Commentary Magazine


Topic: James Madison

Suing the President

Speaker of the House John Boehner has announced that he will ask the House to sue the president. “My view is the president has not faithfully executed the laws,” he said. “What we have seen clearly over the last five years is an effort to erode the power of the Legislative Branch.”

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Speaker of the House John Boehner has announced that he will ask the House to sue the president. “My view is the president has not faithfully executed the laws,” he said. “What we have seen clearly over the last five years is an effort to erode the power of the Legislative Branch.”

What Boehner is referring to is such presidential actions as unilaterally rewriting large sections of the Affordable Care Act, and ordering the Immigration service to not enforce the portions of immigration law that would have been repealed had Congress passed the “Dream Act,” which it did not. All presidents, other than, perhaps, James Madison, sought to extend their powers, but President Obama has been far more aggressive than most.

But it is difficult to rein in a president through legal action, as no one, including individual members of Congress, has standing to sue to get the courts to require the president to faithfully execute the laws as Congress passed them. As far as I know, neither Congress nor either of its houses has ever sued the president as a body. But that is what Boehner is now proposing. It will be interesting to see how far it gets as the courts have always been notably reluctant to decide a “political question.”

But as George Will writes, “Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance.” Without it, Congress’s only weapon to protect its constitutional powers is the thermonuclear one of impeachment. He writes,

David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:

That a majority of one congressional chamber explicitly authorizes a lawsuit. That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’s power.

But Lyle Denniston of the National Constitution Center has his doubts the courts will get involved:

The courts can be jealous guardians of their notion of what the Constitution allows, or does not allow, in terms of judicial review. The resistance to resolving political disputes is quite deeply set.  One might suggest that it would take an inter-branch controversy of monumental proportions to cause them to give up that reluctance. Is the feud over President Obama’s use of his White House powers of that dimension? That may well be debatable.

This should be interesting.

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“No Mind Has Stamped More of Its Impression On American Institutions”

Lynne Cheney has written a splendid new biography, James Madison: A Life Reconsidered

There are many things one could focus on in a book on Madison, from his personal modesty and his “remarkable sweet temper” (in the words of William Pierce), to his loving marriage to Dolley and his lifelong, intimate friendship with Thomas Jefferson, to his indispensable role in the creation of the Constitution and his wartime leadership as president. Madison was a man of unusual self-possession and a steady temperament, brave in his struggle with seizures (which may have been caused by epilepsy), and fervently committed to religious liberty. 

But there’s one part of Madison’s life I want to concentrate on for the purposes of this post, which has to do with the fight for ratification in Madison’s home state of Virginia, which at the time was the nation’s largest and most important state. Mrs. Cheney sets the scene:

On June 14 [1788], the delegates finally began the point-by-point debate on the Constitution that George Mason had proposed eleven days before. Soon a pattern developed. [Patrick] Henry, George Mason, or James Monroe, who also opposed the Constitution, would claim there were reasons for grave concern in this clause or that one, and Madison would rise to explain briefly and cogently why their worry was unfounded. To Madison it often seemed a Sisyphean effort. He later told Edward Coles, his secretary, that Patrick Henry could undo an hour’s work with a single gesture… He wrote to Hamilton, “My health is not good, and the business is wearisome beyond expression.” … Two days later, Madison wrote to Washington, “I find myself not yet restored and extremely feeble.” He was, nevertheless, putting in a magnificent performance. One observer reported that although “the division” in the Virginia Convention was very close, a narrow win could be expected for the Federalists – “notwithstanding Mr. Henry’s declaratory powers, they being vastly overpowered by the deep reasoning of our glorious little Madison.” One of the delegates, Archibald Stuart, wrote to a friend on June 19, 1788, “Madison came boldly forward and supported the Constitution with the soundest reason and most manly eloquence I ever heart. He understands his subject well and his whole soul is engaged in its success…”

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Lynne Cheney has written a splendid new biography, James Madison: A Life Reconsidered

There are many things one could focus on in a book on Madison, from his personal modesty and his “remarkable sweet temper” (in the words of William Pierce), to his loving marriage to Dolley and his lifelong, intimate friendship with Thomas Jefferson, to his indispensable role in the creation of the Constitution and his wartime leadership as president. Madison was a man of unusual self-possession and a steady temperament, brave in his struggle with seizures (which may have been caused by epilepsy), and fervently committed to religious liberty. 

