Commentary Magazine


Topic: Constitution

Hobby Lobby, Religious Liberty, and the Dangers of Complacence

It’s tempting, and easy, to dismiss Democrats’ legislative response to the Supreme Court’s Hobby Lobby decision. Senate Democrats say as soon as today they could bring up a bill that would, as Politico terms it, “override” the high court’s ruling, which followed the course set out in the Religious Freedom Restoration Act. Democrats want to push this as part of the “war on women” by making shameless false claims about the court’s ruling and trashing both RFRA and the First Amendment.

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It’s tempting, and easy, to dismiss Democrats’ legislative response to the Supreme Court’s Hobby Lobby decision. Senate Democrats say as soon as today they could bring up a bill that would, as Politico terms it, “override” the high court’s ruling, which followed the course set out in the Religious Freedom Restoration Act. Democrats want to push this as part of the “war on women” by making shameless false claims about the court’s ruling and trashing both RFRA and the First Amendment.

Conservatives have been generally dismissive of the White House’s “war on women,” and for good reason. Additionally, they may be further tempted to deride the left’s response now that they’ve won a limited victory at the Supreme Court. It also requires a heroic effort to take seriously any policymaking that begins with Harry Reid including Clarence Thomas in his category of “white men” who should be ignored. Reid is railing against the Supreme Court, but he does not appear to be terribly familiar with it. (As an aside, why mention the race of the justices at all if this is an issue about gender? Because leftists can’t speak, apparently, without accusing someone of being racist.)

But this attitude would be a mistake, with regard to the Hobby Lobby pushback. To be sure, conservatives should avoid getting drawn into a fictitious debate on birth control based on completely false premises and designed not to advance policy solutions but to give Democrats yet another chance to insult the intelligence of the nation’s women and to put Christianity–and by extension, religious belief in general–on trial. After all, it’s unlikely that yet another Reid-led Democratic effort to undo basic American rights will pass the House.

And getting drawn into this debate risks giving the Democrats what they actually want: a change of subject. As the Obama presidency plummets in popularity and the corruption and abuse of power scandals keep multiplying, the Democrats want to talk about anything but the issues dragging them down.

Nonetheless, conservatives should think twice about taking the debate over this bill–not the president’s executive action, but the Senate bill on which there would presumably be debate and a vote–too lightly. What the Democrats are trying to do is build a public-policy consensus that would erode religious liberty by holding a referendum on whether America’s first freedom, and the basis for the American project, should be undone in the service of left-wing culture-war extremism.

Is it worth undermining religious freedom just so Democrats can distract the electorate from their inability to govern with a public discussion about the economics of sex? For Democrats like Harry Reid, the answer is an unequivocal yes. Basic freedoms are fine in the abstract, according to Democratic policymakers, but they often infringe on Democrats’ quest for power. So they must be subverted.

Conservatives must understand that the risk here is not actual policy, since the bill won’t pass the House. The risk is that by ceding space in the public sphere to liberal demagogues, they won’t engage the important part of this debate. Since, as I’ve written previously, opposition to religious freedom is now a partisan Democratic position, conservatives are the last line of defense. What they don’t want is for the left to own a debate that could build a public consensus against those freedoms. If conservatives won’t speak up for religious freedom, nobody will, and it will be ignored and trampled.

It’s also important because none of this takes place in a vacuum. In a very smart piece for BuzzFeed, Chris Geidner tracks the evolving fight over religious exemptions in employee non-discrimination legislation. He notes that LGBT groups and their supporters are backing away from anti-discrimination legislation they were initially inclined to support because of the religious exemptions being added. The bill will probably not be advanced in the House this year, Geidner notes, and explains why these groups are fighting about it anyway.

He gives three reasons: to shape the next version of this legislation that comes through Congress in the next session; because the groups are unnerved by the Supreme Court’s upholding of religious freedom protections in the Hobby Lobby case; and to influence President Obama’s forthcoming executive order on the issue. In other words, these groups recognize that although the Democrats’ demand for employee-sponsored drugs that may act as abortifacients has nothing to do with gay rights, in some way it has everything to do with it.

Settling law and winning public debates over religious freedom affects other laws and other debates that follow it. Just as the Supreme Court sets precedent in legal rulings, so too the passage of laws and other actions set precedent in how the public understands the issues at play and how politicians can attract support for their own legislative projects. The left has always operated with the knowledge that there’s no off-season here. They are counting on conservative exhaustion, complacence, or both. Conservatives must demonstrate neither.

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Celebrating American Governance

It is an odd experience to be abroad on the Fourth of July–especially in a place as remote as Nepal. No fireworks, no barbecues (except at the U.S. embassy, presumably), in fact no notice at all of what is to Americans one of the most important holidays on our calendar. It does, however, offer a good chance for some perspective on America, and in particular on the great mystery of American history: How did thirteen tiny colonies on the eastern seaboard expand in less than two centuries to become the richest and most powerful nation in the world?

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It is an odd experience to be abroad on the Fourth of July–especially in a place as remote as Nepal. No fireworks, no barbecues (except at the U.S. embassy, presumably), in fact no notice at all of what is to Americans one of the most important holidays on our calendar. It does, however, offer a good chance for some perspective on America, and in particular on the great mystery of American history: How did thirteen tiny colonies on the eastern seaboard expand in less than two centuries to become the richest and most powerful nation in the world?

There is, it must be admitted, an element of serendipity involved: the (primarily) British immigrants who created the United States of America had the good fortune to arrive in a land of abundant natural resources and little in the way of organized military opposition from other nation-states. As Indian tribes were defeated, the road to the West was opened and America could stretch from sea to shining sea. 

But geography is not destiny. Russia, after all, experienced a similar expansion, in its case to the Wild Wild East, taking control of Central Asia and Siberia. Today Russia has more land and arguably greater natural resources than the U.S., yet it is a nation in inexorable decline, its anemic economy propped up by oil prices, its population in long-term decline.

What made the difference in America’s case? Quite simply, good government. The relatively minimalist government created by the Founders unleashed the animal energies of newly arrived immigrants and set them free to build a mighty economic behemoth in ways that no central planner could possibly have envisioned much less brought into being. The reason other large countries have not enjoyed similar good fortune comes down to governance.

This was a point that was brought home to me during a week of travel in India prior to my arrival in Nepal. India is blessed with a large land area and a massive population of 1.2 billion. Its people are in no way intrinsically inferior to those of the United States–in fact Indian immigrants are some of the most successful people in America. 

And during a journey from Mumbai to New Delhi, most of it overland, I was constantly impressed by how hard Indians work for meager wages. Whether it was newspaper vendors getting up at the crack of dawn in Mumbai or a friendly taxi driver shuttling me all day in his beaten-up Ambassador sedan, the industriousness and intelligence of Indians was never in dispute. So why is it that India’s GDP per capita is $1,500 and America’s is $53,000?

Indians are free to blame the legacy of British colonial rule, yet the United States too was a progeny of the British Empire. Granted, Americans were able to rebel much earlier but that is in large part because of the American colonists’ greater unity as opposed to the divisions of India when the British arrived. Indeed British imperialists created the very concept of “India” which had never existed before, and left it with many valuable legacies from railroads to a civil service and a functioning democracy. You can still see the British legacy in cities such as Mumbai in crumbling buildings built in the early 20th century.

In any case India has been free of British rule for nearly 67 years—long enough for other once-impoverished nations such as South Korea to catapult into the ranks of the world’s wealthiest democracies. It is no secret why India has lagged behind: It has been the victim of terrible governance. For decades it adhered to fashionable socialist nostrums. More recently a succession of governments has tried to implement free-market reforms, only to be stymied by the inexorable bureaucracy. 

Not long ago, the Hong Kong-based Political and Risk Consultancy came out with a survey of bureaucracies in Asia. India ranked as by far the worst of the bunch. Worse than Vietnam. Worse than China. Worse than Indonesia. To say nothing of the top performers, Singapore and Hong Kong—both, coincidentally, also former British colonies. As the Wall Street Journal noted: “The report, which was based on over 2,000 surveys of employed residents and expatriates across Asia, blamed India’s poor infrastructure, widespread corruption and ‘fickle’ regulations for making business a ‘frustrating and expensive’ affair.”

I got a small taste for myself of what Indians have to endure when I applied for a visa at the Indian consulate in New York. The visa officer promised to have everything ready in four or five business days but those days came and went with no way to find out where matters stood—and my flight time drawing near. Only by talking to someone who knew someone was I able to get the visa in time. This is, I imagine, a universal experience in India where the bureaucracy functions so poorly that many people find themselves resorting to favoritism or corruption to get what they are legally entitled to get.

Goodness knows, American government bureaucracy is far from ideal. I get pretty frustrated when I deal with the Post Office. I can only imagine what people are going through trying to enroll in ObamaCare. But for all of the U.S. government’s myriad faults, it is considerably more responsive and accountable and less corrupt and inefficient than most other governments around the world.

So ultimately the story of America’s success comes down to the very thing we celebrate on July 4 but should more properly celebrate on September 17 (September 17, 1787, was the date the Constitution was signed): the genius of our Founding Fathers. They created a government which has made it possible for the people of the United States to prosper. Other countries around the world are starting to figure out our formula and in some case to better it, but no other nation has been as well ruled for so long. That is why the United States is still perched, however precariously, as the No. 1 power in the world.

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The Opposition to Religious Liberty Is Partisan–And That’s What Is Dangerous

Anyone watching Congressman Xavier Becerra, Democrat of California, on Fox News Sunday yesterday saw the one significant aspect of the Hobby Lobby case that the Supreme Court would not have solved no matter how it ruled today. Of course, it helped that the high court defended some space for religious freedom in its ruling. But Becerra’s talking points demonstrated just why religious protections must be in place and defended vigorously: religious freedom for its own sake is now a partisan issue.

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Anyone watching Congressman Xavier Becerra, Democrat of California, on Fox News Sunday yesterday saw the one significant aspect of the Hobby Lobby case that the Supreme Court would not have solved no matter how it ruled today. Of course, it helped that the high court defended some space for religious freedom in its ruling. But Becerra’s talking points demonstrated just why religious protections must be in place and defended vigorously: religious freedom for its own sake is now a partisan issue.

