Assisted Suicide TO THE EDITOR: "Courting Death: Assist- ed Suicide, Doctors, and the Law" by Leon R. Kass and Nelson Lund [December 1996], while tendentious and muddleheaded on the nature of our Constitution, is at heart-and, as a non- Jew, I can say this most per- suasively-profoundly dis- respectful of the Jewish tra- dition of religious tolerance.

For most of recorded his- toryJudaism has, alas, been a small, beset, and perse- cuted religion. Appropri- ately for its own existence, in the last two millennia it has vehemently called for and supported religious tol- eration.

As the ethicist-philoso- pher of law Ronald Dwor- kin has so beautifully set forth in Life’S Dominion, how a person chooses to end his life is a profoundly religious act: "quintessentially reli- gious" is how Dworkin de- scribes it. It will be recalled that the First Amendment provides that "Congress shall make no law respect- ing an establishment of re- ligion or prohibiting the free exercise thereof." Ac- cordingly, no government may lawfully intrude into the inherently personal-con- science-religious decision of how one chooses to die.

The authors’ view of the Constitution is so crabbed and retrograde it would be summarily dismissed by a first-year law student. The Constitution is a living, vi- tal instrument, meant to en- dure for a long period.

Plainly, in 1789, all the sub- jects that might fall within its purview in succeeding centuries could not be set down. The Constitution does not mention assisted suicide. So what? Neither does it mention abortion (declared protected in Roe v. Wade), movies, or sound- recordings, the last two un- mistakably comprehended within the free-speech/free- press provisions of the First Amendment.

The more serious indict- ment of the article, howev- er, is its schizoid view of the American physician. On the one hand, the physician is held out as engaged in a vir- tually religious calling. On the other, he is painted as a proto-murderer, waiting for any opportunity to slay his hapless patient.

C’mon, give me a break! This is ridiculous.

If physicians were really so intent on murdering their patients they would today find innumerable opportu- nities to do so, by with- holding life-support, giving overdoses of drugs, etc. But in fact, there is no reliable evidence of any except rare and isolated instances of physicians acting to murder their patients.

It is paradoxical that the death-with-dignity move- ment has a higher regard for the ethical nature of Amer- ican medicine than do those fighting this movement, os- tensibly in the interest of preserving the high ethics of physicians.

Finally, Messrs. Kass and Lund are profoundly disre- spectful of freedom. They wish to curtail the freedom of dying patients to exercise their own choices as to the "quintessentially religious" decisions involved in their dying. They wish to curtail the freedom of physicians to respond to their patients as their individual religious- ethical beliefs call upon them to do. For physician aid-in-dying is at heart the freeing of the physician: to follow his religious-ethical conscience.

Messrs. Kass and Lund are afraid of freedom: for themselves, for patients, and for other physicians.

WINTHROP DRAKE THIES Hemlock Society of New Jersey, Inc.

Maplewood, New Jersey To THE EDITOR: Leon R. Kass and Nel- son Lund maintain that if the Supreme Court decides whether to pro- mulgate a new constitu- tional doctrine effectively [3]COMMENTARY APRIL I997 ending the ability of state governments to interfere with physician-assisted sui- cides, . . . judges will henceforth become re- sponsible for resolving some of the most delicate aspects of the relationship between physicians and their patients.

Should readers believe this simply on the authors’ word? Has this been the Dutch experience? Courts become involved in the details of medical de- cisions only if patients, med- ical organizations, or doc- tors find fault with one an- other’s decisions and, at the instigation of lawyers or with legal advice, think that something can be gained through litigation. How much and what kind of lit- igation would come about if assisted suicide were le- galized is an open question.

The New York Times pub- lished an estimate that only 2 percent of medical-mal- practice cases now result in litigation. Messrs. Kass and Lund indicate in their arti- cle that American doctors already expedite death. Ev- idently, they have been do- ing so without having un- leashed many lawsuits.

The authors cannot de- cide whether doctors are, or should be, guided by med- ical ethics. On the one hand, they cite ancient medical codes, like the Hippocratic Oath. On the other hand, they say that American doc- tors cannot be counted upon to act in accordance with such codes. Which sto- ry should readers believe? According to generally available information, today in the U.S. 13 percent of GNP is sluiced through medical practice yet tens of millions are uninsured; doc- tors underserve or overserve patients depending on the terms of medical payment; and millions of popular surgeries prove to have been unnecessary.

Medical ethics does not explain, and obviously can- not control, the behavior of American medical profes- sionals. So why do Messrs.

Kass and Lund warn that the relatives of patients could have something to gain by assisting suicide? Who has more to gain, or lose, by establishing sensi- ble rules about assisted sui- cide? Certainly, health ad- ministrators, doctors, and nurses have something to gain by keeping patients alive. But is the net finan- cial result of medical per- sonnel postponing death to pauperize the patients themselves, their survivors, the pool of medically in- sured, and/or the taxpayers who fund Medicare and Medicaid? I propose that Messrs.

Kass and Lund join the rest of us mere mortals in a common quest to determine when enough zeal in pro- longing life is enough, and when we the people have a duty to get on with death so as not to deplete our sur- vivors of their resources or their vitality.

PHILIP GROTH University of Wisconsin Centers Janesville, Wisconsin To THE EDITOR: Even if I could present the casefor assisted suicide with as much knowledge about medicine and law as Leon R. Kass and Nelson Lund do in attempting to prove that this practice is immoral, I doubt that I could convert them any more than their article con- verted me. Our views on eu- thanasia, as on birth control, abortion, homosexuality, etc., are based on feelings that were formed long be- fore we could reason about them.

But if we leave aside the question of morality and discuss only whether those who assist in suicide should be punished as criminals, I think I can convince those who consider such an act to be immoral that they should nevertheless support its le- galization.

All Americans generally agree that our government should not interfere with our freedom to act in ac- cordance with our con- science when such acts do not harm others. Evidence of this position can be found in our unwillingness to have the government prohibit many practices that most of us consider immoral. But when we say we want our government to prohibit acts which harm others, we mean acts which are already judged to be criminal by all of us. That is why we can- not forcibly prevent some- one from attending a church even if our religion judges that church to be immoral.

To act according to one’s conscience, whether it be to choose assisted suicide or to refuse it, does not require the government to protect us (provided that we are adults) from examples that may tempt us to act differ- ently from the way we might have acted in the ab- sence of such examples.

If assisted suicide be- comes legal, all of us will have the freedom to refuse as well as to choose such an action, according to our consciences, without violat- ing the law. Isn’t such a sit- uation more consistent with our democratic ethos, as it has developed throughout our history, than the present situation in which the gov- ernment denies this basic freedom? LAWRENCE HYMAN Ridgewood, New Jersey To THE EDITOR: Leon R. Kass and Nel- son Lund are so lucid and logical that I must accept their conclusion that assist- ed suicide could degrade the doctor-patient relationship and jeopardize salvageable patients. Is there, then, no relief from the houses of horror which even well-run nursing homes have be- come, now that their resi- dents’ average age is much higher than it was years ago? Every day it is my de- pressing duty to visit such a place, depressing even though the staff is remark- ably sweet. However, about a third of the residents are active, a third semi-senile, and a third not conscious of their surroundings. One woman spent four years co- matose, at a cost to Medic- aid of about $70,000 per year. Residents cost Medi- care several thousand dol- lars a year, too, not count- ing major surgery.

The staff attempts to en- tertain the residents, but half the residents cannot see, hear, read, or under- stand television or any but the simplest conversations.

Many of the residents have nightmarish delusions, hos- tile misunderstandings with other people, or sit in si- lence all day, head aslant.

They lack a meaningful quality of human life. What are we doing in warehous- ing those shells of human beings? RICHARD H. SHULMAN New York City To THE EDITOR: The subject of assisted suicide can be broken down [4] , . .LETTERS FROM READERS into three issues: (1) should assistance in suicide be al- lowed; (2) if allowed, who should be permitted to as- sist; and (3) who should be barred from assisting? Although ambivalent on the first issue, I have a strong opinion on the third: I am opposed to having physicians assist in suicide.

Thus, I was pleased to see the article by Leon R. Kass and Nelson Lund.