But there’s one part of Madison’s life I want to concentrate on for the purposes of this post, which has to do with the fight for ratification in Madison’s home state of Virginia, which at the time was the nation’s largest and most important state. Mrs. Cheney sets the scene:

On June 14 [1788], the delegates finally began the point-by-point debate on the Constitution that George Mason had proposed eleven days before. Soon a pattern developed. [Patrick] Henry, George Mason, or James Monroe, who also opposed the Constitution, would claim there were reasons for grave concern in this clause or that one, and Madison would rise to explain briefly and cogently why their worry was unfounded. To Madison it often seemed a Sisyphean effort. He later told Edward Coles, his secretary, that Patrick Henry could undo an hour’s work with a single gesture… He wrote to Hamilton, “My health is not good, and the business is wearisome beyond expression.” … Two days later, Madison wrote to Washington, “I find myself not yet restored and extremely feeble.” He was, nevertheless, putting in a magnificent performance. One observer reported that although “the division” in the Virginia Convention was very close, a narrow win could be expected for the Federalists – “notwithstanding Mr. Henry’s declaratory powers, they being vastly overpowered by the deep reasoning of our glorious little Madison.” One of the delegates, Archibald Stuart, wrote to a friend on June 19, 1788, “Madison came boldly forward and supported the Constitution with the soundest reason and most manly eloquence I ever heart. He understands his subject well and his whole soul is engaged in its success…”

On June 25, 1788 delegates voted 89 to 79 to ratify the Constitution. If Virginia’s vote had gone the other way, Cheney points out, in all likelihood so would New York’s, in which case the whole constitutional enterprise might have come crumbling down. A French diplomat wrote home saying this: “Mr. Madison is the one who, among all the delegates, carried the votes of the two parties. He was always clear, precise, and consistent in his reasoning and always methodical and pure in his language.”

This underscores one of Madison’s most impressive qualities. In an assemblage filled with extraordinary minds, Madison was equal to them all. But he was also the best-prepared person at the Constitutional Convention. Prior to it Jefferson, then in Paris, sent Madison crates of books–more than 200–to study various forms of government. (This led him to author “Of Ancient and Modern Confederacies.”) When Madison submitted his recommendations for the ideal legislator’s library, he cited the works of Locke, Hooker, Plutarch, Hobbes, Hume, Montesquieu, Machiavelli, Plato, and Aristotle, among others. No one studied harder or knew more about the requirements for self-government. 

Several years after the death of the “father of the Constitution,”  the lawyer and politician Charles Jared Ingersoll would say, “no mind has stamped more of its impressions on American institutions than Madison’s.” 

Different people will argue over who was the greatest founder. Some would argue that George Washington was America’s “indispensable man.” Others would point to the brilliant mind and beautiful pen of Thomas Jefferson. But on careful reflection, taking all things into account, it would be difficult to place anyone above the remarkable man from Montpelier.

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Bad History: Vox and Alexander Hamilton

Earlier today I wrote about Ezra Klein’s lame defense of the Obama presidency in which he mistakenly asserts that the office is inherently weak. Blaming the Founding Fathers for the president’s incompetence is easier than owning up to the collapse of faith in the crusade for hope and change. Rather than taking a hard look at the president’s own lack of basic political and leadership skills, Klein claims Obama is in a no-win position, an assertion that can only be accepted if you ignore the vast expansion of presidential power in the last century.

But there is one more point about Klein’s essay that bears refutation. He concludes it by taking a swipe at the doctrine of original intent when it comes to interpreting the Constitution. He writes:

That said, the Founding Fathers have been dead for some time, and even when they were alive they disagreed about quite a lot. Anyone who confidently claims they know how the Founding Fathers would feel about today’s political problems is a liar. It’s likely that Alexander Hamilton would have some questions about airplanes and African-American presidents before he’d render an opinion on congressional productivity.