Becerra was asked by host Chris Wallace whether business owners must violate their beliefs if the government mandates it. Here is the ensuing exchange (sic throughout; from the transcript):

BECERRA: The government will not violate anyone’s religious beliefs. But no one has the right to discriminate against a woman because of her own beliefs. I believe that the Supreme Court will find that no business –

WALLACE: She doesn’t have to work with the company.

BECERRA: – no business should be allowed to discrimination against women. And we’ve gone beyond that. We should also try to pay them equally for the work they do.

WALLACE: We’re not talking about that. We’re talking about the birth control mandate.

BECERRA: Let’s protect the woman’s rights to be able to earn the same pay and live their lives –

WALLACE: What about the owner’s right to his religious freedom, his religious beliefs?

BECERRA: The owner has a right to his or her religious beliefs, but that doesn’t mean you get to discriminate against women if a woman have different beliefs than what the owner has and the woman wants to exercise her rights under the Constitution.

Notice Becerra–twice–compares “religious beliefs” to any “beliefs.” The owner may hold religious beliefs that would be violated by the contraception mandate. But the employee believes the owner should provide her with any form of birth control she wants. Now we’re at an impasse, according to Becerra’s remarkably preposterous gibberish. According to Becerra’s mindset–and remember, he is offering the Democratic Party take on this case–religious beliefs are no different from political opinions. That is, for the purposes of constitutional law and practice, they don’t exist separate from any random employee demand.

Of course, the Supreme Court did not rule this way, because Becerra’s reasoning, such as it is, discounts the very first passage of the very First Amendment to the Constitution. But the violence Becerra wants to inflict on the Constitution should not be ignored even after the high court rejected it, because it reflects the reason we have this case to begin with: when forced to choose between religious freedom and government coercion, the left will choose government coercion. Combine that with the extent to which the left seeks to expand government power, and you have a troubling erosion of civil society and the private sphere.

That’s evident from this piece by Yishai Schwartz in the New Republic. Schwartz argues that the left is wrong to dismiss the religious freedom issues at play here. He knocks the deeply silly talking point so popular on the left that “corporations aren’t people” and “corporations don’t have beliefs.” He writes: “I certainly hope The New Republic has free-speech rights and the local church has free-exercise rights, even though they are corporations.”

Having acknowledged the legitimacy of the religious protections Hobby Lobby sought, Schwartz also praises the religious freedom “consensus” that has prevailed … until now. What happened? Here Schwartz makes a novel, though thoroughly noxious, attempt at misdirection: “the GOP’s scorched-earth attack of the Affordable Care Act has already claimed its primary victim: religious freedom.”

Schwartz then tries, in vain, to defend his assertion that the party fighting on behalf of religious freedom is really its enemy, and the party assaulting the religious freedom consensus is innocent:

But as conservative media seized on religious freedom suits like Hobby Lobby to bludgeon Obama, the left has increasingly abandoned RFRA. Where liberals once championed a law meant to protect small religious groups from callous majorities, they now see an endless slippery slope of religious conservatives obeying whatever laws they happen to find acceptable.  In religious freedom, the left now sees only a shield that will allow religious conservatives to discriminate against gays and harm women’s reproductive health. In the partisan rancor that has consumed today’s Washington, the consensus in favor of religious accommodations has been shattered.

ObamaCare’s HHS regulations infringed on the religious freedom of Christians. After that infringement, Americans fought for their previously recognized religious rights. According to Schwartz, conservatives should have silently accepted this abrogation of constitutional protections because if they made a scene, liberals would finally concede that they don’t really believe in those protections, and in a fit of rage revolt against the very idea of religious freedom–simply because conservatives are loudly defending it.

I don’t know the Democrats that Schwartz is talking about, but they seem consumed by anger and absolutism. And they–and their apologists like Schwartz–are living proof of just how important it is to fight for and codify these rights. Any political movement that hates conservatives enough to abandon the Constitution because conservatives support it, as does the version of American liberalism Schwartz profiles, is a perpetual argument in favor of conservatives’ effort to preserve religious liberty.

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“Kelo”: The Shame of a Nation

When Sarah Palin was criticized for her inability to answer a series of questions in interviews after her selection as John McCain’s running mate, various commentators each had the one that bothered them the most. The one that caught and held my attention was when Palin was asked which Supreme Court decision–other than Roe v. Wade–she disagreed with. I wasn’t bothered so much by a supposed lack of judicial expertise but rather reminded that conservatives have been too negligent in their outrage at one ruling in particular: the 2005 Kelo decision.

That was when the Supreme Court shredded property rights by upholding a Connecticut town’s eminent domain seizure of private property to transfer to a developer under the guise of improving blighted neighborhoods and thus fulfilling the “public use” requirement under the Fifth Amendment. It’s bunk, of course. I would like to be able to expect conservatives not simply to mention Kelo when asked what non-Roe decision they oppose, but to hiss the words through gritted teeth, preferably with smoke rising from their ears. Kelo was indefensible, an assault not simply on the Constitution but on the pillars of a free society, and a nation that forgets or excuses the high court for its role in this travesty should be ashamed of itself.

I’ve been reminded of this yet again by two very good pieces on the upcoming ninth anniversary of Kelo, one on National Review Online and one in the Weekly Standard, which recount the case and focus on the infuriating fact that the land in question lies empty, a flat monument to loathsome abuse of power and the toxic combination of governmental incompetence and contempt for the law. The essence of the case is that the government is able to forcefully purchase property if its new purpose is for the “public use.” For some time, this phrase was taken literally–land for a rail line, a public road, etc. Justice Stevens’s decision for the majority is a pristine example of how rights can be eroded over time by governmental discretion:

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When Sarah Palin was criticized for her inability to answer a series of questions in interviews after her selection as John McCain’s running mate, various commentators each had the one that bothered them the most. The one that caught and held my attention was when Palin was asked which Supreme Court decision–other than Roe v. Wade–she disagreed with. I wasn’t bothered so much by a supposed lack of judicial expertise but rather reminded that conservatives have been too negligent in their outrage at one ruling in particular: the 2005 Kelo decision.

That was when the Supreme Court shredded property rights by upholding a Connecticut town’s eminent domain seizure of private property to transfer to a developer under the guise of improving blighted neighborhoods and thus fulfilling the “public use” requirement under the Fifth Amendment. It’s bunk, of course. I would like to be able to expect conservatives not simply to mention Kelo when asked what non-Roe decision they oppose, but to hiss the words through gritted teeth, preferably with smoke rising from their ears. Kelo was indefensible, an assault not simply on the Constitution but on the pillars of a free society, and a nation that forgets or excuses the high court for its role in this travesty should be ashamed of itself.

I’ve been reminded of this yet again by two very good pieces on the upcoming ninth anniversary of Kelo, one on National Review Online and one in the Weekly Standard, which recount the case and focus on the infuriating fact that the land in question lies empty, a flat monument to loathsome abuse of power and the toxic combination of governmental incompetence and contempt for the law. The essence of the case is that the government is able to forcefully purchase property if its new purpose is for the “public use.” For some time, this phrase was taken literally–land for a rail line, a public road, etc. Justice Stevens’s decision for the majority is a pristine example of how rights can be eroded over time by governmental discretion:

On the other hand, this is not a case in which the City is planning to open the condemned land–at least not in its entirety–to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id., at 244. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.”

The excuses! We once had a consensus on public use, which amounted to: words have meaning. The courts now admit that, well, words are pregnant with meaning, aren’t they? A test of rights that would be “difficult to administer” becomes justification to discard those rights. Constitutional rights prove “impractical,” because of the “always evolving needs of society.” And who better than the government to interpret which rights go out the window when the “needs of society”–as divined by pompous politicians at the top of local political machines given unconscionable imprimatur of the United States Supreme Court–assert themselves?

I should like to know what other rights are “impractical.” The obvious response to this ridiculous display of state power is: if you think governing according to the Constitution and the God-given rights of a free people is too difficult, then get out of government. And don’t let the door hit you on the way out. Instead, the court seems to sympathize. The state is taking from the poor and giving to the rich, in most cases and almost by definition of this interpretation. But according to the court, the victims here just don’t understand that their further impoverishment and displacement so the government can give their property to those they prefer have it is really about the “always evolving needs of society.”

In 1999, the esteemed historian of Russia Richard Pipes took a break from his usual work to publish a book called Property and Freedom. “The subject of this book differs from that of every book I have ever written, all of which (apart from a college textbook on modern Europe) have dealt with Russia, past and present,” Pipes wrote. “And yet it grows naturally out of my previous work. … In the case of Russia, it is not the presence but the absence of property that is taken for granted.”

Pipes notes that the Western understanding of property has expanded from tangible assets to intellectual property. But it didn’t stop there. He explains that “in Western thought during the seventeenth and eighteenth centuries it acquired a still more comprehensive meaning to include everything that one can claim as one’s own, beginning with life and liberty. The whole complex of modern ideas connected with human rights has its source in such an extensive definition of property. This was noted two hundred years ago by James Madison.”

He goes on to quote Madison to that effect. Respect for private property rights is an essential foundation for a free society–and our Founders knew it and said so. The court’s decision in Kelo looks worse with every passing year, and we shouldn’t forget it for a moment.

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Rescuing the Constitution from “Constitutional Conservatives”

National Review’s Charles C.W. Cooke takes issue with an essay Michael Gerson and I wrote in National Affairs. Mr. Cooke, a thoughtful writer, cites this passage from our essay: 

many of the functions of the modern-day federal government, including Social Security and other social-service programs, were not envisioned by the framers, nor did the enumerated powers of the Congress specifically comprehend such programs. But neither do these federal roles violate a principle of our system or run counter to the prescient mindset of the founders.

Cooke reacts to this observation this way:

I hope I am not being unfair when I say that I detect a whiff of living constitutionalism in this passage — a tendency to subordinate “enumerated powers” to the subjectively imagined “principle of our system” or “prescient mindset of the founders.” The ultimate value of the rule of law is not that it entrenches the positions of men who are long dead but that it establishes the regulations by which governments may operate, outlines the political scheme for all to see, and short-circuits the temporary government’s capacity for caprice. If the authors believe that “the enumerated powers of the Congress” did not “specifically comprehend such programs” as Social Security — which, remember, is not justified by an amendment but by judicial reinterpretation — then they should be up in arms about it. I fail to see how one can acknowledge in one breath that a governing document that is the collective work of a generation of thinkers is being violated, and in the next say that that is what they would have wanted.