My father, aged ninety- eight, died at home of nat- ural causes last year. He talked of suicide on occa- sion, usually in a doctor’s of- fice. But I do not think he really wanted to die. I think he was just protesting the indignities, limitations, and pains of old age, of which he endured many. After all, he could have tried suicide, but he never did. However, because of a physician’s po- sition and knowledge, my father would have been very susceptible to an offer of "assistance" from his doc- tor, especially, perhaps, to spare me the burden of car- ing for him.

BARBARA BROADDUS Burlingame, California To THE EDITOR: Thank you for a very dis- turbing article on euthana- sia. My only regret is that the authors did not go far enough in warning the pub- lic against legalizing assist- ed suicide. If euthanasia were ever legalized in the United States, it would be only a matter of time before the politicians realized how much money could be saved by this terrible practice.

Then the next step would be to make it compulsory.

Yes, compulsory. Liberal do- gooders have a remarkable talent for making compul- sory everything that is not specifically forbidden by law.

Some of your readers may think that voluntary and involuntary euthanasia is tolerated only in Holland.

I do not have any definitive proof, since I am only a lay- man, but if my ninety-two- year-old mother’s passing several years ago is any in- dication, this terrible prac- tice has already crossed the Atlantic into Canada.

My mother underwent surgery for cancer about three months before her death. About ten days be- fore she died, she was ad- mitted to the palliative-care unit of the Baycrest Centre in Toronto. She did not have any serious problems with pain at that point and was amazingly lucid considering her advanced age and con- dition. Two days later, she was hooked up to a mor- phine pump, without any warning or consultation with me. From that moment on, she never spoke another word and died about a week later.

The social worker I com- plained to told me not to worry, since it takes the body several days to get used to morphine. After a few days I complained to the attending physician and suggested to him that he was practicing euthanasia by stealth. He told me that it is not possible to kill with morphine because the body metabolizes it very quickly.

Many Americans envy Canadians because we have socialized medicine. Don’t.

At least your Dr. Kevorkian is honest about what he does.

ELIEZER GREISDORF Toronto, Ontario, Canada To THE EDITOR: In their masterful "Court- ing Death: Assisted Suicide, Doctors, and the Law," Leon R. Kass and Nelson Lund make a key point when they note that termi- nal illness is notoriously dif- ficult to predict accurately.

Gerald would agree. He was in his early twenties when a highly malignant tumor was diagnosed. When I first met him he was bedridden and short of breath. He had masses throughout his body that actually grew from day to day. My teachers, expe- rienced cancer specialists, agreed he had days to live.

Nevertheless, he was given high-dose chemotherapy.

The tumors shrank and eventually disappeared.

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New York, NY 10010 212-475-4320 to w Fax (212) 505-0535 " i Out of state call toll-free: U u 1-800-221-4083 II [5] Am- -ra~s~a k., ICOMMENTARY APRIL I997 mal child. Had we "eutha- nized" him, we never would have discovered our error.

Gerald is a striking ex- ample of the inaccuracy of predictions of life ex- pectancy, but hardly the only one. In a study pub- lished in the New England Journal of Medicine in 1991, cancer specialists predicted that 156 cancer patients had less than a year to live. In fact, 55 percent of these pa- tients were still alive at one year, 15 percent at two years, and 3 percent at three years. All the patients had been diagnosed by experi- enced pathologists and had cancers that were not espe- cially responsive to therapy.

If specialists are wrong this often in patients with clear diagnoses, how often will general physicians be wrong in dealing with less firm di- agnoses? Perhaps this practical ar- gument will be more effec- tive than moral or legal ar- guments have been. When I first saw Gerald three decades ago, "physician-as- sisted death" meant a con- cerned doctor committed to caring for the patient until the end. That it now means something quite different is not a source of pride.

DAVID C.

STOLINSKY, M.D.

Los Angeles, California To THE EDITOR: The article by Leon R.

Kass and Nelson Lund was wonderful: it is by far the best thing I have read on this subject.

JOSEPH ASTARITA New Rochelle, New York LEON R. KASS and NELSON LUND write: Our critics appear not to have grasped our main point: even if the Supreme Court finds some sort of freedom to commit suicide protected by the Constitu- tion, the Court should nonetheless uphold state statutes prohibiting assisted suicide. These laws serve ra- tional and important prac- tical purposes: they protect vulnerable patients against manipulated "choices" for death and against nonvol- untary euthanasia; they sup- port the fragile ethic of med- icine, which protects doc- tors against their own weak- nesses by insisting on a bright-line distinction be- tween allowing to die and deliberately killing. The state laws defend the gen- eral interest in keeping the healing profession from be- coming also the death-deal- ing profession.

The Hemlock Society’s Winthrop Drake Thies sub- scribes to the Humpty- Dumpty school of constitu- tional interpretation: the words of the Constitution mean whatever I want them to mean and the Constitu- tion proscribes all the laws I don’t like. This is clear on the face of Mr. Thies’s let- ter, when he assumes that the phrase "Congress shall make no law . .. " means "no government may lawfully. … " Similarly, Mr. Thies as- sumes that the absence of any reference to suicide in the Constitution is quite ir- relevant to the constitu- tionality of laws against as- sisted suicide. Contrary to Mr. Thies’s suggestion, first- year law students do not universally treat the words of the Constitution as an ir- relevancy, and the Supreme Court does so only rarely.

In any event, we did not as- sert that the Constitution’s silence about suicide settles the constitutional issue. We did say that neither the Constitution nor the Supreme Court’s precedents provide a compelling basis for invalidating laws against assisted suicide, and we ad- here to that claim.

Mr. Thies’s second point seems to be that laws against assisted suicide infringe on the religious freedom of patients and physicians.

This seems to be the Humpty-Dumpty approach applied to the First Amend- ment’s guarantee of religious freedom. If I say that assisted suicide is a "quin- tessentially religious" act, then the act is protected by the Constitution. If this were accepted, then any law would become unen- forceable when someone mouthed the word "reli- gion" while violating it.

Mr. Thies’s worse than Humpty-Dumpty attitude toward religion is revealed in his sophistic attempt to make allies for the Hemlock Society by appealing to what he calls "the Jewish tradition of religious toler- ance." For reasons of self- preservation Jews welcome toleration, but as Jews they will have no truck with as- sisting suicide. According to authenticJewish tradition, a Jew is obliged to accept martyrdom rather than commit an act that willful- ly ends an innocent human life. Further, Jews have sharp memories about what can happen when other people start justifying the taking of worthless life. Mr.

Thies should stick to his own Hemlock "religion." Philip Groth rightly be- lieves that there are unan- swered questions about the exact effects that legalizing assisted suicide would have.

But he is wrong to be so confident that the proscrip- tion against physician-as- sisted suicide is little more than an obstacle to sensible rules that would save mon- ey for everyone, from sur- vivors to the taxpayers. The last paragraph of his letter is also shocking for the in- souciance with which it ig- nores the fundamental dis- tinction, heavily emphasized in our article, between the prudent withholding of life- prolonging treatments and the killing of patients by their doctors.

Lawrence Hyman argues that the government should allow any individual to commit any act that does not itself harm another per- son, even if the legalization of such acts may promote a great deal of harm to many persons. This sort of insis- tence on abstract principle, heedless of the conse- quences, implies that we should also legalize: inden- tured servitude, polygamy, all recreational drugs, pros- titution, cruelty to animals, and the possession by indi- viduals of the ingredients for nuclear weapons. We will take a pass on Mr. Hy- man’s version of "our de- mocratic ethos." We agree with Richard H. Shulman that many peo- ple have an appallingly low "quality of human life," and that keeping some patients alive can cost a lot of mon- ey. We do not agree, how- ever, that these facts suggest a need for euthanasia. Our answer to Mr. Shulman’s last question is simple: we are refraining from murder.

Proponents of assisted suicide who rest their case on autonomy and who naively believe, despite the evidence from Holland, that the practice will be confined to those who, sound of mind, freely elect death for them- selves, should be stopped short by the suggestions of Mr. Groth ("a duty to get on with death") and Mr. Shul- [6]LETTERS FROM READERS man ("warehousing those shells of human beings").

The burden of proof falls on those who want us to believe that we can regulate the hemlock once we let it out of the bottle.

We thank Barbara Broaddus, Eliezer Greis- dorf, and David C. Stolin- sky for their informative ex- amples, and Joseph Astari- ta for his kind words, Israel and Netanyahu To THE EDITOR: It is futile to argue with an ideologue, but particu- larly so when the ideologue is Norman Podhoretz. In "The Tragic Predicament of Benjamin Netanyahu" [December 1996], Mr. Pod- horetz argues that the next Arab-Israeli war is immi- nent because Benjamin Ne- tanyahu is being pressured to return occupied Arab ter- ritories under the Oslo ac- cords.

