the salutary announcement to the world that the United States is once again prepared to use force when it deems the cause necessary and just.”

In October 1983, in response to a request for help by the independent states of the eastern Caribbean and an urgent plea by the head of state of Grenada, the U.S. government deployed its troops to bring an end to anarchy, rescue American civilians quarantined by a thuggish military regime, and restore peace and security to a small island nation of 110,000 people. In Law and the Grenada Mission, Ambassador John Norton Moore, a distinguished professor of international law at the University of Virginia, has compressed the facts and opinion about the case into a slim volume designed to affirm the author’s belief in the rule qf law as a means to peace, stability, and security. He writes:

“Fidelity to law is and should be an important element of foreign policy. Americans were thus puzzled by the cacophony of voices instantly heard in the aftermath of the Grenada mission urging variously that the action was lawful, that it was unlawful, or that law was irrelevant. .. Perceptions about lawfulness can profoundly influence both national and international support for particular actions. In the long run only a principled policy rooted in law can ensure the international peace and justice so importantly a part of the national interest of the United States and of all nations.”

Bizarre analogies
Even after last December’s first free elections in Grenada since Maurice Bishop suspended the country’s constitution in 1979, Americans draw bizarre analogies to the Soviet invasion of Afghanistan five winters ago or of Czechoslovakia in the spring of 1968. The differences are numerous, as Ambassador Moore shows. We all know that after five years of occupation, Soviet troops are still engaged in combat am terrorism in Afghanistan; U.S. combat troops left Grenada in December 1983. The Soviets invaded Afghanistan to replace a government which the Kremlin felt it could no longer adequately control; the United States and the eastern Caribbean democracies acted to restore order in a country that had no functioning government. Afghan refugees continue to crowd neighboring states, such a Pakistan; today refugees from the Bishop regime are able to return home to Grenada with a sense of honor and optimism for the future.

Ambassador Moore notes: “The Soviet action in Afghanistan is completely counter to self-determination for the people of Afghanistan and can never permit free elections or other forms of political freedom.” The Soviets claim that the Afghan people, by implementing a Marxist revolutionary system, have made the doctrine of self-determination no longer relevant. In contrast, “91 per cent of the people of Grenada welcomed the Organization of Eastern Caribbean States mission, 76 percent said they believed Cuba sought control of their government, and the OECS states are pledged to free elections.”

The “Brezhnev Doctrine,” which undergirded the 1968 Soviet invasion of Czechoslovakia, states that once in the socialist camp, no nation may leave it. Moore calls it “a blatant violation of the non-use of force, self-determination, and human rights provisions of the United Nations Charter.” Unlike Grenada -- where the people praised the rescue mission led by the U.S. military -- “in no country where the Brezhnev Doctrine has been applied have the people who lived there welcomed its application.”

Kirkpatrick’s analysis
The comparisons of these events shed light on a statement made by U.N. Ambassador Jeane Kirkpatrick in another context. At a dinner in 1993 honoring Polish labor leader Lech Walesa, she said: “Though Marxism itself had some roots in the European liberal socialist tradition, Marxism-Leninism and Soviet state power and the political organization ruled in their name are to the liberal-democratic tradition as antithesis is to thesis. Marxism-Leninism does not incorporate either the theory or the practice of liberalism, democratic nationalism, or socialism; indeed, it denies al1 the essential elements of Western liberal-democratic, democratic-socialist, tradition.” In short, there is not respect for law, international or otherwise, in the Marxist-Leninist order, unless it furthers the cause of Communist expansion. Thus, there are no moral or ethical restraints to prevent more numerous and more brutal takeovers of small but strategically placed nations like Grenada, Nicaragua, or Vietnam.

In his monograph, John Norton Moore furnishes the documents which make the legal case for U.S. participation in the Grenada mission. Among them are letter from Sir Paul Scoon, governor-general of Grenada, to the prime minister of Barbados formally but diplomatically requesting assistance “in stabilizing this grave and dangerous situation;” the statement by the Organization of Eastern Caribbean States explaining the decision to take military action “to remove this dangerous threat to peace and security;” and statements by President Reagan and Prime Minister Eugenia Charles of Dominica announcing the action after it had taken place.

In an editorial the day after the successful :invasion, the New York Times challenged the legal basis for the U.S. participation, saying that Secretary of State George Shultz “strained the language” of the OECS treaty and that the law binding on the U.S. was in fact the 1947 Rio Treaty. Yet Professor Moore amply demonstrates that the U.S. role was “in full accord with the United Nations, OAS, and OECS Charters and United States national law: Most importantly, by serving human rights, self-determination, and international peace and security, by the mission serves the core purposes of these great Charters.”

If the lessons of Grenada still need to be studied, this book is a good place to begin the examination. History will show that the prompt legal action taken in October 1984 was a blow struck for freedom and against the American malaise of the past decade.

Richard Sincere is a Washington-based policy analyst who writes frequently on African affairs.