It is true that there is a lot that the authors of the Constitution would find that was difficult to understand about the America of 2014. But the point of that document was to create a structure for governance. It is a work of sheer genius and has, despite its critics on the left, stood up very well to the test of time. While original intent can sometimes be a dodgy exercise that both left and right play at when it suits them, if you want to know the mindset of the Founders one can easily do so by reading either The Federalist Papers (which were written principally by James Madison and Alexander Hamilton) or Madison’s Notes on the Federal Convention.

But leaving that debate aside, Klein’s potshot at Hamilton tells us more about his own intellectual pretensions than the shortcomings of the man who was killed by Aaron Burr. In fact, if any of the founding fathers would have been at home in 21st century America it was Hamilton. He may not have known much about manned flight, but, in contrast to Madison, Jefferson, and most of the rest of his contemporaries who embraced foolish notions about the United States being principally a nation of yeoman farmers, he envisaged the emergence of America as an industrial and commercial giant as well as global power. As many scholars have pointed out, though we venerate Jefferson and to a lesser extent Madison as the men who made our country, it is Hamilton’s America we live in, not theirs.

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Earlier today I wrote about Ezra Klein’s lame defense of the Obama presidency in which he mistakenly asserts that the office is inherently weak. Blaming the Founding Fathers for the president’s incompetence is easier than owning up to the collapse of faith in the crusade for hope and change. Rather than taking a hard look at the president’s own lack of basic political and leadership skills, Klein claims Obama is in a no-win position, an assertion that can only be accepted if you ignore the vast expansion of presidential power in the last century.

But there is one more point about Klein’s essay that bears refutation. He concludes it by taking a swipe at the doctrine of original intent when it comes to interpreting the Constitution. He writes:

That said, the Founding Fathers have been dead for some time, and even when they were alive they disagreed about quite a lot. Anyone who confidently claims they know how the Founding Fathers would feel about today’s political problems is a liar. It’s likely that Alexander Hamilton would have some questions about airplanes and African-American presidents before he’d render an opinion on congressional productivity.

It is true that there is a lot that the authors of the Constitution would find that was difficult to understand about the America of 2014. But the point of that document was to create a structure for governance. It is a work of sheer genius and has, despite its critics on the left, stood up very well to the test of time. While original intent can sometimes be a dodgy exercise that both left and right play at when it suits them, if you want to know the mindset of the Founders one can easily do so by reading either The Federalist Papers (which were written principally by James Madison and Alexander Hamilton) or Madison’s Notes on the Federal Convention.

But leaving that debate aside, Klein’s potshot at Hamilton tells us more about his own intellectual pretensions than the shortcomings of the man who was killed by Aaron Burr. In fact, if any of the founding fathers would have been at home in 21st century America it was Hamilton. He may not have known much about manned flight, but, in contrast to Madison, Jefferson, and most of the rest of his contemporaries who embraced foolish notions about the United States being principally a nation of yeoman farmers, he envisaged the emergence of America as an industrial and commercial giant as well as global power. As many scholars have pointed out, though we venerate Jefferson and to a lesser extent Madison as the men who made our country, it is Hamilton’s America we live in, not theirs.

Hamilton might be surprised at the election of an incompetent like Barack Obama but I doubt he would be shocked at the evolution of our society on race over the course of the centuries to come. He was a virulent opponent of slavery (he was president of one of the country’s earliest anti-slavery societies) and thought the faculties of blacks were as good as those of whites, something that is hardly surprising since he grew up in a biracial environment in the West Indies.

The point here isn’t just that Klein is being unfair to Hamilton. The first treasury secretary needs no defense against jibes from the likes of the founder of Vox. But it says something that a liberal website that poses as the smart citizens guide to politics and culture would be so illiterate when it comes to one of the chief architects of our nation.