Actually, our argument is different than what Cooke presents. The fact that there exist programs created in the 20th century that our Federalist founders didn’t (and couldn’t possibly) envision doesn’t mean that those programs necessarily violate the system of government created by them. Gerson and I lay out in some detail the case for concluding that, “The government created in the late 18th century by the inhabitants of a coastal, agrarian republic was designed to accommodate the development of a more spacious and ambitious nation: an eventuality that many of the founders foresaw and embraced.”

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National Review’s Charles C.W. Cooke takes issue with an essay Michael Gerson and I wrote in National Affairs. Mr. Cooke, a thoughtful writer, cites this passage from our essay: 

many of the functions of the modern-day federal government, including Social Security and other social-service programs, were not envisioned by the framers, nor did the enumerated powers of the Congress specifically comprehend such programs. But neither do these federal roles violate a principle of our system or run counter to the prescient mindset of the founders.

Cooke reacts to this observation this way:

I hope I am not being unfair when I say that I detect a whiff of living constitutionalism in this passage — a tendency to subordinate “enumerated powers” to the subjectively imagined “principle of our system” or “prescient mindset of the founders.” The ultimate value of the rule of law is not that it entrenches the positions of men who are long dead but that it establishes the regulations by which governments may operate, outlines the political scheme for all to see, and short-circuits the temporary government’s capacity for caprice. If the authors believe that “the enumerated powers of the Congress” did not “specifically comprehend such programs” as Social Security — which, remember, is not justified by an amendment but by judicial reinterpretation — then they should be up in arms about it. I fail to see how one can acknowledge in one breath that a governing document that is the collective work of a generation of thinkers is being violated, and in the next say that that is what they would have wanted.

Actually, our argument is different than what Cooke presents. The fact that there exist programs created in the 20th century that our Federalist founders didn’t (and couldn’t possibly) envision doesn’t mean that those programs necessarily violate the system of government created by them. Gerson and I lay out in some detail the case for concluding that, “The government created in the late 18th century by the inhabitants of a coastal, agrarian republic was designed to accommodate the development of a more spacious and ambitious nation: an eventuality that many of the founders foresaw and embraced.”

As for the charge of embracing a “living Constitution”: It is one thing, and I believe quite a problematic thing, for judges to invent and create and impose on the public invented rights. But in the representative democracy the founders created, they certainly believed that within certain parameters the will of the people, ratified in election after election and by Congress after Congress, needed to be taken into account. And Social Security has been ratified in dozens of staggered elections (presidential, Senate, and House) over the course of most of the 20th century and all of the 21st century. No elected representative of any serious standing is arguing for the repeal of Social Security on constitutional grounds; and it hasn’t faced a serious constitutional challenge under either a liberal or a conservative-led Supreme Court in more than a half-century. Yet Cooke seems to believe conservatives should be “up in arms” about it and, I can only assume, energize their movement around an effort to largely dismantle, on constitutional grounds, the New Deal and more.

To help clarify what is, in truth, a pretty interesting and important philosophical discussion–how narrowly or broadly should the enumerated powers in the Constitution be interpreted–it would be instructive for Mr. Cooke to respond to some queries, perhaps starting with this one: Is Social Security unconstitutional? If he believes it is, does Cooke therefore believe conservatives and Republicans should run for elective office and base their governing agenda on repealing Social Security on the grounds that it qualifies as an assault on the Constitution? He seems to suggest they should.

In addition, what do Cooke and others, including so-called “constitutional conservatives” who praised his article, make of the fact that Ronald Reagan, the most important figure in the history of modern conservatism, praised Social Security and went out of his way to assure voters he had no intention of dismantling the New Deal?

In the 1964 speech that effectively launched his political career, Reagan, in describing conservatives, said, “we’re for a provision that destitution should not follow unemployment by reason of old age, and to that end we’ve accepted Social Security as a step toward meeting the problem.” And on April 20, 1983, Reagan signed a bill to preserve Social Security, saying, “This bill demonstrates for all time our nation’s ironclad commitment to Society Security.”

Does Cooke detect a “whiff of living constitutionalism” and a “tendency to subordinate ‘enumerated powers’” in Reagan’s words? Surely he must, since Reagan never challenged the constitutionality of Social Security and the New Deal and in fact affirmed them. Reagan, rather than being “up in arms” over Social Security, the New Deal, and much of the modern state, made his own inner peace with their constitutional legitimacy. Others should as well.

Mr. Cooke also makes this claim: “The federal government is able to do only what the Constitution permits it to do — and, until around 1913, the Constitution prohibited the federal government from doing almost everything.” I can’t help but note that even Thomas Jefferson, who was more skeptical of a strong federal authority than many others of the Founders, managed to conclude the Louisiana Purchase without amending the Constitution to permit so massive an exercise of federal power. The founders, from Washington through Monroe, presided over what at the time were massive changes in the scope and reach of the national government. That continued through the post-founding period to the Civil War–despite the fact that the Constitution was amended only twice during that period (in 1795, limiting suits against states; and in 1804, revising the electoral-college procedure). In addition, the claim that Abraham Lincoln believed the Constitution prohibited the federal government from doing “almost everything” is slightly bizarre. (See the Civil War, the suspension of the writ of habeas corpus, the transcontinental railroad, and the imposition of tariffs and a federal income tax for more.)

It’s worth pointing out, too, that as president James Madison signed the act establishing the Second National Bank. He had opposed the creation of the First National Bank on constitutional grounds but, in revising his views, Madison wrote this:

The charge of inconsistency between my objection to the constitutionality of such a bank in 1791, and my assent in 1817, turns on the question, how far legislative precedents, expounding the Constitution, ought to guide succeeding legislatures, and to overrule individual opinions.

… It was in conformity with the view here taken of the respect due to deliberate and reiterated precedent, that the Bank of the United States, though on the original question held to be unconstitutional, received the executive signature in the year 1817. The act originally establishing a bank had undergone ample discussions in its passage through the several branches of the government. It had been carried into execution through a period of twenty years, with annual legislative recognition –in one instance, indeed, with a positive ramification of it into a new state — and with the entire acquiescence of all the local authorities, as well as of the nation at large; to all of which maybe added, a decreasing prospect of any change in the public opinion adverse to the constitutionality of such an institution. A veto from the executive, under these circumstances, with an admission of the expediency, and almost necessity, of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intention …

In other words, the conduct of elections that tacitly or explicitly endorse existing policy, and people’s decisions with the passage of time to rearrange their own lives in light of the law, all amount to a public ratification. “Madison asserted that legislation passed by Congress and carried out successfully with the approval of the people over a significant period of time sets a precedent of constitutional interpretation for future legislation,” is how one commentator put it. It’s worth recalling that Madison is not only one of the authors of the Federalist Papers, the greatest interpretative work of the Constitution; he is also widely regarded as the “father of the Constitution.” So his example ought to carry significant weight.

One other observation. In a 1981 speech (featured in this book), Senator Daniel Patrick Moynihan made this observation: 

Perhaps the most important act of the Continental Congress was the Northwest Ordinance which provided a direct federal subsidy for education. Almost the first act of the Congress established by the present Constitution was to reaffirm this grant. A plaque on the Sub-Treasury on Wall Street commemorates both actions. This does not invalidate the view that the federal government ought not to exercise any responsibility, but it does make nonsense of the view that the Constitution – presumably because it does not mention the subject – somehow bars such an exercise.

Pace Charles C.W. Cooke, I do not think that virtually the entire modern state–including Social Security, Medicare, Medicaid, the National Institutes of Health, and so much more–is unconstitutional. But he and others like him apparently do, so they really should lay out what they realistically intend to do about it. And in doing so, they should explicitly state whether they consider Ronald Reagan, whom I consider to be among the handful of greatest presidents in our history, to have been an apostate when it comes to fidelity to the Constitution he swore to uphold.

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Ornstein vs. Ornstein on Presidential Recess Appointments

On the New York Times op-ed page, Norman J. Ornstein argues the pending challenge to President Obama’s recess appointments “represents the biggest threat to presidential power in decades”–something he views with alarm. He concedes the recess power was not intended to deal with political disputes between the president and the Senate, but only to allow presidents to appoint officials when it was impractical to summon the Senate back to Washington to confirm them. But he views the recess appointment power as “a modest safety valve to ameliorate the worst abuses of Senate power” when the opposition party controls the Senate.

Seven years ago, with a different president and a different opposition party, Ornstein viewed something else with alarm–presidential recess appointments.

President Bush gave recess appointments to Sam Fox as ambassador to Belgium, Susan Dudley to the Office of Management and Budget, and Andrew Biggs as deputy commissioner of the Social Security Administration. Ornstein viewed the Biggs appointment “an ‘up yours’ gesture to the Senate Finance Committee”; the Dudley appointment “shocking,” because she “probably” would have been approved under normal procedures; and the Fox appointment as one made during the Senate’s Easter and Passover break. Here was his analysis, in an article entitled “Time for Congress to Stand Up to Bush on Recess Appointments”:

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On the New York Times op-ed page, Norman J. Ornstein argues the pending challenge to President Obama’s recess appointments “represents the biggest threat to presidential power in decades”–something he views with alarm. He concedes the recess power was not intended to deal with political disputes between the president and the Senate, but only to allow presidents to appoint officials when it was impractical to summon the Senate back to Washington to confirm them. But he views the recess appointment power as “a modest safety valve to ameliorate the worst abuses of Senate power” when the opposition party controls the Senate.

Seven years ago, with a different president and a different opposition party, Ornstein viewed something else with alarm–presidential recess appointments.