Mr. Podhoretz favors Is- rael’s retention of all the ter- ritories occupied in 1967.

Why? Because the Arabs cannot be trusted, and those drooling Israelis such as the late Prime Minister Yitzhak Rabin and his successor, Shimon Peres, who have supported peace with the Palestinians have only suc- ceeded in setting the stage for the next war.

Under Adolf Hitler, Jews could not be trusted, and the Final Solution was the logical answer to the Jewish problem. Of course, Mr.

Podhoretz is not suggesting a similar fate for the Pales- tinians. His Final Solution is more convoluted. We are told that we should not mess with Netanyahu’s plans for the Palestinian territo- ries and the Golan Heights.

We should not protest his starvation policies or his de- clared policy of populating the occupied territories with more Jewish settlers or his policy of creating facts on the ground to make the re- turn of these territories to their legal owners mean- ingless. The time will cer- tainly come, not for a holo- caust but for final expulsion.

Netanyahu’s Minister of In- frastructure is on record as favoring such a course.

The rantings of Mr. Pod- horetz against Egypt, Jor- dan, the Arabs, and indeed against the whole world are to be expected from a cryp- to-fascist thinker who views the Palestinians and Arabs as subhumans with no rights. But this type of thinking proved to be the undoing of fascism.

ABDELALEEM I.

EL-ABYAD Minister and Head of Office, Press and Information Bureau Embassy of the Arab Republic of Egypt Washington, D.C.

To THE EDITOR: In his article, Norman Podhoretz writes that I was "forced to concede" that the opening of the archeologi- cal tunnel in Jerusalem by the Israelis in September 1996 could be justified from an archeological, touristic, and spiritual viewpoint and that it threatened no Mus- lim religious sites.

Nothing of the sort. I was not "forced" at all. And I was not "conced[ing]" any- thing. I was simply trying to write a balanced piece.

Would Mr. Podhoretz say that I was "forced to con- cede," as I wrote in the same piece, that "[Arafat] is in- competent, duplicitous, and corrupt. He breaks agree- ments. He tortures his own people and denies them ba- sic rights"? Mr. Podhoretz paints in black and white; I, in shades of gray. Just because he does not like my conclusion ("[Netanyahu] is very clever, but he has no judgment"), Mr. Podhoretz refers to "the likes of Shanks" and to my criticisms of Netanyahu in opening a new exit to the tunnel as simply a "com- pendium of the conven- tional wisdom and politi- Rid your home or plant of pests and vermin with the …

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I LCOMMENTARY APRIL I997 cally-correct interpretation of the crisis." Mr. Podhoretz would be far more effective if he did not regard everyone who disagrees with him as a knave or a fool.

One question he does not face: why were so many Israelis and so many Amer- ican Jews and all the com- mentators that he cites in his article so critical of Ne- tanyahu’s opening of the tunnel exit? Are we all part of an anti-Zionist conspir- acy? Are we all completely lacking in judgment? In the Washington Post op-ed piece (reprinted in the International Herald Tri- bune) from which Mr. Pod- horetz quotes, I refer to the continued closure of the border, preventing Pales- tinian workers from work- ing in Israel, as a "needless economic restriction" im- posed "under the guise of security needs." Mr. Pod- horetz is incredulous that I could question the security basis of closure. The fact is that closure is generally rec- ognized as an economic lever rather than a security measure. As the Jerusalem Post (hardly a Peace-Now- nik publication) observed, "It is hard to think of a sin- gle case in recent times of a Palestinian worker with a permit committing a ter- rorist act." Moreover, the border be- tween the West Bank and Israel is inevitably porous: it is over 300 miles long; conservative estimates are that between 10,000 and 15,000 Palestinian workers cross illegally every day.

Even during the intifada, men over thirty-five with wives and children and no previous record were not likely to be terrorists: such people quite clearly do not fit the terrorist profile, and keeping them out serves no security purpose.

Now to Hebron, about which I have written that providing security to the Jews living there while at the same time redeploying Israeli troops is like squar- ing the circle. No less a hawk than Hillel Halkin, writing in the generally hard-line Forward, has crit- icized Netanyahu for de- manding the right of "hot pursuit." Such a right, he says, is, in the Hebron sit- uation, "all but meaning- less. … [I]t has no military value." Terrorists do not make their moves in view of Israeli soldiers. The right of hot pursuit, Halkin con- cludes, is merely a "symbol," and a "poorly chosen" one at that.

The point is that Ne- tanyahu has not conducted himself well since his elec- tion, even in the view of many of his supporters.

This does not make demons or traitors out of those of us who say so.

HERSHEL SHANKS Editor; Moment Washington, D.C.

To THE EDITOR: It eludes me why Nor- man Podhoretz insists on bringing up the canard of the "Jewish" electoral ma- jority in an ostensibly strate- gic and political analysis of Israel’s current situation.

As a campus activist in the early 1980’s, I frequent- ly found myself in agree- ment with neoconservative foreign-policy positions- despite my social-democ- ratic convictions-because I understood them to have derived from a fundamen- tal commitment to democ- ratic values. Has the mean- ing of democracy under- gone a miraculous trans- mutation? Netanyahu him- self unabashedly courted the Arab vote during the elec- tions whenever the oppor- tunity arose. Presumably he did not warn them in ad- vance that their votes counted for less than those of Jews.

For the past ten years, as an Israeli citizen and soldier, I have watched with con- cern the evolving delegiti- mation of Israeli Arabs by a small but growing minori- ty on the Right. It was man- ifest in the elevation of Re- havam Zeevi, whose party advocates the ethnic cleans- ing of Israeli Arabs, to a cab- inet post in the Shamir gov- ernment. It was manifest in the ugly campaign of defamation carried out against Yitzhak Rabin, claiming that he had no "mandate" to negotiate on the basis of "Arab votes." It was manifest in statements by Ariel Sharon that Arabs should not vote on ques- tions of strategic importance to the country. It was man- ifest in the racist slogans which sullied the election campaign, such as "Bibi or [Ahmed] Tibi," or "The Arabs are with Peres." It has also been manifest in the ac- tions of Baruch Goldstein, Noam Friedman, Ami Pop- per, Yigal Amir, and a litany of other Jewish terrorists who thrive in an atmos- phere charged with xeno- phobia and hate.

The creeping delegiti- mation, and the concomi- tant dehumanization, of 20 percent of Israel’s citizenry is part of the price we Is- raelis are paying for our generation-long occupation of the West Bank and Gaza.

This goes far to explain why opponents of the "Greater Israel" concept-erro- neously defined, even by Mr. Podhoretz, as the Left-range over Israel’s en- tire political spectrum, unit- ed only in their conviction that continued Israeli rule over two million Palestini- ans constitutes a dangerous strategic liability to Israeli society. Many an army re- servist will attest to the bru- talizing effects of daily oc- cupation duty, and ac- knowledge that scenes such as the televised humiliation of Arabs near Ramallah by Israeli border police are far more widespread than is generally reported.

Mr. Podhoretz’s strategic observations are a legitimate contribution. But why, for heaven’s sake, must he pro- vide a mouthpiece for the racist expletives excreted by the lunatic fringe of Israel’s political culture? SAM SHUBE Ashdod, Israel To THE EDITOR: Norman Podhoretz’s as- sessment of Benjamin Ne- tanyahu’s predicament hits the nail on the head. Ne- tanyahu now has no choice but to capitulate on most points, and this because of the seriously weakened po- sition the previous govern- ment put Israel into. What Mr. Podhoretz does not stress enough, however, is the viciousness of the Left’s attacks on the new Prime Minister. Blatantly and cyn- ically, Israel’s leftist Knesset members, news media, busi- nessmen, and even enter- tainers gave no quarter in what began to look like a conspiracy to bring Ne- tanyahu down and return a leftist government, with no thought for justice or even long-range planning to ben- efit the country. Always (in my view) short-sighted, left- ist Israelis (and not only they) seemed to have no de- sire to work together for the good of the country’s future.

[10] ULETTERS FROM READERS They have one goal: to cause the fall, by any ugly means available, of the country’s democratically elected government.