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Jefferson’s Lesson for Conservatives

Yesterday, timed almost perfectly with the unlawful extension of the ObamaCare employer-mandate delay, President Obama was touring Monticello with the visiting French president when he joked about breaking protocol there. “That’s the good thing as a President, I can do whatever I want,” he said according to the pool report. I’m never sure anymore if this sort of thing is really a gaffe, or if the president is just trolling conservatives. Either way, it got the requisite attention.

One of the comments was to note the irony of Obama making such imperious boasts at the home of a president who feared just such a display of lawless executive whim. At Hot Air, Ed Morrissey, for example, said: “That’s precisely the opposite of the example set by Jefferson, at least in terms of the presidency. Too bad Obama hasn’t learned that lesson yet.” And of course I agree … mostly. The truth is, Jefferson actually has something in common with Obama in this regard. Both found their presidencies weighed down by public disapproval. But Jefferson, of course, respected it–and in the end, like many things Jefferson set his mind to, took it a bit overboard.

But first he flexed more executive power than he’s remembered for. In 1807, when American ships were being abused on the open seas, Jefferson believed he had two options: go to war, or keep the traders in harbor. He opted for the second. His proposed trade embargo was an astoundingly bad idea, though it received congressional approval. But Jefferson was showing signs that his everyday personality was ill-suited to the presidency. Richard Brookhiser notes that:

There was a too-good-for-this-world streak in Jefferson’s character that showed itself in many ways, from his mountaintop house, to his dislike of face-to-face argument, to his pride, which also found expression in the embargo.

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Yesterday, timed almost perfectly with the unlawful extension of the ObamaCare employer-mandate delay, President Obama was touring Monticello with the visiting French president when he joked about breaking protocol there. “That’s the good thing as a President, I can do whatever I want,” he said according to the pool report. I’m never sure anymore if this sort of thing is really a gaffe, or if the president is just trolling conservatives. Either way, it got the requisite attention.

One of the comments was to note the irony of Obama making such imperious boasts at the home of a president who feared just such a display of lawless executive whim. At Hot Air, Ed Morrissey, for example, said: “That’s precisely the opposite of the example set by Jefferson, at least in terms of the presidency. Too bad Obama hasn’t learned that lesson yet.” And of course I agree … mostly. The truth is, Jefferson actually has something in common with Obama in this regard. Both found their presidencies weighed down by public disapproval. But Jefferson, of course, respected it–and in the end, like many things Jefferson set his mind to, took it a bit overboard.

But first he flexed more executive power than he’s remembered for. In 1807, when American ships were being abused on the open seas, Jefferson believed he had two options: go to war, or keep the traders in harbor. He opted for the second. His proposed trade embargo was an astoundingly bad idea, though it received congressional approval. But Jefferson was showing signs that his everyday personality was ill-suited to the presidency. Richard Brookhiser notes that:

There was a too-good-for-this-world streak in Jefferson’s character that showed itself in many ways, from his mountaintop house, to his dislike of face-to-face argument, to his pride, which also found expression in the embargo.

Jefferson’s secretary of state, James Madison, had much to do with the embargo policy. Madison thought American exceptionalism (though of course he didn’t use the term) would assert itself, and the American people would win this game of economic chicken. They did not. The two ignored a prescient warning from Treasury Secretary Albert Gallatin that “Governmental prohibitions do always more mischief than had been calculated.” (Gallatin would be better remembered today, perhaps, had the Congress not blocked his nomination to be Madison’s secretary of state later on.)

But even more important, Gallatin cautioned that the difficulty of enforcing the embargo would force Jefferson to make a choice: “Congress must either vest the executive with the most arbitrary powers … or give it up altogether.” Gallatin had correctly predicted the course of the policy. Its failure took a toll on Jefferson. Brookhiser writes: “But the effort tore him up. Was he appalled by the means he had been driven to use? The party of liberty and light government was behaving more odiously than the Federalists had a decade earlier” by restricting free trade where the Federalists restricted free speech.

In any case, it sickened Jefferson, and he quite literally gave up on the presidency. He didn’t leave office–that might have been more of a scandal, but less of a constitutional offense than the course he chose, which was to simply have Madison, his unelected secretary of state, act as de facto president for the remainder of his last year in office. Madison was duly elected in the next election, but Jefferson’s actions risked undermining the system he helped create, and it was an insult to popular democracy.