President Bush gave recess appointments to Sam Fox as ambassador to Belgium, Susan Dudley to the Office of Management and Budget, and Andrew Biggs as deputy commissioner of the Social Security Administration. Ornstein viewed the Biggs appointment “an ‘up yours’ gesture to the Senate Finance Committee”; the Dudley appointment “shocking,” because she “probably” would have been approved under normal procedures; and the Fox appointment as one made during the Senate’s Easter and Passover break. Here was his analysis, in an article entitled “Time for Congress to Stand Up to Bush on Recess Appointments”:

Were I Associate Justice Antonin Scalia, an avowed originalist, looking at the plain language of the Constitution, the words of the authors of the document and those addressing the issue during the ratification debates, and the context for the framers at the time, my conclusion would be crystal clear. Back in those days Congress met only for brief periods and was adjourned for many months at a time. There were many occasions when important posts were vacant and nine months might pass before the Senate could convene to confirm the president’s nominees. No one at the time–no one–argued that the recess appointment power was to be used for other, broader purposes, especially in cases where the president was simply trying to make an end run around the Senate. …

In modern times, when Congress is in session virtually year-round, the original rationale for recess appointments has shriveled, leaving very few truly legitimate cases. … In his eight years in the White House, President Ronald Reagan made 243 recess appointments. President George H. W. Bush made 77 in his single term; President Bill Clinton made 140 in two terms. President George W. Bush has made 171 so far. Most of these were relatively minor, but some, including judges, were not. …

The bottom line is that if these [Bush appointments] are not the first recess appointments that skirted the intent of the framers and distorted and abused the Constitution, they are among the most blatant. … Every time a president abuses a power like this one, stretching the circumstances under which he will use recess appointments, it becomes a precedent for his successors, who will use his actions as a base point to stretch the power even further. The more the power is used with impunity, the more the core principles of the separation of powers are eroded. … [I]t is time to put some limits on a presidential abuse of power that has gone way too far.

It would take a constitutional law instructor from Chicago to think up a way to make “in your face” recess appointments in a manner so abusive they dwarfed what Bush did–and perhaps only the New York Times to publish an op-ed suggesting the Supreme Court write an opinion “leaving intact the accepted practices,” written by someone who seven years ago not only didn’t accept them, but realized the plain language of the Constitution doesn’t either.  

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A Moment of High Constitutional Candor

As John Steele Gordon predicted, the Supreme Court argument on President Obama’s “recess” appointments was “high constitutional drama.” SCOTUSblog reports there were long lines and cameras outside, a full press gallery inside, and both White House spokesman Jay Carney and Senate Minority Leader Mitch McConnell in attendance. The Court appears ready to rule that Obama exceeded his constitutional power to fill “Vacancies that may happen during the Recess of the Senate” by deciding for himself the Senate was in recess when the Senate considered itself in session. 

There was also a moment of what we can call “high constitutional candor” during Miguel Estrada’s amicus argument on behalf of McConnell. As John noted, President Obama nominated two people to the NLRB on December 13, 2011, days before Congress adjourned for the holidays, and then purported to give them recess appointments on January 4, 2012, one day after the second session of the 112th Congress began. Estrada argued it is undisputed that the Appointments Clause gives the Senate an absolute veto over nominations, and there is no power set forth in the Constitution to use the Recess Appointments Clause to overcome Senate opposition: 

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As John Steele Gordon predicted, the Supreme Court argument on President Obama’s “recess” appointments was “high constitutional drama.” SCOTUSblog reports there were long lines and cameras outside, a full press gallery inside, and both White House spokesman Jay Carney and Senate Minority Leader Mitch McConnell in attendance. The Court appears ready to rule that Obama exceeded his constitutional power to fill “Vacancies that may happen during the Recess of the Senate” by deciding for himself the Senate was in recess when the Senate considered itself in session. 

There was also a moment of what we can call “high constitutional candor” during Miguel Estrada’s amicus argument on behalf of McConnell. As John noted, President Obama nominated two people to the NLRB on December 13, 2011, days before Congress adjourned for the holidays, and then purported to give them recess appointments on January 4, 2012, one day after the second session of the 112th Congress began. Estrada argued it is undisputed that the Appointments Clause gives the Senate an absolute veto over nominations, and there is no power set forth in the Constitution to use the Recess Appointments Clause to overcome Senate opposition: 

And for all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles, there is no parade, and there is no horrible. The only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that the Appointments Clause actually calls for. That was not viewed as an evil by the Framers. That was what the Framers unanimously agreed was going to be the principal means for appointments … 

[The president] could have had a better legal argument in attempting to claim that between December 3oth and January 3rd there was at least an arguable inter-session recess. And he did not do that. Why didn’t he? Because by waiting until the convening … of the second session of the 112th Congress, by making an appointment on January 4th instead of the morning of January 3rd, he gives an extra year to his appointees to serve … It is a complete abuse of the process. It is being used for no other purpose than to overcome the Senate opposition or the Senate disinclination to agree with the president’s nominations. 

What the Framers contemplated in coming up with a joint power of appointment was you have to act jointly. You have to play nice. And in a country of 300 million people, when the president wants a nominee and the Senate does not agree, it is always possible for the president to come up with another nominee who is even more qualified and acceptable to the Senate. 

It was also a moment of “high constitutional irony,” because Miguel Estrada was nominated by President Bush in May 2001 to the D.C. Circuit Court of Appeals, but withdrew his name more than two years later, after his nomination was blocked by Senate Democrats using their filibuster power. Estrada is a Honduran immigrant who went to Harvard law school, clerked for Supreme Court Justice Kennedy, served as a prosecutor in the U.S. Attorney’s Office in New York and as assistant solicitor general during the Clinton administration. His credentials could hardly have been higher. But Democrats did not want Bush to get credit for nominating a Hispanic to a court sometimes seen as a steppingstone to the Supreme Court. 

Here is the irony: after Estrada finally withdrew his name in 2003, Sen. Edward Kennedy told the press the withdrawal was “a victory for the Constitution” because “it reflects a clear recognition by Miguel Estrada, and, hopefully this White House, that under the Constitution the Senate has shared power over judicial appointments.”

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Compromise, Moderation, and the American Constitution

Those interested in a cogent defense of the budget agreement that passed the House late last week, and which sparked a storm of criticism from some on the right, should listen to this interview by House Budget Chairman Paul Ryan.  

Among other things, Ryan addresses the charge that the problem with the deal is that it raises spending now in exchange for future (and imaginary) cuts later. Chairman Ryan points out that this deal would result in a change in law now–and that unless a future Congress passes a new law, the entitlement savings it calls for will actually exceed the $85 billion figure often cited. (The reason that is quite unlikely is explained here.)

The reaction to the deal, from some quarters at least, also highlighted what I view as a problematic mindset among some on the right. We saw it manifest itself during the budget shutdown in October, when several GOP Senators refused to “abandon their infatuation with glorious martyrdom,” in the words of Michael Medved and John Podhoretz in their excellent essay in the current issue of COMMENTARY. The result was injurious to both the GOP and the conservative cause. But no matter; they had passed the purity test. 

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Those interested in a cogent defense of the budget agreement that passed the House late last week, and which sparked a storm of criticism from some on the right, should listen to this interview by House Budget Chairman Paul Ryan.  

Among other things, Ryan addresses the charge that the problem with the deal is that it raises spending now in exchange for future (and imaginary) cuts later. Chairman Ryan points out that this deal would result in a change in law now–and that unless a future Congress passes a new law, the entitlement savings it calls for will actually exceed the $85 billion figure often cited. (The reason that is quite unlikely is explained here.)

The reaction to the deal, from some quarters at least, also highlighted what I view as a problematic mindset among some on the right. We saw it manifest itself during the budget shutdown in October, when several GOP Senators refused to “abandon their infatuation with glorious martyrdom,” in the words of Michael Medved and John Podhoretz in their excellent essay in the current issue of COMMENTARY. The result was injurious to both the GOP and the conservative cause. But no matter; they had passed the purity test. 

Then there are those who fancy themselves as “constitutional conservatives” who view efforts at compromise as per se evidence of lack of principles. Virtually every time they invoke the word “compromise,” it is a pejorative. This strikes me as somewhat puzzling for “constitutional conservatives.” In the past I’ve cited a lovely passage in Miracle at Philadelphia in which Catherine Drinker Bowen writes, “In the Constitutional Convention, the spirit of compromise reigned in grace and glory; as Washington presided, it sat on his shoulder like the dove.”

The Constitution was the result of a whole series of accommodations. There was even a deal struck that came to be known as the Great Compromise, by which every state was to have two members in the United States Senate, offsetting proportional representation in the House. Without the Great Compromise, Bowen writes, “it is hard to see how the Federal Convention could have proceeded further.” Which means the Constitution that some on the right say they revere would never have seen the light of day.

Some modern conservatives have a similar disdain for the word “moderation,” the spirit and temperament that allows for compromise. But if one reads The Federalist Papers–universally regarded as the best commentary on our Constitution and authored by two of the three most important founders (Madison and Hamilton)–one finds the word “moderation” used in a positive sense in almost every instance. In Federalist No. 37, for example, Madison refers to “that spirit of moderation” that is essential in understanding which public measures are in the public good, while in Federalist No. 85 Hamilton writes, “These judicious reflections contain a lesson of moderation to all sincere lovers of the Union.”

Now for the necessary caveats: Compromise and moderation can, in particular circumstances, set back the cause of liberty and the public good. It’s impossible to know whether a compromise is wise without knowing the details of any given deal. And we certainly need people in politics who insist not simply on compromise but also take steps toward certain ideals. Most of us gravitate toward one end of the continuum at the expense of the other.

In any event, my main point is that today–especially among those who claim fidelity to the Constitution and its authors and architects–the idea of compromise and moderation is held in contempt. The problem is that this attitude is at odds with the Constitution and the Federalist founders. To position conservatism as for all intents and purposes hostile to compromise and moderation is, I think, an act of philosophical and historical disfigurement, and unwise politically.

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Don’t Let Technocrats Set the Terms of the ObamaCare Debate

Now that the utterly disastrous rollout of ObamaCare has outlasted the government shutdown, it’s the Democrats’ turn for some unflattering time in the media spotlight. But the conservative reaction to the ObamaCare belly flop risks letting Democrats shift the conversation onto more favorable terrain, and demonstrates the extent to which some big-government victories cannot be completely rolled back.

Conservatives have noted that ObamaCare’s early failures are indicative of a broader failure of the technocratic approach to governing. This is undoubtedly true, but I don’t expect this argument to lead where many conservatives think it leads. The federal government has failed in the past and will fail again–the latter point being key. The government will at some point get the chance to attempt a massive top-down reform that centralizes power in the hands of well-meaning but completely incompetent technocrats because of the simple reality of modern American politics.