MARILYN MAGEN Tel Aviv, Israel To THE EDITOR: Like Norman Podhoretz, I too have felt that I should have voted for Shimon Peres so that history would have no choice but to lay blame for the upcoming war on the right person. I have even thought that Ne- tanyahu ought to bring Peres into the coalition so as to force him to take some responsibility for what he has wrought. However, liv- ing in Israel, I feel safer with Netanyahu at the helm. I am convinced that the Prime Minister is on the right course in following the signed agreements without using the Peres strategy of tactical appeasement. I only hope that Netanyahu has the courage to change his aptly stated "tragic predica- ment" into a strategic op- portunity.

IRA SLOMOWITZ Kfar Saba, Israel To THE EDITOR: I believe, sadly, that Nor- man Podhoretz’s analyses, starting with his "Israel: A Lamentation from the Fu- ture" [March 1989], have been consistently correct.

In his latest article, howev- er, I think that he is too le- nient with Benjamin Ne- tanyahu. There were two points at which Netanyahu could understandably and justifiably have stopped the Oslo process. The first was in September, when the PLO used Israeli guns to kill Israeli soldiers; the sec- ond was when the PLO re- fused to return the killers of the Tzur family. I really think that as soon as Ne- tanyahu took office he should have called a mora- torium until the PLO met all its previous commit- ments. However, I have to assume that he would then have been accused of all kinds of things by the rest of the world. But the two items I just mentioned would, I believe, have been understood.

As a member of the cen- tral committee of Israel’s National Religious party who campaigned hard for Netanyahu’s election, I think I can say with a cer- tain amount of assurance that he fooled us. It was not a mistake to vote for him, since the other option was Peres and my opinion of him matches that of Mr.

Podhoretz. But I now be- lieve that he does not have the strength of character re- quired to stand up for the things he believes in. And in the final analysis that is what counts.

No matter how much territory Israel gives up to Arafat and his terrorists, their ultimate goal remains the same. The question that arises is which particular scenario will bring the in- evitable war. Mr. Podhoretz mentions several, but I would like to suggest addi- tional possibilities, all of which could easily lead to an all-out war with the oth- er Arab nations joining in.

1. The PLO eventually declares a state and, active- ly supported by the other Arab states, starts a war with Israel.

2. Israel allows the PLO to declare a state but dis- agrees with some other de- mand, such as having East Jerusalem as its capital or the return of Arab refugees from the wars of 1948 and 1967 to Israel. This could trigger a mini-war like the one that occurred when the Hasmonean tunnel was opened in Jerusalem, which would then escalate.

3. At some point, either before or after the declara- tion of a PLO state, the var- ious terrorist factions- Hamas, Habash, Ahmed Jibril, George Hawatmah, etc.-begin internecine war- fare and turn the areas un- [11]COMMENTARY APRIL I997 der PLO control into a sec- ond Lebanon. Israel would have to step in, since it could not allow such a state to exist on its borders.

4. PLO-controlled terri- tory, either before or after the declaration of a state, becomes the base for con- tinuous terrorist attacks against Israel. This would not be tolerated by any Is- raeli government and Israel would be forced to stop the terrorism.

5. Arafat is assassinated and some other terrorist group takes over. This could develop into another version of Item 4 above. A variation is the assassination or death of King Hussein and the breakdown of the Hashe- mite regime in Jordan.

Then the whole area would blow up, but the one sure thing is that Israel would be the target of one or all or a combination of Arab states and by then it would have already given up much of the strategic territory.

Take your choice of any of the above. They all lead to the same conclusion: that we are headed toward a war for our very existence. One hopes we will win it but, considering the nature of weaponry today compared with 1967, the loss of life may be very large.

I write all this with sad- ness, but I cannot escape feeling that what I describe is the reality. I hope and pray that my family, friends, and the people of Israel sur- vive with minimal damage.

But I fear that the conflict is unavoidable and the re- sults will depend on many things, not the least of which is our spirit and our belief in the righteousness of our cause. About that, I have no doubts.

JAY SHAPIRO Ginot Shomron, Israel To THE EDITOR: Norman Podhoretz’s ex- cellent analysis, although correct in every particular, manages to lose the main point. As Mr. Podhoretz makes clear, the Arabs uni- versally regard the "peace process" as a one-sided process of Israeli surrender.

Further, as Arafat demon- strated in his September mini-war against Israel, the Arabs are prepared to use violence whenever they feel the surrender is not going fast enough.

By endorsing "Oslo," Netanyahu has boarded the same train to destruction started by Rabin and Peres.

What he must do is stop the "peace process" cold. Of course, the price for stop- ping is to be universally ac- cused of being against peace. This is Netanyahu’s true predicament: the sal- vation of Israel depends on an apparent renunciation of peace.

A true peace can become possible only after the Arabs realize that their dream of some day destroying Israel is hopeless and must be abandoned.

ALEXANDER FIRESTONE Ames, Iowa To THE EDITOR: I recently made a brief visit to Israel. With relatives on both sides of the politi- cal spectrum, I had hoped to find out whether they shared any common ground. Upon my return, scrutinizing accumulated newspapers and magazines, comparing what I had heard and seen with what I was reading, I was appalled at the amount of misinforma- tion. Personal bias, reliance on one-sided sources, main- ly Palestinian or of the ex- treme Left, form the core of reporting on Israel. In his article, Norman Podhoretz proves that the hostile me- dia coverage continues un- abated.

Reports in both the mainstream media and the Jewish press might lead one to believe that in Israel peo- ple are afraid to walk the streets, that Orthodox and secular Israelis are in con- stant conflict, that no Arabs are visible-one gets an im- age of a country about to fall apart. Yet I saw pros- perous-looking folks, Or- thodox, secular, and fezzed gentlemen talking serious- ly to one another. I saw overcrowded shopping cen- ters, women dressed in the latest fashions. In short: I saw a lively country.

The timely, well-in- formed, but frightening ar- ticle by Mr. Podhoretz fur- ther restored the balance.

He is on firm ground when he describes Arab hatred to- ward Israel, yet in my con- versations with Israelis, I did not discern any apprehen- sion of impending war. Peo- ple on both the Right and Left told me that the prob- lems are solvable. They also agreed, however, that nei- ther the "peaceniks" nor their opponents are blind to Arab intentions. I returned home believing that Ne- tanyahu will succeed, and that Israelis and not Amer- icans will make the final de- cisions on peace.

SAMUEL L. TENNENBAUM West Orange, New Jersey To THE EDITOR: As COMMENTARY read- ers have come to expect, Norman Podhoretz has of- fered a logical and cogent analysis of the current state of the Arab-Israeli conflict in "The Tragic Predicament of Benjamin Netanyahu." Unfortunately, I too believe that the Middle East is heading toward another war, one that, for the first time since 1948, all of Is- rael’s neighbors could choose to join.

Like Mr. Podhoretz, I pray that we both are wrong. But contributing to my own pessimism is a set of factors that he did not ad- dress. If there is a war, it might be the first that Israel will be forced to fight with- out the support of the ma- jority of the Jewish com- munity in the Diaspora and particularly in the United States.

I base this prediction on disturbing trends that I have noticed in Jewish commu- nal life within the last decade or so. When I start- ed becoming interested in Jewish communal affairs, in- dividuals who blamed Israel for the absence of peace were kept on the margins of the Jewish community. No mainstream Jewish organi- zation would have ever giv- en them a platform. Today, such people regularly speak from synagogue pulpits and at events sponsored by Fed- erations and other main- stream Jewish organizations.

Furthermore, the failure of the Jewish community to come to Israel’s defense af- ter the tunnel fiasco would have been unthinkable just twenty years ago.

How did these changes come about? I think that one factor more than oth- ers is responsible. Like oth- er institutions in society, Ju- daism has been "dumbed- down." That is, the stan- dards for what constitutes adequate Jewish literacy have declined significantly.

Within the near future, the leadership roles of major Jewish organizations will be assumed by people whose view of the Arab-Israeli con- flict has been shaped more [12]Investor’s Business Daily U U.:.

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City State _ Zip Daytime Phone (____ Business Phone ( ) I J Company | I Title I I Mail to: Investor’s Business Daily, P.O. Box 66370, Los Angeles, CA 90066-0370 Subscribers within the last 4 months not eligible. This offer is good in the U.S.A. only. JBXD – – -1 11 1= 11 l 111 11 1 111 M11 JCOMMENTARY APRIL I997 by CNN and the New York Times than by Hebrew schools or Zionist youth groups. In a few years, lead- ership will pass to individ- uals who, unlike me, have no personal memory of the fear that gripped world Jew- ry in the immediate weeks before the Six-Day War, to say nothing of the events that led to the creation of Israel.