The comparison between Jefferson and Obama can only be taken so far without becoming ludicrous. When Jefferson “gave up” on the process he bowed out quietly. When Obama did so, he simply discarded the process and did what he wanted. Hence, Obama’s “joke” isn’t really a joke except to the extent to which it’s on us. Nonetheless, there are a couple of lessons. One is that Madison eventually went to war, but did so from a position of greater weakness, lower public morale, and with a less prepared military. An instinct to avoid war is laudable, but in Jefferson and Madison’s case it resulted in rolling back economic freedom and nearly strangling the young nation’s economy. History has vindicated Gallatin, while also cruelly neglecting him.

The other lesson is one about the temptations of power. Jefferson turned out to be quite stubborn; his preferred policy could only be carried out by crossing his own principles, and that’s what he did. This is not to take away from Jefferson’s legacy, but to point out that Jefferson was a critic of John Adams’s crackdown on liberty when he was out of power, and ended up curbing freedom when his turn came.

Conservatives are noting that Obama is setting a disturbing precedent–but it’s one Democrats seemingly approve of. Thus it could be used in any number of ways by the next Republican president. Conservatives should resist the temptation to follow the left’s precedent the next time they have the chance. The extent of Obama’s lawlessness is the exception, and it should remain that way.

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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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“The Best Keepers of the People’s Liberties”

According to a CNS News report, a new ObamaCare regulation will enable members of Congress and their staffs to use federal subsidies to pay for elective abortions. Though it will get less attention than the broken “if you like your plan/doctor, you can keep your plan/doctor” promise, this story arguably is of more significance–if not policywise, than at least symbolically.

This latest report will suffer from a phenomenon I’ve referenced before: the sheer quantity of bad news about ObamaCare means the public can only absorb so much of it at a time. Combine that with the fact that the American public is famously unenthusiastic about prioritizing issues like abortion in the national conversation, and this report is likely to be overlooked. That would be too bad, as CNS explains:

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According to a CNS News report, a new ObamaCare regulation will enable members of Congress and their staffs to use federal subsidies to pay for elective abortions. Though it will get less attention than the broken “if you like your plan/doctor, you can keep your plan/doctor” promise, this story arguably is of more significance–if not policywise, than at least symbolically.

This latest report will suffer from a phenomenon I’ve referenced before: the sheer quantity of bad news about ObamaCare means the public can only absorb so much of it at a time. Combine that with the fact that the American public is famously unenthusiastic about prioritizing issues like abortion in the national conversation, and this report is likely to be overlooked. That would be too bad, as CNS explains:

The federal subsidy members of Congress and their staff can now use to buy health-insurance plans that cover elective abortions contradicts a vow Obama made in a nationally televised speech to a joint session of Congress on Sept. 9, 2009.

It also contradicts the express purpose of the executive order on abortion funding that Obama promised to issue in March 2010 when the House of Representatives was preparing to take its final vote on the Patient Protection and Affordable Care Act.

That executive order promise was part of the compromise that essentially ended Bart Stupak’s time in Congress. The former Democratic congressman was one of the few remaining pro-life Democrats, and he held out on supporting ObamaCare–resistance that had enough support to stall the bill–until he could be assured the new health-care law would not use taxpayer dollars to fund elective abortion.

Stupak’s principled stand was a bluff, however. When Democrats, who largely support abortion-on-demand, along with the intensely pro-abortion Obama, pushed back on amending the bill to protect life, Stupak accepted the promise of an executive order from Obama instead. Few thought Obama would keep his promise, so none of this is terribly surprising, but the pro-abortion regulation would be the undoing of the one promise that, perhaps more than any other, secured the passage of ObamaCare.

Conservatives are at another disadvantage here, however. People are rarely able to muster the outrage for stories about process that they are about policy. But Obama’s behavior on the health law has certainly been outrageous. He has been treating the bill passed by Congress as a rough draft, issuing regulations after the fact that he couldn’t get passed by Congress in an already unpopular law. He understood the will of the people well enough–he just wasn’t particularly bothered by it.