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Now that the utterly disastrous rollout of ObamaCare has outlasted the government shutdown, it’s the Democrats’ turn for some unflattering time in the media spotlight. But the conservative reaction to the ObamaCare belly flop risks letting Democrats shift the conversation onto more favorable terrain, and demonstrates the extent to which some big-government victories cannot be completely rolled back.

Conservatives have noted that ObamaCare’s early failures are indicative of a broader failure of the technocratic approach to governing. This is undoubtedly true, but I don’t expect this argument to lead where many conservatives think it leads. The federal government has failed in the past and will fail again–the latter point being key. The government will at some point get the chance to attempt a massive top-down reform that centralizes power in the hands of well-meaning but completely incompetent technocrats because of the simple reality of modern American politics.

The inadvisability of the expansion of the welfare state was clear before ObamaCare became law. But it was enacted anyway because Democrats had enough votes in Congress to approve it, and because Democrats held the White House, thus preventing a veto. Give the technocrats some credit: they may not be able to build a website (in 2013!), but they can do basic math. They also know that voters don’t like to give up entitlements, no matter the condition of the federal budget or the efficacy of the programs.

Medicaid is a perfect example of the latter, because studies show its beneficiaries are better off without it, health-wise. Medicaid also has some relevance to the ObamaCare debate because that failed program is a key component of this new one: ObamaCare expands insurance in part by expanding Medicaid. We have the data on Medicaid, yet we also got ObamaCare. Why? Because the people to whom it is possible to discredit big-government technocracy are not elected Democrats.

Now, it’s true that the discrediting of left-liberal technocrats can prevent a recurrence of federal power grabs in the near term, not least by capitalizing on the initial voter opposition to the expansion of the welfare state before it’s too late to kick the habit of the latest entitlement and thus turn Democrats out of office in favor of non-Democrats. But how is that working for the GOP these days? ObamaCare has been unpopular all along, yet its namesake president was reelected and the Democrats held the Senate.

Ross Douthat gets at this reality in his insightful Sunday column, but only hints at the underlying dynamic. He writes that if the ObamaCare web portal doesn’t get fixed and the individual mandate must be delayed, the much-feared “death spiral,” in which only the least healthy–and thus most expensive–sign up for insurance, causing the system’s financial collapse, could ensue. If that happens, Douthat writes, “there will be a lot of schadenfreude on the right at the spectacle of technocratic failure. But the wreck of the exchanges may actually be worse for conservative policy objectives than a more successful rollout would have been.” The reason for that is:

In that scenario, the Democratic Party would probably end up pushing, not for the pipe dream of true single payer, but for a further bottom-up/top-down socialization, in which Medicare is offered to 55- to 65-year-olds and Medicaid is eventually expanded even more.

Meanwhile, the task for serious conservative reformers — already not the most politically effective bunch — might actually become harder, because they would have to explain how their plan to build an effective, exchange-based marketplace differed from the Obama White House’s exchange fiasco.

Implicit in this explanation is the partisan divide. Douthat, a conservative reformer himself, worries that health-care technocrats will be discredited–on the right. This goes back to my earlier point: big-government technocracy can only be discredited among one of the country’s two major political parties today. That doesn’t mean it will be discredited completely on the right. Mitt Romney was, after all, the party’s presidential nominee a year ago.

So Douthat is left with what strikes me as an unbelievably depressing conclusion:

So while Republican politicians may be salivating over a potential Obamacare crisis, the conservative policy thinkers I know are not. They’re hoping, as I’m hoping, that this isn’t as bad as it looks. The chance to say “I told you so” is always nice, but not if the price is a potentially irrecoverable disaster.

That boils down to: the Democrats are in the process of at least partially ruining a major American industry; if the project goes off the rails, the Democrats will in all likelihood completely destroy the industry.

And herein lies the admittedly modest victory of ObamaCare, and the left more generally. The core argument against ObamaCare was not that it would fail, but that it was unconstitutional. Even John Roberts seemed to agree, otherwise he would have had no reason to take the objectionable step of rewriting the law from the bench in order to uphold its legality.

And what did Americans discover about ObamaCare long before the fact that its web design seemed to be sketched by crayon on a placemat? They found out that it mandated contraception coverage, yet another violation of Americans’ constitutional rights. Is the argument against the birth-control mandate that it is too expensive? Perhaps that argument can be made, but it is obviously not the real issue. The real issue is that it is a brazen violation of the First Amendment.

To be sure, ObamaCare is also unlikely to be a success, though that of course depends on the metric used make such a judgment. But the birth-control mandate is quite likely to be “successful,” in that it will do exactly what Democrats designed it to do and put the government in the bedroom of every American so that it can pay for what transpires therein. And in that case, its very success is the reason to argue against it: the law tramples on basic American rights.

There is, certainly, something attractive about arguing against technocracy based on numbers instead of principles. The media doesn’t take seriously the principled arguments because the American left thinks the basis for the Bill of Rights is inoperable and inherently ridiculous. When Breitbart’s Ben Shapiro debated CNN’s Piers Morgan on gun control, Shapiro posited that the Founders believed the individual right to bear arms was a guard against tyranny. CNN’s website offers this recounting of part of the exchange:

“They need them for the prospective possibility of resistance to tyranny,” he explained.

“Where do you expect the tyranny to come from?” wondered Morgan.

“It could come from the United States,” came Shapiro’s answer.

“Do you understand how absurd you sound?” asked the host.

It is quite true that the Founders envisioned constitutional rights as a bulwark against the rise of a tyrannical government. But the left seems to believe that those rights don’t go into force until tyranny is imminent; therefore, any suggestion that we do something because the Constitution advises it is itself an accusation that the government is already casting the shadow of tyranny over the republic.

Conservatives can and should argue that the technocratic impulses of the left lead to bad policy. They plainly do. And the right’s options may be limited now that ObamaCare has survived the individual mandate’s Supreme Court challenge. But conservatives will be making a mistake if they decry technocrats yet allow them to set the boundaries of political debate.

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Compromise and the American Constitution

In a fascinating essay in National Affairs, Jonathan Rauch writes in praise of compromise, saying that “in our constitutional system, compromise is not merely a necessary evil but a positive good.” Rauch argues that compromise is part of the Madisonian framework–“the most essential principle of our constitutional system.” He adds, “Those who hammer out painful deals perform the hardest and, often, highest work of politics; they deserve, in general, respect for their willingness to constructively advance their ideals, not condemnation for treachery.”

In his essay, written with conservatives in mind, Rauch represents, in a fair-minded way, the Tea Party case against compromise. And to be sure, the virtue of compromise depends on circumstances and the nature of any given deal. It’s also quite possible to become so enchanted with the idea of compromise that we undervalue or, in the name of compromise, erode the principles that ennoble politics. Still, Rauch is on to something important when he warns against those who ideologically oppose compromise; who view it per se as suspect. That attitude is particularly problematic for those who refer to themselves as “constitutional conservatives.”

Why? Because anyone familiar with the history of the Constitution understands the central role compromise played in its creation. For example, the Constitutional Convention was deadlocked and on the verge of being derailed until the so-called Grand Compromise–offered up by Roger Sherman and Oliver Ellsworth–reconciled the interests of small and large states. (Each state’s House members would be elected by the people and based on state population while each state would be represented by two senators chosen by the state legislatures.) As John J. DiIulio Jr. and the late James Q. Wilson argue in their textbook American Government, “After the Great Compromise many more issues had to be resolved, but by now a spirit of accommodation had developed.” The electoral college was the result of compromise; so was determining how Supreme Court justices were picked and the length of time a president could serve. And then there was the thorniest issue of all, slavery.
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In a fascinating essay in National Affairs, Jonathan Rauch writes in praise of compromise, saying that “in our constitutional system, compromise is not merely a necessary evil but a positive good.” Rauch argues that compromise is part of the Madisonian framework–“the most essential principle of our constitutional system.” He adds, “Those who hammer out painful deals perform the hardest and, often, highest work of politics; they deserve, in general, respect for their willingness to constructively advance their ideals, not condemnation for treachery.”

In his essay, written with conservatives in mind, Rauch represents, in a fair-minded way, the Tea Party case against compromise. And to be sure, the virtue of compromise depends on circumstances and the nature of any given deal. It’s also quite possible to become so enchanted with the idea of compromise that we undervalue or, in the name of compromise, erode the principles that ennoble politics. Still, Rauch is on to something important when he warns against those who ideologically oppose compromise; who view it per se as suspect. That attitude is particularly problematic for those who refer to themselves as “constitutional conservatives.”

Why? Because anyone familiar with the history of the Constitution understands the central role compromise played in its creation. For example, the Constitutional Convention was deadlocked and on the verge of being derailed until the so-called Grand Compromise–offered up by Roger Sherman and Oliver Ellsworth–reconciled the interests of small and large states. (Each state’s House members would be elected by the people and based on state population while each state would be represented by two senators chosen by the state legislatures.) As John J. DiIulio Jr. and the late James Q. Wilson argue in their textbook American Government, “After the Great Compromise many more issues had to be resolved, but by now a spirit of accommodation had developed.” The electoral college was the result of compromise; so was determining how Supreme Court justices were picked and the length of time a president could serve. And then there was the thorniest issue of all, slavery.
 The Southern delegates would never have supported the new Constitution if it meant the abolition of slavery. And so compromises were made in terms of representation (the South wanted slaves counted as full persons in order to increase their representation in Congress; eventually slaves were considered three-fifths of a person); in terms of delaying the prohibition on the importation of slaves (until the year 1808); and in dealing with escaped slaves (those who fled to non-slave states would be returned to their masters if caught).

Slavery was a moral obscenity–but in the words of Madison, “great as the evil is, a dismemberment of the union would be worse.” What the more enlightened founders hoped is that the Constitution would put in place the elements to end slavery. Frederick Douglass, the former slave who became a great abolitionist leader, would later say, “Interpreted as it ought to be interpreted, the Constitution is a glorious liberty document.” 