All this leads me to be- lieve that any Israeli gov- ernment which will refuse to appease Arab tyrants in the name of advancing "peace" will find American Jews giving it only luke- warm support. It is even possible that leaders of prominent Jewish organi- zations may in some future crisis publicly side with Is- rael’s adversaries.

American Jews may have only limited influence in galvanizing their govern- ment’s support for a safe and secure Israel. On the other hand, the American gov- ernment can hardly be ex- pected to have concern for Israel’s legitimate security interests if American Jews are not acting as strong ad- vocates for them.

MARTIN S. KROSSEL Mamaroneck, New York NORMAN PODHORETZ writes: I thank Minister El- Abyad for confirming with his almost ludicrously viru- lent rhetoric what I said in my article-that even after all these years of living un- der the regime of a peace treaty with Israel, the Egyp- tians still show "little sign of diminished animosity to- ward the Jewish state," and that much the same is true of the rest of the Arab world. This judgment, writes Mr. El-Abyad, is only "to be expected from a crvw- to-fascist" like me. But is Fouad Ajami, who comes up with an assessment very similar to mine, a crypto- fascist too? In a recent issue of U.S. News & World Re- port, the Lebanese-born Ajami, now a scholar at the Johns Hopkins School of Advanced International Studies and the author of a number of definitive works about the Middle East, flat- ly states that "There has been no discernible change in the Arab attitudes toward Israel," and goes on as fol- lows: The great refusal per- sists . . . in that "Arab street" of ordinary men and women, among the in-.

tellectuals and the writers, and in the professional syndicates. The force of this refusal can be seen in the press of the govern- ments and of the opposi- tionists, among the secu- larists and the Islamists alike, in countries that have concluded diplomatic agreements with Israel and those that haven’t.

This assessment is con- firmed by no less fervent a supporter of Palestinian statehood than the New York Times columnist Thomas Friedman. In a report from Casablanca, Friedman ac- knowledges that "Up to now the Arab intellectual Left, as well as the unions of Arab doctors, lawyers, and writers, have refused to reconcile themselves to Is- rael, even though their regimes have." But what is most significant about Friedman’s piece is that it focuses on Morocco, sup- posedly the least hostile to Israel of those regimes: I just participated in a roundtable discussion with 50 Moroccan profes- sors . . ., and I heard at- tacks on Israel that were so bitter I finally said to them: "I feel as if I’ve en- tered a time warp and woken up at an Arab League meeting in 1960." According to Ajami, the great refusal "remains fiercest in Egypt," where opposition to Israel "has be- come part of the ethos and the ideology of the state" as well as of "the gatekeepers of Egyptian culture [who] remain unalterably opposed to normal traffic with Is- rael." But it would seem from Friedman’s account that things are just as bad even in Morocco.

Minister El-Abyad’s let- ter can thus be taken as rep- resentative of prevailing sen- timent in the Arab world in general and Egypt in par- ticular. It can perhaps also be taken as a demonstration that chutzpah, often con- sidered a distinctivelyJew- ish trait, may now be even more characteristic of Arabs.

For this official of a coun- try whose controlled press is full of cartoons reminis- cent of Hitler’s Germany in their anti-Semitic ugliness, and whose capital has be- come a leading center for the publication and distrib- ution of The Protocols of the Elders of Zion, has the gall to compare me to the Nazis.

The Israelis as the Nazis and the Palestinians as the Jews: this disgusting inver- sion has long been a staple of Arab propaganda, and Minister El-Abyad’s con- tinued reliance on it is yet another sign that the "peace process" has failed to work a change of heart in the Arab world. Although he does not come right out and denounce Prime Minister Netanyahu as a Nazi (that honor is reserved for me), he slyly associates Ne- tanyahu with the "convo- luted" Final Solution for the Palestinians I allegedly wish to see. Netanyahu, he declares, is planning to hold onto "the Palestinian terri- tories," from which he means to expel the Pales- tinians; he also intends to maintain control over the Golan Heights.

Well, if Netanyahu har- bors any such plans, he has a peculiar way of imple- menting them. For not only has he withdrawn from He- bron since Minister El- Abyad’s letter was written, and not only is he prepar- ing further withdrawals from the West Bank, and not only has he refused to build new settlements there, and not only has he begun hinting that he is now ready to accept a Palestinian state, but he has also been press- ing to reopen negotiations based on an exchange of the Golan Heights for a peace treaty with Syria.

All this exposes Minister El-Abyad’s letter as a tissue of hysterical lies. And it also makes Hershel Shanks’s piece on the little war Arafat started over the opening of the tunnel last September look even more like a "com- pendium of the conven- tional wisdom and politi- cally-correct interpretation of the crisis" than it did then. Indeed, so complete- ly have subsequent events borne out my arguments against that interpretation that Mr. Shanks’s compla- cent restatement of it now sounds positively silly.

Thus his lucubrations over Hebron matter even less now than they did be- fore the agreement on Is- raeli withdrawal was reached-an agreement that he would have known was in the works had he not [14] r——- —- – — FrLETTERS FROM READERS been so eager to participate in the worldwide gang-up on Netanyahu. The same eagerness accounts for his carry-on over "closure," or what Minister El-Abyad, who agrees with him on this issue, calls Netanyahu’s "starvation policies." What- ever the merits of closure, Mr. Shanks conveniently continues to forget that it was Shimon Peres, not Ne- tanyahu, who closed the borders to Palestinian work- ers from the territories. Fur- thermore, as I also pointed out in my article, Ne- tanyahu had already begun opening them at the time Mr. Shanks joined the jack- als snapping at his heels (if I may borrow from the title of an article Daniel P.

Moynihan once wrote for COMMENTARY about the UN and Israel). This, too, Mr. Shanks persists in ig- noring.

Sam Shube thinks that in stressing the Jewish vote in my analysis of Netanyahu’s victory in the last election I was being undemocratic and racist. Since I cannot believe that he agrees with the in- famous UN resolution con- demning Zionism (that is, the right of Jews to self-de- termination in a Jewish state) as a form of racism, I will refrain from engaging him on the level of princi- ple and confine my response to the level of psephology.

On that level, then, it was obvious that the Arab citi- zens of Israel overwhelm- ingly backed the policies of Rabin and then Peres (and in itself alone the fact that they have the vote disposes of the canard that Israel is undemocratic); the only question concerned the sen- timents of the Jewish ma- jority. Supporters of the "peace process" assured us that most Israeli Jews ap- proved of Oslo; others said that they were split right down the middle; but no one predicted that they would go by a large margin for Netanyahu. Hence when they did, it told us something significant about the Israeli political climate that we did not know be- fore. I fail to understand why it was racist of me or anyone else to highlight this important reality.

Mr. Shube, like many other people both in Israel and in the world at large, is convinced "that continued Israeli rule over two million Palestinians constitutes a dangerous strategic liabili- ty to Israeli society." Well, all these people can relax, since contrary to what they expected, Israel under Ne- tanyahu is well on the way to divesting itself of any such liability. Already all but about 30,000 of those two million Palestinians are be- ing governed by the Pales- tinian Authority, and given the direction in which Ne- tanyahu is now moving, they will soon be living in a state of their own. At that point we will find out whether Mr. Shube and practically everyone else in the world are right in their belief that this is the road to peace as against those few of us who cannot help see- ing it as the prelude to a major war.

Jay Shapiro and Alexan- der Firestone are among those few, but they contend that Netanyahu could have put a halt to Oslo when he first came into office. I still find it hard, however, to imagine how he could have done this without bringing the world down on his head and losing the support of the American government and even the American Jewish community (about whose current attitudes toward Is- rael Martin S. Krossel is even more pessimistic than I am). There was simply no way Netanyahu could have stopped or derailed the train that Rabin and Peres had sent speeding full-throttle down the tracks. Nor can I imagine anything he might do now to keep that train from crashing into the ter- minus of a major war. I sketched out two scenarios of how such a war might break out. Mr. Shapiro adds three more and, as he says, "Take your choice." Even so, Marilyn Magen, Ira Slomowitz, and Samuel L. Tennenbaum, despite their respective disappoint- ments with Netanyahu, still prefer him to his opponents on the Left and still feel safer with him than they did with Peres. I do too, main- ly because Netanyahu has no illusions about the state of mind in the Arab world and is therefore putting, a greater emphasis on mili- tary preparedness (by, among other things, in- creasing the defense bud- get) than a reelected Peres, with visions of a "new Mid- dle East" dancing in his eyes, could have been ex- pected to do. Alas, under the circumstances so vivid- ly described by Fouad Ajami, strengthening Is- rael’s defenses is not likely to deter war, but it can at least ensure that, when war comes, Israel will be ready to fight and in a better po- sition to win.

