- The Washington Times - Sunday, April 27, 2003


By Richard Delgado

New York University Press, $29.95, 217 pages

Ninety percent of what we believe is knowing why we disbelieve alternatives. On that score, University of Colorado Law School professor Richard Delgado’s “Justice At War” is immensely constructive. Virtually every page brims with his Critical Race Theory movement assertions or critiques oscillating between the unpersuasive and the absurd.

Emblematic is Mr. Delgado’s infantile formula for international peace and security: “[T]he easiest way to see to our collective security is simply [for nations] to make friends with each other.” It speaks volumes that the professor neglects examples to substantiate the proposition despite the opportunity to draw on 4,000 years of human history.

Did he consider Neville Chamberlain befriending Hitler at Munich? Or Secretary of State Dean Acheson’s exclusion of South Korea from our Pacific security interests before North Korea’s invasion? Even France has not hinted that an invitation by President George W. Bush to President Saddam Hussein for tea and fraternal hugs at the White House was a plausible strategy for eliminating Iraq’s weapons of mass destruction and sponsorship of terrorism.

On domestic matters, Mr. Delgado is equally wide of the mark. He sermonizes that, “all of law is a war zone, just as all social life is.” Some poetic license should be indulged all authors. But Mr. Delgado’s extremist war characterizations fall outside the pale. The vast majority of citizens ungrudgingly obey the law. It enjoys the legitimacy of constitutional sanction. With very rare exceptions, legal disputes are resolved peacefully every day by independent judges. In social life, few feel that outings to school, shopping, work, or entertainment necessitate the armaments or shields of war.

Virtually all wisdom and understanding are matters of degree, a truism that escapes Mr. Delgado’s ken. And enlightenment is stunted when an exception is touted as the rule, like an elephant described as an ailing mouse with a glandular condition.

Mr. Delgado pronounces as folly the nation’s law enforcement tools for thwarting terrorism because absolute safety is chimerical. His ludicrous premise is that civilization is as much endangered by one terrorist act every decade as by terrorist villainies daily.

He sallies forth with the jejune recognition that general legal rules typically sport exceptions, like a self-defense justification for homicide. He then misstates immigration law for theatrical effect to poison the reader’s mind against the government. The professor maintains: “Usually the government cannot deprive you of your liberty or right to a livelihood without a hearing and good cause. But if you’re an immigrant, it can, based on secret evidence. And the government may change the rules without any input from people like you.”

“That’s the plenary power doctrine.”

To corroborate his startling assertions, the professor summons not a regulation, statute, or judicial ruling, but newspaper articles written by Amy Goldstein of The Washington Post and Antony Lewis of the New York Times. And he declares that congressional laws addressing immigrants are unreviewable by the judicial branch. But the legal landscape is more complicated.

Secret evidence may be used to prove before a neutral magistrate cause to detain an alien suspected of terrorism. Non-citizens may not be detained on the Justice Department’s say-so. A detainee may contest the terrorism suspicion. The incriminating evidence is shown only to the court not for spite, but to avoid tipping terrorists plotting new editions of September 11.

The United States Constitution celebrates laws enacted by elected representatives and senators, not Athenian democracy. Thus, changing immigration rules by majorities voting in the House and Senate without holding a plebiscite is unalarming, not sinister as Mr. Delgado insinuates. Further, no constitutional doctrine categorically shields immigration laws from judicial review. Great deference is given to Congress and the Executive Branch. But the United States Supreme Court is the final arbiter. For example, in Zadvydas v. Davis (2001), the High Court held that an alien unlawfully present in the United States could be detained only for a period “reasonably necessary” to secure his removal.

Mr. Delgado’s immigration law distortions are just a dress rehearsal for the more outlandish. Thus, he preaches that American law generally is a constellation of doctrines to facilitate the strong in oppressing the weak. The contrary evidence is mountainous. The Supreme Court’s equal protection scrutiny of laws is heightened for discrete and insular political minorities.

Thus, in Plyler v. Doe (1982) the Court held that illegal alien children were constitutionally entitled to a free public education. Income tax, minimum wage, social security, Medicare, Medicaid, Food Stamps, Aid to Families with Dependent Children, unemployment insurance, public housing, and countless other federal and state statutes work a stunning redistribution of wealth to the needy or destitute.

The reader is regularly filled with suspense over new encounters with Mr. Delgado’s inexhaustible supply of inanities. One of the best is his counter to terrorism: namely, accept the way of life and vile ambitions of terrorists, such as enslaving women, slaughtering Christians and Jews, torturing dissenters, and killing democratic institutions and the rule of law. Be friends. Hold siestas. Exchange gifts. If that had been done with the September 11 mass murderers, they would have recoiled from their abominations.

Ditto for Hitler, Eichmann, Tojo, Lenin, Stalin, Mao Tse-tung, Genghis Khan, Kim Il Sung, Pol Pot, Slobodan Milosevic, etc. If Jewish women and children had acclaimed Beethoven’s Ninth Symphony at Auschwitz, their exterminators would have quit work and defected to the Allies.

If Mr. Delgado’s scribbling is representative of the Critical Race Theory movement, its irrelevancy is as assured as the flat earth society.

Bruce Fein is a founding partner of Fein & Fein (www.feinandfein. com)

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