In her splendid book Miracle at Philadelphia, Catherine Drinker Bowen wrote, “In the Constitutional Convention, the spirit of compromise reigned in grace and glory. As Washington presided, it sat on his shoulder like the dove. Men rise to speak and one sees them struggle with the bias of birthright, locality, statehood…. One sees them change their minds, fight against pride and when the moment comes, admit their error.”

I understand that among conservatives these days the idea of compromise is out of favor. And for understandable reasons: In Barack Obama the right is facing an unusually rigid and dogmatic individual, one who is himself averse to compromise and is intentionally polarizing. (Polarizing the electorate turned out to be his only ticket to reelection.)  

But perhaps because compromise as a concept is so unpopular these days–at least if my recent correspondence and conversations with those on the right is any indication–it is important that those of us who are conservative remind ourselves of its virtues. To point out that compromise is not always synonymous with weakness. That our problems, as significant as they are, pale in comparison to what the founders faced. And that compromise still belongs, in the words of Rauch, in the “constitutional pantheon.” Even the Obama presidency, as frustrating as it might be, cannot undo the marvelous handiwork and enduring insights of James Madison.

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Political Moderation and the Conservative Disposition

Peter Berkowitz has written an outstanding book, Constitutional Conservatism, whose central aim is to “recover the constitutional connection between liberty, self-government, and political moderation.”

In discussing political moderation, Berkowitz does not mean lack of principle or expedience. Rather, what he has in mind is a conservative disposition that accommodates and balances competing principles. “The Constitution weaves political moderation well understood into the very structure of self-government,” he says. Berkowitz writes that constitutional conservatism “stresses that balancing worthy but conflicting political principles depends on cultivating the spirit of political moderation institutionalized by the Constitution.” It understands that liberty is sometimes in tension with tradition. It places a premium on prudence and takes into account shifting circumstances and public sentiments. And the Constitution, Berkowitz points out, promotes a spirit of balance, weaves together diverse human elements and political principles, and is itself a complex institutional arrangement that was the result of extraordinary political compromises.

This might all seem quite obvious, except that there is a current of opinion within conservatism that believes political moderation is a vice, a safe harbor for the unprincipled. That is what makes Berkowitz’s reclamation project an important one.

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Peter Berkowitz has written an outstanding book, Constitutional Conservatism, whose central aim is to “recover the constitutional connection between liberty, self-government, and political moderation.”

In discussing political moderation, Berkowitz does not mean lack of principle or expedience. Rather, what he has in mind is a conservative disposition that accommodates and balances competing principles. “The Constitution weaves political moderation well understood into the very structure of self-government,” he says. Berkowitz writes that constitutional conservatism “stresses that balancing worthy but conflicting political principles depends on cultivating the spirit of political moderation institutionalized by the Constitution.” It understands that liberty is sometimes in tension with tradition. It places a premium on prudence and takes into account shifting circumstances and public sentiments. And the Constitution, Berkowitz points out, promotes a spirit of balance, weaves together diverse human elements and political principles, and is itself a complex institutional arrangement that was the result of extraordinary political compromises.

This might all seem quite obvious, except that there is a current of opinion within conservatism that believes political moderation is a vice, a safe harbor for the unprincipled. That is what makes Berkowitz’s reclamation project an important one.

An oddity in our time is that some on the right who very nearly deify the founders and the Constitution fail to understand what Berkowitz calls “the unceasing need in the politics of a free society to adjust and readjust, balance and rebalance, calibrate and recalibrate… The Federalist reinforces the lesson of moderation inscribed in the Constitution it expounds and defends.”

There have always been those in politics who are animated by the auto-da-fe. They thrive on relentless confrontation and want to (in the words of Ronald Reagan) go over the cliff with all flags flying. To be sure, such individuals can be a source of energy in a political party. They can also serve the purpose of stiffening spines when that is needed. And they may even be on the correct side of many public policy issues.

Yet it strikes me that in a deep sense, they do not possess a conservative disposition or even a particularly conservative outlook on the world. Rather, they have reinterpreted conservatism in order to fit their own temperament, which seems to be in a near-constant state of agitation, ever alert to identify and excommunicate from the ranks those they perceive as apostates. One day it is Chris Christie; the next day it is Bob McDonnell, or Jeb Bush, or Mitch Daniels, or Eric Cantor, or Lindsay Graham, or Mitch McConnell, or someone somewhere who has gone crosswise of those who view themselves as prefects of the Congregation for the Doctrine of the Faith.

There is a different conservative disposition to which we can look, one which was embodied in Michael Oakeshott, one of the most respected intellectual spokesmen for British conservatism in the latter half of the 20th century. In her 1975 essay on Oakeshott (which is reprinted here), the historian Gertrude Himmelfarb said the key word describing the conservative disposition was “enjoyment.” Unlike the rationalist, who is “always lusting after something that is not,” the conservative tends to find delight in the gifts and blessings we have. Conservatives do not grow angry when the world refuses to conform to their ideals, nor do they see the present only as, in Oakeshott’s phrase, “a residue of inoppportunities.” He did not view the human situation as dark or dreary. 

At the end of her essay, Himmelfarb writes about the Oakeshott she knew, “with whom conversation, even controversy, was a sheer delight.” She continues:

He did not avoid disagreement; there was nothing wimpish about him. But he confronted it with such good nature and good humor that he always won the argument (he would never, of course, have called it that) by default, so to speak. It is not often that the person and the philosopher are so totally congruent. The “conservative disposition” – the disposition to enjoy what is rather than pining for what might be, to appreciate the givens and the goods of life without wanting to subject them to social or political validation – that is a perfect description of his own temperament… Oakeshott’s conservatism, like his temperament, is something of a rarity these days. 

It is still a rarity these days – rarer at least than it should be. Because while passion in politics is a fine, even admirable, thing, so too is winsomeness, a certain generosity of spirit, and even a touch of grace. 

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Making a Federal Case Out of “The”

The D.C. Circuit’s 46-page opinion in Canning v. NLRB (ably analyzed by John Steele Gordon) is a master class for law students, legislators, and lawyers–an illustration of the first rule of constitutional interpretation: before you refer to legislative or judicial history, or how a “living” Constitution might read if you could re-write it, or the words in invisible ink in the “penumbras”–look at the words as written, and determine what they meant to those who adopted them.

The Recess Appointments Clause provides the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” Canning contended “the Recess” is the period between sessions of the Senate, when it is by definition unavailable to receive and act on nominations from the president. The NLRB argued the president could act during any break in the Senate’s business (and determine for himself when a sufficiently long one occurred). The court held the NLRB failed to note that the Constitution references “the Recess,” not “recesses.” Here is the key portion of the opinion:

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The D.C. Circuit’s 46-page opinion in Canning v. NLRB (ably analyzed by John Steele Gordon) is a master class for law students, legislators, and lawyers–an illustration of the first rule of constitutional interpretation: before you refer to legislative or judicial history, or how a “living” Constitution might read if you could re-write it, or the words in invisible ink in the “penumbras”–look at the words as written, and determine what they meant to those who adopted them.

The Recess Appointments Clause provides the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” Canning contended “the Recess” is the period between sessions of the Senate, when it is by definition unavailable to receive and act on nominations from the president. The NLRB argued the president could act during any break in the Senate’s business (and determine for himself when a sufficiently long one occurred). The court held the NLRB failed to note that the Constitution references “the Recess,” not “recesses.” Here is the key portion of the opinion:

When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. [Citation]. Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) … Unlike “a” or “an,” that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference.

 Six times the Constitution uses some form of the verb “adjourn” or the noun “adjournment” to refer to breaks in the proceedings of one or both Houses of Congress. … Not only did the Framers use a different word, but none of the “adjournment” usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.

The court went on to address the Federalist Papers, the purpose of the provision, the history of its use, the opinions in other circuits, and other legal materials, but the crux of the opinion was its starting point–the actual words of the provision in dispute, and what they meant to those who enacted them.  

It is worth remembering that the history of American constitutional law shows that even a semi-colon or comma can affect the meaning of a provision. In The Citizen’s Constitution: An Annotated Guide, Seth Lipsky describes the battle over the comma after the word “Excises” in Article 1, Section 8. That provision gives Congress the power to “lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defense and general Welfare of the United States.” Lipsky recounted that:  

One of the wiliest of the founders, Gouverneur Morris, plotted at the Convention in Philadelphia to change this comma to a semi-colon. He wanted to alter the meaning of the sentence to create, in the clause following this comma, a separate and unlimited [general welfare] power. In the sentence as it currently exists — its original form — the grammar is that the words following the comma are not a general grant of power … but a limitation on the taxing power. … [Morris’s] plot to change the text by adding a dot point over the comma was discovered and foiled by the other founders, a point on which Albert Gallatin testified to the House of Representatives in 1798.

President Obama has occasioned a large number of constitutional moments, as he sought to make the Commerce Clause a power to regulate decisions not to engage in commerce; established a new “shared responsibility payment” power to uphold the Obamacare penalty as a “tax”; argued he can ignore legislation regarding an individual’s passport if he determines it could affect the Middle East “peace process”; and issued executive orders on things he previously said he lacked presidential power to mandate. In Canning, he sought a power to make appointments whenever he determined the Senate was in “a recess,” even though it was not in “the Recess.” The case turned on the Constitution’s use of the definite article “the” and the singular word “Recess.”

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The Chief Justice’s Irresponsible Decision

I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.

Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.

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I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.

Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.

Conservatives who are (justifiably) upset with Roberts’ decision shouldn’t understate Roberts’ contribution to conservative jurisprudence. As a good friend put it to me, these three premises are absolutely central to contemporary conservative legal thought—and those arguments are now effective law. For example, his dramatically narrowed reading of the Commerce Clause is now binding precedent. This is no small achievement. Lower court judges cannot countermand it unless the Supreme Court itself does so in a future case. And this particular Court, at least, is unlikely to do that. In that respect, then, Chief Justice Roberts moved the Court in a rightward direction—and, his defenders will say, he did so by showing self-restraint and without igniting a political war.

Perhaps. But in the end, Roberts decided the case wrongly—and one cannot help but believe he did so knowingly.

It seems clear that what animated Roberts’ decision was his determination to (in his mind) protect the reputation of the Court by preventing it from overturning the signature domestic achievement of the Obama administration. If the Supreme Court had overturned the Affordable Care Act, it would rank among the most significant (and controversial) cases in American history. Roberts, a man with modest, institutionalist tendencies, did not want to emblazon the Affordable Care Act in government textbooks forever more.