Having repeated all that once again, let me also once again (this time joining with Mr. Shapiro) pray that my analysis is wrong.

[15] Jewish Abstracts This invaluable newsletter abstracts the best of popular and scholarly Jewish publications.

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Jewish Abstracts 2565 Broadway, #140 New York, NY 10025 212-665-5233 [email protected] APRIL 1997 Federalism To THE EDITOR: I read the lucid and co- gent article by David B.

Rivkin, Jr. and Lee A. Ca- sey, "Federalism (Cont’d.)" [December 1996], with in- terest and sympathy.

I served as law clerk to Justice Louis D. Brandeis in the 1935-36 Supreme Court term. It is inconceivable to me that he would have dif- fered from the position of the authors. Moreover, to turn to an issue of enormous concern to me, Justice Bran- deis would surely have sup- ported the single-sex status of Virginia Military Insti- tute (VMI) and also of the Citadel, responding not only to his belief in states’ rights but also to his identification with the South. I testified by deposition on behalf of the single-sex status of VMI, and was cross-examined at enormous length by lawyers from the New York ACLU, who were also attacking the Citadel.

The provincialism vis-a- vis the traditional South of Justice Stephen Breyer and other members of the Court majority in the VMI case would seem, in the light of the position of Messrs. Rivkin and Casey, a flagrant attack on responsible federalism.

It goes without saying that I do not believe that all the states will do a mar- velous job in matters now redelegated to them, but, as the article makes clear, the authors do not believe that the purpose of the Supreme Court is to save us from ourselves or, rather, it should do so only in cases of the most clear-cut inter- ferences with liberty and with freedom of speech.

DAVID RIESMAN Harvard University Cambridge, Massachusetts To THE EDITOR: David B. Rivkin, Jr. and Lee A. Casey mention the Supreme Court’s require- ment that all state laws must, at a minimum, be ra- tionally related to a proper governmental purpose in order to be constitutional.

This rule, which they call "uncontroversial," is pred- icated on the Fourteenth Amendment’s equal-pro- tection clause. Unlike the authors, however, I believe that this doctrine is not only controversial but dead wrong.

Messrs. Rivkin and Ca- sey also cite the Tenth Amendment, which says that those powers which the Constitution does not give to the federal govern- ment or prohibit to the states-in other words, powers simply not referred to at all-are reserved (ex- clusively) to the states. If not expressly prohibited, in fact, states can generally make laws even on matters that are addressed by feder- al law (though, because of the Constitution’s suprem- acy clause, in cases of con- flict state laws will suc- cumb). Aside from these restrictions, however, it was intended that the states be free to legislate without limits, as the Tenth Amendment makes per- fectly clear.

Nor was the equal-pro- tection clause intended to change all this. Considering that it was part of the post- Civil War amendments, it is nearly impossible to be- lieve that it was understood to address anyone but blacks and perhaps racial groups generally. For example, can anyone besides liberal judi- cial activists say with a straight face that those who enacted the equal-protec- tion clause in 1868 had the protection of homosexuals in mind? But even if I were to con- cede that the equal-protec- tion clause applied to ho- mosexuals, as the Court re- cently held in Romer, and, based on other cases, to women and aliens (and the list goes on), it would still seem absurd that it was in- tended to give the judiciary the power to strike down any state law which lacks a "proper governmental pur- pose"-without regard to the limitations actually found in the Constitution, and therefore based ulti- mately on nothing but the subjective politics of indi- vidual judges disguised as law.

TODD BANK East Meadow, New York To THE EDITOR: In their article, "Feder- alism (Cont’d.)," David B.

Rivkin, Jr. and Lee A. Ca- sey have illuminated a posi- tion that is highly critical of federal regulation. Surely federal regulation needs to be evaluated carefully and limited to situations where it is needed. Yet their broad- side attack on the constitu- tional basis of federal regu- lation, in my view, goes too far.

First, it bears noting that virtually all civil-rights leg- islation and the regulation under it rest on the com- merce clause. The famous case of Heart ofAtlanta Mo- tel established the constitu- tional foundation for the 1964 Civil Rights Act.

There have been few pieces of legislation in our na- tion’s history that have been more important in shaping attitudes and prac- tices toward minorities.

The approach of Messrs.

Rivkin and Casey calls into question not only the stat- utes they mention but the whole host of anti-discrim- ination laws that are so fundamental to the modem American legal landscape.

It is not realistic to think that states will substitute consistent standards in the area of civil rights for those that have evolved under federal statutes based on the commerce clause.

In addition, their ap- proach supports, perhaps ironically, a highly activist judicial temperament. Yet members of Congress are elected; federal judges are not. For courts to take an aggressive view toward the federal commerce power, as suggested by the authors, would move them to the forefront of social policy- making. We should not want courts striking down a vast range of regulatory laws that Congress has passed.

Moreover, the authors’ reliance on the presumed original intent of the Framers raises serious methodological questions.

We want to know what the Framers’ intent was when they adopted provisions of the Constitution, but why should we deem a particu- lar historical attitude in 1787 to be the definitive basis for modern constitutional in- terpretation? This question opens up the entire debate about a dynamic or living Constitution versus a more static Constitution.

This is not the place ful- ly to develop a theory and argument in favor of a liv- ing view of constitutional law. The key point is that conditions have changed since 1787. Courts in many areas of constitutional law have recognized this as they have evolved meanings for key provisions.

The authors have writ- ten a provocative piece, and [16] . . . Of -The Journal of Russia’s Foreign Policy Known for its close ties with the Russian Foreign Ministry, International Affairs offers unique insight and analysis of the major foreign policy and security problems facing Russia and the other countries of the former Soviet Union today, and presents a variety of interpre- tations of world and domestic events by leading Russian policy makers and commentators. Indispensable research tool for scholars, analysts and stu- dents of Russia and CIS. Most back issues are available.

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!Exp. Date I Send to I Name I Company I Address I Address I City/State/Zip I_ l Phone I INTERNATIONAL AFFAIRS A Russian Journal of World Politics, Diplomacy and International Relations The UN after Its Anniversay Rssia and the World Anmu Market…………….. Kotelkin Disaroament and National Goals . ……………….. Kornmov Rusia: Peacemaker in the Transcaucus……. V Prlalhi Israel under Netnyal . …………….. ……………. S mtrno Primakov in Latin Amena ………………………. K KhchatNrv Nuclear Option for India and Pakistan ……….. V. loaknin Marshal Zhukov and the U.S. Plan for Post-War Geminy Ilro op~p I I I I I I I I I I I I .ml l l ml llm _ ______ _ deqg· II A I I JCOMMENTARY APRIL I997 that is all to the good. We do need a healthy broad de- bate about federal and state power.

THOMAS 0. SARGENTICH Co-Director, Program on Law and Government American University Washington, D.C.

DAVID B. RIVKIN, JR. and LEE A. CASEY write: We appreciate the re- sponses to our article. David Riesman’s kind letter points out an excellent example of how the modern Supreme Court has "reinterpreted" the Constitution’s text, changing its meaning in or- der to strike down institu- tions that were unques- tioned by its Framers but which are now unfashion- able among the "enlight- ened." That Justice Bran- deis might have agreed with our analysis is both flatter- ing and a fair gauge of how far the judiciary has come in the last 60 years. On mat- ters of judicial restraint, Jus- tice Brandeis, whose poli- tics were of the liberal vari- ety, was the Antonin Scalia of his time-or, more ap- propriately-the conserva- tive Justice Scalia can fairly be characterized as the Brandeis of our own.

