The organizing principle of the administration’s foreign policy is one of weakness and passivity, coupled with a conspicuous rhetorical abdication of American leadership, write David Rivkin and Lee Casey.

by David B. Rivkin and Lee A. Casey | September 21, 2012 4:45 AM EDT

A few days ago on The Daily Beast, Leslie Gelb praised President Obama’s handling of the unfolding crisis in the Middle East last week and evidently discerns no connection between the ensuing wave of anti-American violence and the broader parameters of American foreign policy. He is wrong on both counts. The administration’s crisis management has been mediocre. Even more fundamentally, the current assault on America’s position in the Middle East is attributable not to the trailer for an obscure anti-Muslim movie, but to Obama’s own foreign-policy failures.

The administration’s crisis-management strategy continues to emphasize its regret about that film, Innocence of Muslims. This was manifest not only in the original (and subsequently retracted) statement from our embassy in Cairo, but in all statements by Secretary of State Hillary Clinton and the president. But deploring efforts to denigrate Muslim religious beliefs is only the first half of the sentence. The administration should have also robustly propounded its commitment to the virtues and values of free expression in a free society, and why this must necessarily encompass offensive speech. Whenever the White House mentions the First Amendment these days, it is done mostly in a defensive mode, by way of explaining (almost in sorrow) to the Muslim world why the U.S. government cannot legally suppress anti-Muslim films rather than a compelling explanation of why such films should not be suppressed. As Clinton stated on Sept. 14, “I know it is hard for some people to understand why the United States cannot or does not just prevent these kinds of reprehensible videos from ever seeing the light of day.” But simply saying that free speech is enshrined in our Constitution “is not enough” the administration must explain why that is a good thing to which they too should aspire.

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To uphold the individual mandate as an exercise of the taxing power, the majority overlooked the natural meaning of the statutory text.

By David B. Rivkin Jr. and Lee A. Casey

The Supreme Court’s ObamaCare decision is both a triumph and a tragedy for our constitutional system. On the plus side, as we have long argued in these pages and in the courts, the justices held that Congress’s power to regulate interstate commerce cannot support federal requirements imposed on Americans simply because they exist. The court also ruled that there are limits to Congress’s ability to use federal spending to force the states to adopt its preferred policies.

However, in upholding ObamaCare’s mandate that all Americans buy health insurance as a kind of “tax,” the court itself engaged in a quintessentially legislative activity—redrafting the law’s unambiguous text. The court struck down ObamaCare as enacted by Congress and upheld a new ObamaCare of its own making.

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In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.

(published in The Wall Street Journal, August 29, 2012)

By DAVID B. RIVKIN JR.

For many years now, a debate has raged over how best to interpret the Constitution and other canonical legal texts. One way of grouping the warring parties is to divide them according to their views of writing itself—the words on the page. The textualists feel a strong loyalty, even a moral commitment, to the words themselves and the meanings they were intended to convey. The non-textualists have a very different approach, guided by a peculiar view of democratic society and the law.

Like the government in Anthony Burgess’s “A Clockwork Orange”—setting out to adjust the behavior of inherently flawed men and women—non-textualists see the American electorate as a collection of people in need of improvement and democracy as too error-prone to do the job. Their solution is to vest judges with the ability to “adjust” the law in order to ensure a more “progressive” direction, loosely interpreting the wording of statutes and the Constitution and sometimes disregarding the wording entirely. The result is a search for non-democratic shortcuts as the best way to promote fairness and social justice.

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