Which makes his decision understandable—but still, in my mind, ultimately irresponsible. Roberts decided on a pre-ordained outcome; he would uphold the Affordable Care Act by essentially re-writing it—an unusual approach for a man who has in the past insisted that it’s inappropriate for the Court to legislate from the bench.

The main challenge Roberts faced was to jerry-rig a (Tax Clause) argument to get him to where he was determined to end up. He employed specious, result-oriented reasoning in order to achieve an unprincipled—but for him, an institutionally desirable—outcome.

It was simply not his place to do this. And on what may have been the most important decision he is ever called upon to write, John Roberts produced a political, even disingenuous, and too-clever-by-half opinion. (Consider the withering dissent by Justices Scalia, Kennedy, Thomas and Alito to be mandatory reading. “What the government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution,” according to the four Justices. “That carries verbal wizardry too far, deep into the forbidden land of the sophists.”)

Chief Justice Roberts put what he perceived to be the interest of the Court ahead of his fidelity to the Constitution. He ended up doing damage to both.

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Still More Liberal Legal Meltdown

A letter in today’s Wall Street Journal, responding to Michael McConnell’s op-ed on “The Liberal Legal Meltdown Over ObamaCare,” acknowledges that “liberal constitutionalists” are ill-suited to cry “judicial activism,” having long advocated a philosophy that “unmoors constitutional interpretation from the actual text of the Constitution.” But the writer goes on to assert that “no real judicial conservative” should argue ObamaCare is unconstitutional, because to suggest Congress is not “regulating a form of economic activity” by mandating insurance purchases is “conceptual and economic sophistry.”

Later this month, the Supreme Court will likely decide whether the power to “regulate commerce” includes the power to order individuals to engage in it so Congress can regulate them. An affirmative answer would seem to convert a specifically-enumerated power into an unlimited mandate over any significant economic decision, including a decision not to participate in commerce designed by Congress. Such a conclusion might be attractive to a “liberal constitutionalist,” but it is hard to see why a “real judicial conservative,” or anyone else who felt bound by the text of the Commerce Clause, would buy it.

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A letter in today’s Wall Street Journal, responding to Michael McConnell’s op-ed on “The Liberal Legal Meltdown Over ObamaCare,” acknowledges that “liberal constitutionalists” are ill-suited to cry “judicial activism,” having long advocated a philosophy that “unmoors constitutional interpretation from the actual text of the Constitution.” But the writer goes on to assert that “no real judicial conservative” should argue ObamaCare is unconstitutional, because to suggest Congress is not “regulating a form of economic activity” by mandating insurance purchases is “conceptual and economic sophistry.”

Later this month, the Supreme Court will likely decide whether the power to “regulate commerce” includes the power to order individuals to engage in it so Congress can regulate them. An affirmative answer would seem to convert a specifically-enumerated power into an unlimited mandate over any significant economic decision, including a decision not to participate in commerce designed by Congress. Such a conclusion might be attractive to a “liberal constitutionalist,” but it is hard to see why a “real judicial conservative,” or anyone else who felt bound by the text of the Commerce Clause, would buy it.

As for conceptual and economic sophistry, nothing is likely to top Justice Breyer’s suggestion during oral argument that, on the day you were born, “because you are a human being, [you] entered this particular market, which is a market for health care.” Being born, as the trigger for power under the Commerce Clause, seems a bit of a stretch even for a liberal constitutionalist.

In any event, today’s WSJ letter, dismissing the challenge to ObamaCare as “sophistry,” is another example (to use John Podhoretz’s words) of “the unerring liberal inability” to credit the arguments of opponents – and another pre-emptive libel of a Court that may be about to moor Congress’s power to the text.

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Will the Media Be More Fair in ’12 Election?

The White House is still feeling heat from President Obama’s comments suggesting it would be “unprecedented” for the Supreme Court to overturn a law passed by Congress. And much of it has to do with the fact that the media is actually doing its job and calling the president out on his falsehoods:

During robust questioning when [White House Press Secretary Jay] Carney was told at one point that he had mischaracterized what the president had said, the press secretary was forced to repeatedly defend the remarks of his boss as an observation of fact.

“Since the 1930s the Supreme Court has without exception deferred to Congress when it comes to Congress’s authority to pass legislation to regulate matters of national economic importance such as health care, 80 years,” Carney said.

“He did not mean and did not suggest that … it would be unprecedented for the court to rule that a law was unconstitutional. That’s what the Supreme Court is there to do,” Carney said.

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The White House is still feeling heat from President Obama’s comments suggesting it would be “unprecedented” for the Supreme Court to overturn a law passed by Congress. And much of it has to do with the fact that the media is actually doing its job and calling the president out on his falsehoods:

During robust questioning when [White House Press Secretary Jay] Carney was told at one point that he had mischaracterized what the president had said, the press secretary was forced to repeatedly defend the remarks of his boss as an observation of fact.

“Since the 1930s the Supreme Court has without exception deferred to Congress when it comes to Congress’s authority to pass legislation to regulate matters of national economic importance such as health care, 80 years,” Carney said.

“He did not mean and did not suggest that … it would be unprecedented for the court to rule that a law was unconstitutional. That’s what the Supreme Court is there to do,” Carney said.

Take a look at the video to see Carney try to spin the president’s comments as the “reverse of intimidation.” Politifact also checked into Obama’s assertions, and rated them false in a scathing review:

There’s simply no support for the assertion that the law was passed by a “strong majority.” It was passed along party lines in a sharply partisan climate, and the 60 votes in the Senate were the minimum needed to keep Republicans from bottling it up in a filibuster.

But the “unprecedented” idea is more nuanced. It’s without question that the Supreme Court overturning a law passed by Congress — by any margin — is a common and routine occurrence, and by no means without precedent. Volokh gave us a close analogy with the case of Boerne v. Flores, a religious freedom law that glided through Congress but was held unconstitutional by a majority of the court, including two of its liberal justices. …

But we’re taking Obama literally, and that historical perspective was not reflected in his original statement, which is what we’re ruling on. He simply said the law passed with a strong majority and overturning it would be unprecedented. Wrong and wrong. We rate the statement False.

Many have questioned why Obama, a supposed constitutional law scholar, would make comments so obviously inaccurate. I doubt it’s out of ignorance. As a former student of Obama’s pointed out, he didn’t seem concerned about the courts overturning “duly constituted and passed laws” when he was teaching at Chicago.

The reason Obama made these comments might be simpler. He thought he could get away with them. In the past, the media simply hasn’t called him out on the inaccuracies and distortions in his speeches. That changed this week, and may be a sign this presidential election may at least have fairer news coverage than the last.

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Another Liberal Libel of the Court

John wrote yesterday in the New York Post about the “unerring liberal inability to accept the substance and merit of opposing arguments,” a phenomenon that has produced preemptive attacks on the integrity of the Supreme Court after the ObamaCare oral argument.

The distinguished law professor, Ronald Dworkin, is the latest liberal to libel the Court. At the New York Review of Books blog, he asserts the legal issues in ObamaCare “are not really controversial;” that “basic constitutional principle” and Court precedents “obviously” support it; that conservative justices are ignoring “text, precedent and principle;” and that the distinction between regulating commerce and making everyone buy a product is “pointless.” Perhaps he missed the point in the colloquy between Justice Breyer and Michael Carvin; or skipped the Eleventh Circuit’s 207-page opinion (jointly written by Democratic and Republican appointees); or perhaps he lacks the ability to accept the substance and merit of opposing arguments.

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John wrote yesterday in the New York Post about the “unerring liberal inability to accept the substance and merit of opposing arguments,” a phenomenon that has produced preemptive attacks on the integrity of the Supreme Court after the ObamaCare oral argument.

The distinguished law professor, Ronald Dworkin, is the latest liberal to libel the Court. At the New York Review of Books blog, he asserts the legal issues in ObamaCare “are not really controversial;” that “basic constitutional principle” and Court precedents “obviously” support it; that conservative justices are ignoring “text, precedent and principle;” and that the distinction between regulating commerce and making everyone buy a product is “pointless.” Perhaps he missed the point in the colloquy between Justice Breyer and Michael Carvin; or skipped the Eleventh Circuit’s 207-page opinion (jointly written by Democratic and Republican appointees); or perhaps he lacks the ability to accept the substance and merit of opposing arguments.

His post is not even internally consistent. He asserts conservative justices are relying on “the strict and arbitrary language of an antique Constitution,” which seems to cut against his argument that they are preparing to rule “in spite of text.” His real problem is the text itself, not justices who think they must stay within it. Stripped of his tendentious adjectives (“strict,” “arbitrary,” “antique”), Prof. Dworkin is criticizing judicial reliance on the “language of [the] Constitution.”

That reliance was inherent in Justice Kennedy’s first question to the Solicitor General: “Can you create commerce in order to regulate it?” The answer is not obvious, nor non-controversial, nor addressed by any prior Court precedent.

Which suggests that the place to start the analysis is the text of the constitutional provision. In A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law (Princeton University Press: 1998), Justice Scalia writes:

If you … read a brief filed in a constitutional law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. The starting point of the analysis will be Supreme Court cases, and the new issue will presumptively be decided according to the logic that those cases expressed, with no regard for how far that logic, thus extended, has distanced us from the original text and understanding.

In the case of Obamacare, the prior precedents do not “obviously” support the law, which accounts for the fact that the plaintiffs are not asking the Court to overrule any prior case. The argument instead is that the Commerce Clause, by its terms, gives Congress the power to regulate commerce, but not to force every individual into it — to regulate those engaged in commerce, not to require every person to buy whatever Congress wants them to buy. Prior case law allows Congress to regulate farmers engaged in producing wheat, not to require every person in the country to buy Wheaties.

The Court can decide this case either way precisely because the issue has not previously been addressed. But the text and original understanding of the Commerce Clause suggest the answer to Justice Kennedy’s question is “no,” and Dworkin’s citation of “basic constitutional principle” (he neither cites nor discusses any actual Court precedents) suggest he is appealing to some uber-concept outside the text of the law.