We obviously share Todd Bank’s concern that judges not make policy for the states in the guise of up- holding the Fourteenth Amendment’s due-process and equal-protection claus- es. We cannot, however, agree with his interpreta- tion of the equal-protection clause’s reach. Although that provision was occasioned by the need to protect recent- ly freed slaves from Recon- structed state governments, neither its text nor the evi- dence of its original mean- ing suggests that its protec- tion was limited to the freedmen, or to their de- scendants. The equal-pro- tection clause guarantees all "persons" "equal protection of the laws." The battles, of course, are fought over what "equal protection of the laws" means.

Finally, in response to Thomas O. Sargentich, we believe that the ends cannot justify the means. Much civ- il-rights legislation has, in- deed, been based on the commerce clause. Where racial discrimination gen- uinely affects interstate commerce, Congress can properly use its commerce power to correct it. A ho- tel’s refusal to serve black customers, for example, can impede the free flow of goods and services in inter- state commerce, and con- gressional action is entirely appropriate. That some civ- il-rights legislation might not survive scrutiny under the original meaning of the commerce clause does not, and cannot, justify Congress in ignoring that meaning, and in usurping power the Constitution denied it.

More broadly, the ap- proach we advocate-that Congress, the courts, and the President should all lim- it themselves to the power granted them by the Con- stitution and its amend- ments in accordance with the document’s original meaning-does not pro- mote an "activist" judiciary.

Judicial "activism" should be assessed by the quality of the judicial act-in making law as opposed to inter- preting and applying it- rather than by the quantity of unconstitutional legisla- tion invalidated. When Congress legislates in the constitutionally defined sphere of federal authority, the courts must suffer its laws, however wronghead- ed they think the result.

When Congress exceeds its constitutional power, the courts may not permit its legislation, regardless of how good they think the re- sult.

The Framers purpose- fully eschewed an unwritten constitution subject to change by accretion and evolution over time in favor of a written constitution that can be changed only by amendment. Courts are not bound by the personal, sub- jective intent of the Framers, but they are bound by the meaning of the words and concepts the Framers used at the time the Constitution was written and ratified.

There is no contemporary evidence-not one letter, paper, pamphlet, or broad- sheet-indicating that the Constitution’s Framers and ratifiers understood it to give the judiciary the power con- stantly to redraft that doc- ument. The courts that have, in Mr. Sargentich’s phrase, "evolved meanings for key provisions" differ- ent from the original mean- ing were engaged not in a process of constitutional ex- plication but in a quiet coup d’6tat.

The City Opera To THE EDITOR: I write in response to Terry Teachout’s article on the New York City Opera ["Not the Metropolitan Opera," December 1996], of which I was chairman for twelve years and on whose board I still sit. City Opera has sold more than 200,000 tickets almost every year during the last few decades, no matter who was in charge or what nonstandard repertory was favored.

Though this is a third as many tickets as the Metro- politan Opera, it is more than any other American opera company and more than many of the major Eu- ropean companies.

It seems that very few people attend both the City Opera and the Met and thus it would appear that City Opera’s patrons are still those envisaged by Mayor Fiorello LaGuardia: people who love opera but are un- able to afford Met tickets.

So there are absolutely no grounds for Mr. Tea- chout’s questioning the City Opera’s existence. And whether or not it performs more American operas, as he proposes, will probably have nothing to do with the company’s box-office or its long-term health.

ROBERT W. WILSON New York City TERRY TEACHOUT writes: Robert W Wilson’s piv- otal role in keeping City Opera afloat is well known and much admired-by me among many others-and his letter points up an essential distinction between the roles of the critic and what, for want of a better word, I shall call the insider.

The conductor George Szell summed it up neatly (if one-sidedly) when he said, "For the kibitzer, no stakes are too high." Every critic is in this sense a kib- itzer: he has no personal stake in the institutions about which he writes.

Hence, he is free to hold those institutions to stan- dards which are not always relevant to the practical problem of getting the cur- tain up every night-a prob- lem with which insiders like Mr. Wilson are by defini- tion mainly concerned.

[18] vLETTERS FROM READERS Having worked in the world of music, I think I have a better grasp of the practical side of things than do many other critics, and I try consciously to write criticism that is informed by my professional experience: I would never recommend that an institution adopt artistic policies which, how- ever pleasing to me person- ally, would inevitably bring about its demise. But I also believe that, in the end, it is my job to side with ideals, not institutions, which means I sometimes find my- self complaining about per- formances that give pleasure to large numbers of other people.

I notice that Mr. Wilson says nothing in his letter about the merits of City Opera’s artistic policies dur- ing his tenure as chairman.

Instead, he states flatly that the fact that the company sells more than 200,000 tickets a year means I have "absolutely no grounds" for questioning its existence. If this means he is applying a market test to the "success" of City Opera, I can only say I am applying a differ- ent test: in art, more may not necessarily mean worse, but neither does it neces- sarily mean better, and for me, City Opera’s existence can only be justified by the quality of the performances it gives. I do not think a low-priced opera perfor- mance that is artistically un- satisfactory does anybody any good, least of all a novice operagoer who does not know the difference. (I will pass over in silence the question of whether City Opera’s inability to sell enough tickets to put it on a sound financial footing negates the validity of a to- tally market-based analysis of its artistic policies.) The fact that Mr. Wilson and I are ultimately talking about two different things is thrown into still sharper relief by his observation that "whether or not more American operas are per- formed. .. will probably have nothing to do with the company’s box-office or its long-term health." No doubt he is right on the first count. But to me, the health of City Opera has at least as much to do with whether it is doing the right thing ar- tistically-and I believe deeply that this means a repertory that includes American opera.

Uses of Biography TO THE EDITOR: Initially we chose to ig- nore Gary Saul Morson’s re- view of our book, The Bones of Berdichev: The Life and Fate of Vasily Grossman [Books in Review, Septem- ber 1996]. But Joshua Rubenstein’s letter defend- ing his own biography of Ilya Ehrenburg, which was jointly reviewed by Mr.

Morson, and Mr. Morson’s reply [Letters from Read- ers, January] have prompt- ed this response.

Accused by Mr. Morson of whitewashing Ehren- burg’s various sins and ig- noring evidence that did not suit his purpose, Ruben- stein adopts an intriguing tactic. He takes Mr. Mor- son to task for missing an alleged fault in our book! Eager to set the record straight, he then spends two-thirds of his letter at- tacking The Bones of Berdichev.

In his reply to Ruben- stein’s complaints, Mr. Mor- son confesses with disarm- ing candor that a statement in his review about the is- sue that upsets Rubenstein (the role of Ilya Ehrenburg in the creation of The Black Book) "represents my para- phrase of the Garrards’ ac- count, not my own view of the subject. Apart from the two books under review, I have no information worth mentioning… ." Setting aside the fact that Mr. Morson failed to para- phrase our treatment of The Black Book fully and accu- rately, we are surely enti- tled to ask what value Mr.

Morson’s view might have, since he has "no informa- tion worth mentioning" about it? May we also correct his effort to lump our book to- gether with Rubenstein’s as examples of the "compro- mises biographers make to justify the lives they nar- rate"? In his review, Mr.

Morson does devote sever- al paragraphs to the com- promises in Rubenstein’s bi- ography. But none of this has anything to do with our treatment of Vasily Gross- man. Later in the review, in- deed, Mr. Morson contra- dicts his earlier statement by calling The Bones of Berdichev "the story of a man who spends much of his life atoning for his dis- graceful acts." He cannot have it both ways. Either we are guilty of "compromis- es" or we have laid out "dis- graceful acts." As any reader of our [19] Business with Israel? Investing in Israel? Visit the Israeli Investor Network T M World Wide Web Site http://www.iin18.com Write to us for free information and a free issue of: THE GIZA INVESTMENT LETTER- ISRAEL’S BEST SOURCE OF NEWS AND ANALYSIS OF ISRAELI SECURITIES ISRAELI INVESTOR NETWORK," INC. 165 W. PUTNAM AVENUE GREENWICH, CT. 06830, USA OR FAX YOUR REQUEST TO: 914-937-7153 POSITION AVAILABLE Advertising Sales Representative Send letter and rsume to Allan Diamond COMMENTARY 165 E. 56th Street New York, NY 10022COMMENTARY APRIL 997 book can confirm, The Bones of Berdichev demonstrates that Grossman was quite different from Ehrenburg (a man whom we admire in many respects). Here again Mr. Morson fails to para- phrase accurately. Gross- man’s faults were those of omission rather commis- sion. He did not spend a lifetime cooperating with the Stalinist regime, but he was intimidated on moral issues that troubled him deeply. Part of his continu- ing interest as a writer de- rives from the ruthless hon- esty and artistic integrity with which he examined his own experiences, including his failure to act, in his nov- els and short stories.