Perhaps he shares the view that Senator Barack Obama expressed at the time of Justice Roberts’ confirmation hearing: that in important cases justices should rely not on the language of the law, but on what is in their wise hearts. We can see the problem with this approach in Prof. Dworkin’s post, which impugns the integrity of the justices who might disagree with his heartfelt position. Rather than demonstrate that the problem is the Court (it is not), he has provided an extraordinary example of the trait John noted.

 

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The Week Obama Jumped the Shark

In a press conference on Monday, President Obama said, “I’d just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. And I’m pretty confident that this court will recognize that and not take that step.” Obama went on to say that the court would take an “unprecedented, extraordinary step” if it overturns the law because it was passed by “a strong majority of a democratically elected Congress.”

Set aside the fact that the House, despite a huge Democratic majority, passed the Patient Protection and Affordable Care Act by a margin of 219-212, hardly a “strong majority.” In fact, it barely qualifies as a plurality. Let’s turn instead to the substance of what the president said.

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In a press conference on Monday, President Obama said, “I’d just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. And I’m pretty confident that this court will recognize that and not take that step.” Obama went on to say that the court would take an “unprecedented, extraordinary step” if it overturns the law because it was passed by “a strong majority of a democratically elected Congress.”

Set aside the fact that the House, despite a huge Democratic majority, passed the Patient Protection and Affordable Care Act by a margin of 219-212, hardly a “strong majority.” In fact, it barely qualifies as a plurality. Let’s turn instead to the substance of what the president said.

Obama, a former community organizer who is perhaps unaware of the finer points of the law, might want to acquaint himself with an obscure  19th century case, Marbury v. Madison, which established the doctrine of judicial review and grants federal courts the power to void acts of Congress that are in conflict with the Constitution. What Obama describes as “unprecedented” has, in fact, been done countless times since 1803.

Then there’s Obama’s confusion about judicial activism. It is not, as he insists, simply the act of overturning an existing law; it is when judges allow their personal views about public policy, and not the Constitution, to guide their decisions and often invent new rights out of thin air. For Justices to invalidate a law they deem to be unconstitutional is precisely what the Supreme Court is supposed to do. (“No legislative act … contrary to the Constitution, can be valid,” is how Alexander Hamilton put it in Federalist #78.) If one takes Obama’s words literally, he believes an unjust and unconstitutional law, if passed by a strong majority of a democratically elected Congress, cannot be overturned.

What the president said, then, was so ill-informed, so ignorant, that people assumed he must know better. There’s no way we can know. But whatever the case, this has been quite a bad stretch for the president. His comments about the Supreme Court, when combined with his astonishingly dishonest attack on the House GOP budget (see here for more), portray a president who is living in a fantasy world — a place where facts and history are inverted, lies become truth, where everything is subordinated to ambition and you simply make things up as you go along. Nietzsche referred to this mindset as the “will to power.” In American politics it’s known as The Chicago Way.

I don’t know what the political effect of all this will be. But intellectually, this is the week where Barack Obama jumped the shark. In a deep, fundamental way, he is no longer a serious man. Nor an honest one. His public words are now purposefully bleached of truth. And that is a painful thing to have to say about an American president.

 

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Liberals, the Supreme Court, and “Speaking Conservative”

In the New York Post today, I diagnose the shock at the powerful Constitutional arguments advanced against Obama’s health-care plan as another example of the self-defeating parochialism of American liberals, who are continually surprised that conservative ideas and conservative arguments are formidable and can only be bested if they are taken seriously: “the strength of the conservative arguments only came as a surprise to [Jeffrey] Toobin, [Linda] Greenhouse and others because they evidently spent two years putting their fingers in their ears and singing, ‘La la la, I’m not listening’ whenever the conservative argument was being advanced.” (There is nothing new under the son, as the “fingers in their ears” analogy was, it turns out, rather more wittily deployed by James Taranto in February 2011 in a column called “Law Law Law.”)

Indeed, yesterday, as I was writing my column, liberal New York Times columnist Gail Collins literally wrote these words: “How can this law not be constitutional?…Really, I have my hands over my ears. Not listening.”

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In the New York Post today, I diagnose the shock at the powerful Constitutional arguments advanced against Obama’s health-care plan as another example of the self-defeating parochialism of American liberals, who are continually surprised that conservative ideas and conservative arguments are formidable and can only be bested if they are taken seriously: “the strength of the conservative arguments only came as a surprise to [Jeffrey] Toobin, [Linda] Greenhouse and others because they evidently spent two years putting their fingers in their ears and singing, ‘La la la, I’m not listening’ whenever the conservative argument was being advanced.” (There is nothing new under the son, as the “fingers in their ears” analogy was, it turns out, rather more wittily deployed by James Taranto in February 2011 in a column called “Law Law Law.”)

Indeed, yesterday, as I was writing my column, liberal New York Times columnist Gail Collins literally wrote these words: “How can this law not be constitutional?…Really, I have my hands over my ears. Not listening.”

But this gets at a more fundamental point about American discourse. Until very recently, American conservatives were, by necessity, bilingual. To be sure, they were fluent in the language of conservative or classical liberal thought—the language of Burke and Adam Smith, the language of enumerated rights and governmental limits, the distinction between freedom and egalitarianism and between liberty and license.

But they were also entirely conversant with liberal concepts—the centrality of fairness as an organizing principle, the notion that justice (in John Rawls’s understanding) involves redistributing goods to repair the injustices of nature and human nature, the elevation of reason over faith.

That has never been true of American liberals. They know their own language but they don’t know the language of their ideological and partisan opposite numbers, and usually default to a form of prosecutorial analysis or psychoanalytic diagnosis to explain how so many people could come to so wrong a conclusion about things. They ascribe it to naked self-interest (i.e., greed), or irrational hatred and fear (i.e., ignorance), or mere stupidity.

So conservatives speak liberal, but for liberals in the United States, conservatism might as well be Esperanto.

This is less and less true in a way that is both fair (in the liberal sense) and relativistic (in the conservative sense). It is possible, now, for a young conservative to be born and raised and come to adulthood in a world in which liberal ideas are seen entirely through a conservative prism—through Fox News and Rush Limbaugh and conservative talk radio and homeschooling. This represents an enormous cultural advance for the Right, in that it is no longer forced to make its way through entirely hostile precincts.

But there is something lost at the same time—the comparative advantage of knowing two languages and using that knowledge to strengthen arguments and blindside the opposition. Paul Clement and Mike Carvin, the two conservative lawyers at the Supreme Court this week, show just what is possible intellectually as a result of this bilingualism. It would be more than a shame if the rise of the conservative bubble proved just as blinding as the liberal bubble has been for the past 40 years.

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The Supreme Court: Conservatism’s Intellectual Crown Jewel

Listening to the oral arguments on the Supreme Court during the last three days is a reminder of why it is, in many respects, the intellectual crown jewel for conservatives, and why it’s vital that those appointed to the high court aren’t simply reliable votes but are capable of making compelling arguments.

To hear Justices Scalia, Alito, Roberts, and even Kennedy slice and dice Solicitor General Donald Verrilli was sheer delight, as they exposed one bad argument and one flawed premise after another. Among other things, they pressed Verrilli on what the limiting principle was under the Commerce Clause. “Can you create commerce in order to regulate it?” Justice Kennedy asked. Justice Alito brought up the market for burial services and asked if the government could mandate funeral insurance (the argument being that because we all die eventually, why shouldn’’t we transfer the costs of our deaths to the rest of society). When Justice Scalia asked Verrilli to defend the individual mandate provision of ObamaCare, he wondered why the federal government couldn’t also make citizens buy vegetables. “Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli,” Scalia asked. Justice Roberts asked if the federal government can make you buy a cell phone.

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Listening to the oral arguments on the Supreme Court during the last three days is a reminder of why it is, in many respects, the intellectual crown jewel for conservatives, and why it’s vital that those appointed to the high court aren’t simply reliable votes but are capable of making compelling arguments.

To hear Justices Scalia, Alito, Roberts, and even Kennedy slice and dice Solicitor General Donald Verrilli was sheer delight, as they exposed one bad argument and one flawed premise after another. Among other things, they pressed Verrilli on what the limiting principle was under the Commerce Clause. “Can you create commerce in order to regulate it?” Justice Kennedy asked. Justice Alito brought up the market for burial services and asked if the government could mandate funeral insurance (the argument being that because we all die eventually, why shouldn’’t we transfer the costs of our deaths to the rest of society). When Justice Scalia asked Verrilli to defend the individual mandate provision of ObamaCare, he wondered why the federal government couldn’t also make citizens buy vegetables. “Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli,” Scalia asked. Justice Roberts asked if the federal government can make you buy a cell phone.

The solicitor general wasn’t able to offer a principled reason why, if the Patient Protection and Affordable Care Act is ruled as constitutional, the federal government won’t have the power to regulate virtually every area of our lives. Perhaps because there is none. The belief of the founders — that the federal government has limited and enumerated powers — would be dealt a crushing blow. That is why this case is so important and has garnered so much intense interest. The stakes could hardly be higher.

I have no idea what the final vote will be and whether or not the Patient Protection and Affordable Care Act will live or die. But the last three days have provided us with a blessed reprieve from the silliness that often characterizes political campaigns. What we’ve been able to witness is a serious, substantive, and at times even an elevated debate about the Constitution, self-government, and American first principles. Conservatives had their most able advocates articulating their case and their cause. It was an intellectual treat. And it was a rout.

 

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A Very Fundamental Change

In oral argument today in the Supreme Court regarding the individual mandate in the Affordable Care Act, Justice Anthony Kennedy–almost certainly the swing vote here–said the following to the Solicitor General (page 30 of the transcript, which, along with the audio, can be found here):

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

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In oral argument today in the Supreme Court regarding the individual mandate in the Affordable Care Act, Justice Anthony Kennedy–almost certainly the swing vote here–said the following to the Solicitor General (page 30 of the transcript, which, along with the audio, can be found here):

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

If Justice Kennedy thinks this law changes the relationship between the federal government and individual citizens in a “very fundamental way,” how can he vote to uphold making that change by mere statute? The fundamental relationship between government and citizen can only be changed by changing the fundamental law that governs that relationship, i.e., the United States Constitution.

 

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