We can agree to disagree with Mr. Morson on a num- ber of issues since his opin- ions are (as he confesses) not based on a close familiarity with the facts set forth and analyzed in our book. How- ever, we do take exception to his notion that we por- tray Jews, including victims of the Holocaust, in too fa- vorable a light.

As non-Jews we view ac- cusations of philo-Semitism from Gentiles as a kind of backhanded compliment- and our book has provoked several such "compliments." It is harder to know what to make of accusations from a Jew without any profes- sional background in the subject at hand who argues that we present too sympa- thetic a picture of Jewish suffering at the hands of czarist authorities and later of the Nazis and local col- laborators during the Holo- caust.

Mr. Morson dismisses as special pleading what are in fact documentary accounts of mistreatment and mas- sacres, drawn from newly opened Soviet archives. He charges us with granting the victims a "morally privileged position." This sentiment and the style in which it is expressed echo the blood- less world of modern liter- ary theory, in which Mr.

Morson seems so much at home.

Whatever Mr. Morson’s motives, we make no apolo- gies for expressing sympa- thy for the innocent men, women, children, and babes-in-arms at Berdichev and elsewhere in Nazi-oc- cupied Soviet territory who were humiliated, robbed, and butchered for no rea- son other than that they were Jewish.

As for Mr. Morson’s claim that we "apologize for anything and everything Jews have ever done," this is an unconscionable state- ment and a malicious at- tempt to devalue our book and the terrible suffering it documents. The claim pat- ently misrepresents our views and those of Gross- man as set forth in The Bones of Berdichev. We tried only to stay faithful to Vasily Grossman’s published works and to his humanitarian spirit in urging the treat- ment ofJews as people-no more, no less.

JOHN AND CAROL GARRARD University ofArizona Tucson Arizona GARY SAUL MORSON writes: John and Carol Garrard claim that in my review of their book I accused them of portraying Jews, "in- cluding victims of the Holo- caust, in too favorable a light." According to them, I wrote that in The Bones of Berdichev they "present too sympathetic a picture of Jewish suffering at the hands of czarist authorities and lat- er of the Nazis." In the same vein, they now assert that they "make no apolo- gies for expressing sympa- thy for the innocent men, women, children, and babes-in-arms … who were humiliated, robbed, and butchered for no reason other than that they were Jewish." What prompts these egregious characterizations, which come close to accus- ing me of callousness to- ward Jewish suffering? Their comments refer to a single sentence in my re- view, which reads: Unfortunately, too, [the Garrards] tend to suggest rather facilely that the suf- fering of Jews has given them a morally privileged position, and to apologize for anything and every- thing that Jews have ever done.

That is all.

Surely, to suggest that not all Jews are morally pure does not mean that they de- serve the suffering that has been inflicted upon them. In writing that sentence, I had in mind a number of passages in the Garrards’ book that seem to me questionable in terms of both judgment and ethics. To take just one ex- ample: in their discussion of the Russian civil war, they mention a Jewish Red Army soldier who, in retribution for anti-Semitism, would bayonet Ukrainians en masse in a blind fury. Their com- ment: "naturally enough, on occasion Jewish Red Army officers sought revenge for the brutal murder of their own loved ones." They might have spared us that "naturally enough." The Garrards find it a di- rect contradiction ("he can- not have it both ways") to say that a biography can ad- mit to disgraceful acts on the part of its subject and still be compromised by an overly apologetic treatment.

But this is not necessarily a contradiction, since every- thing depends on how one presents those acts, and what story they fit into.

There are, in fact, many bi- ographies of political and literary figures that concede faults only to downplay their significance.

In my reply to Joshua Rubenstein, I wrote that, apart from what was pre- sented in his and the Gar- rards’ book, "I have no in- formation worth mention- ing on the creation of The Black Book," about which the two studies disagree. For the Garrards, this admission shows that I lack the cre- dentials to review their book: "His opinions are (as he confesses) not based on a close familiarity with the facts set forth and analyzed in our book." Confesses? Because I do not know about the composition of The Black Book, I apparent- ly do not know anything else about the subject. I would have thought, in any event, that adjudicating be- tween two scholars’ ac- counts of an incident is a topic for another scholarly article, hardly the function of a review.

Finally, although I have published nine books and some 50 articles on Russian literature and thought, in- cluding on Russian anti- Semitism, I am described as "a Jew without any profes- sional background in the subject at hand." The Garrards’ letter is filled with ad-hominem at- tacks, but perhaps the most telling comment occurs at the end; my review, they say, is "a malicious attempt to devalue our book and the terrible suffering it docu- [20]LETTERS FROM READERS ments." Here, the Garrards seem to be equating criti- cism of their book with lack of sympathy for the millions killed by the Nazis. I sup- pose it might be possible to imagine a more cynical use of the Holocaust, but it would be difficult.

Ukraine To THE EDITOR: Angelo M. Codevilla’s as- sertion in response to let- ters by Ukrainian ambas- sador Yuri Shcherbak and myself [Letters from Read- ers, January 1997] that "in May 1996 the U.S. govern- ment officially protested to the government of Ukraine over its sale of SS-18 mis- sile components to China" is simply untrue. The U.S.

government did not offi- cially make such a protest either in May 1996 or at any other time. The National Security Council (NSC) has advised us that no such of- ficial protest was made. Ad- ditionally, the government of Ukraine has denied the existence of any govern- ment committee to conduct sales of strategic goods to Libya or of any agreement to sell missile technology to China, as Mr. Codevilla also asserts.

Due to a speculative CIA report, the U.S. Foreign Operations Law for Fiscal Year 1997 includes the fol- lowing language regarding the earmarking of funds for Ukraine: Funds appropriated under this heading may not be made available for the government of Ukraine if the President determines and reports to the Com- mittee on Appropriations that the government of Ukraine is engaged in mil- itary cooperation with the government of Libya.

Similar language appears with reference to the other independent states of the former Soviet Union. This "caveat" represents circum- spection on the part of Sen- ator Mitch McConnell, the author of the bill, rather than the possession of any evidence of illicit dealings on the part of Ukraine. To date, President Clinton has no grounds for making such a determination.

ASKOLD S. LOZYNSKYJ Ukrainian Congress Committee ofAmerica, Inc.

Washington, D.C.

ANGELO M. CODEVILLA writes: I do not know who on the NSC staff said what to Askold S. Lozynskyj, but then-Defense Secretary Wil- liam J. Perry said publicly to the Washington Times on May 21, 1996 that the U.S.

government had made protests to Ukraine. Let me quote from the Times story: The United States has strongly protested China’s efforts to buy SS-18 mis- sile technology from Rus- sia and Ukraine, Defense Secretary William J. Per- ry said in an interview yesterday…. "I will as- sure you that there have been communications at high levels both to the Russian and Ukrainian governments. The de- marche to the Russians and the Ukrainians was very specific…." Later in the same news story the Secretary was again quoted on the issue of transferring SS-18 compo- nents or technology to Chi- na, an action which he as- serted would violate U.S.

Russian strategic-arms treaties as well as the 31-na- tion Missile Technology Control Regime: We are adamantly op- posed to any such transfer, and we are being very di- rect with both the Rus- sians and the Ukrainians on this issue, since a good bit of the SS-18 technol- ogy is made in Ukraine.

In the normal course of things, a Secretary of De- fense issues warnings of this nature only when he knows something is happening, or has already happened.

In any event, it was on the basis of facts such as the ones I cited in my original article, "Defenseless Amer- ica" [September 1996], and not on the basis of any "speculative CIA report," that Congress, in the U.S.

Foreign Operations Law for 1997, vehemently discour- aged money for Ukraine.

This provision did not come about as the result of a sin- gle Senator’s "circumspec- tion"; such language is adopted by Congress only after official consultation and advice, and on the ba- sis of knowledge such as that which Secretary Perry felt strongly enough about to speak out in public.

A Classic To THE EDITOR: Joseph Epstein’s story, "Don Juan Zimmerman" [January], is exceptionally moving and beautiful. It de- serves to be widely ac- knowledged as a classic ex- ample of the short story.

P. DAVID HORNIK Jerusalem, Israel