Actually, that’s not quite true. Obama is easily bothered by the will of the people when it contradicts his own vision for society. He has been, on the ObamaCare issue and others, strikingly reminiscent of the unnamed “Anti-republican” in James Madison’s brief satirical dialogue defending popular self-government, Who Are the Best Keepers of the People’s Liberties? The two characters are a bit exaggerated, but the stakes were high enough that he could be forgiven a touch of rhetorical excess. What’s interesting is the extent to which the exaggerated thoughts of the “Anti-republican” seem far less cartoonish when applied to modern Democrats.

The “Anti-republican” claims that “The people are stupid, suspicious, licentious. They cannot safely trust themselves. When they have established government they should think of nothing but obedience, leaving the care of their liberties to their wiser rulers.” His “Republican” interlocutor objects that suppressing people’s freedom to save them from themselves only makes them more likely to be taken advantage of without recourse. They should respect and obey their government, but also “watch over it.”

“Anti-republican” responds:

You look at the surface only, where errors float, instead of fathoming the depths where truth lies hid. It is not the government that is disposed to fly off from the people; but the people that are ever ready to fly off from the government. Rather say then, enlighten the government, warn it to be vigilant, enrich it with influence, arm it with force, and to the people never pronounce but two words — Submission and Confidence.

“Republican” responds that this is a “perversion of the natural order of things” by making “power the primary and central object of the social system, and Liberty but its satellite.” The “Anti-republican,” in full statist/technocratic mode, objects that the “Republican” just isn’t getting it:

The science of the stars can never instruct you in the mysteries of government. Wonderful as it may seem, the more you increase the attractive force of power, the more you enlarge the sphere of liberty; the more you make government independent and hostile towards the people, the better security you provide for their rights and interests.

“Republican” pleads for humility:

Mysterious indeed! But mysteries belong to religion, not to government; to the ways of the Almighty, not to the works of man. And in religion itself there is nothing mysterious to its author; the mystery lies in the dimness of the human sight. So in the institutions of man let there be no mystery, unless for those inferior beings endowed with a ray perhaps of the twilight vouchsafed to the first order of terrestrial creation.

Of course, all this is a bit more imaginative and erudite and even captivating in its own way compared to the discourse we have today, but the outlines and the principles are there. The story of the enlightened technocrat who knows better than the ragged masses and just wants you to trust him is an old story made new. Madison even somehow anticipates engines of outcast utilized by the left to squash debate–a sort of primitive Attack Watch. “Republican” gets the better of the exchange and ends with a libertarian flourish worth savoring, and keeping in mind:

Anti-republican. — You are destitute, I perceive, of every quality of a good citizen, or rather of a good subject. You have neither the light of faith nor the spirit of obedience. I denounce you to the government as an accomplice of atheism and anarchy.

Republican. — And I forbear to denounce you to the people, though a blasphemer of their rights and an idolater of tyranny. Liberty disdains to persecute.

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Why Virginia Matters (Besides the Obvious)

Republicans looking for a silver lining in last week’s Virginia elections got some bad news today: it looks like the Democratic candidate for attorney general, Mark Herring, will eke out a victory by less than 200 votes, enabling the Democrats to sweep Election Day’s major contests in that state. The current margin of victory allows the Republican candidate, Mark Obenshain, to request a recount, which the state will pay for since the margin is less than one half of one percent, according to Time.

Though obviously not as significant as the governor’s race, the attorney general gets a head start on running for governor, since Virginia governors are limited to one term. This is especially true for an attorney general when his party does not also hold the governorship of the state, since it gives him an advantage in wrangling for the party’s gubernatorial nomination in the following election. The office can also offer an attorney general a way to gain national name recognition and experience, as Ken Cuccinelli did with his role in the states’ legal charge against ObamaCare.

So it would have been a consolation prize worth having for Republicans in Virginia. Additionally, the GOP is confronting what Reid Wilson calls a “changed electorate” that enabled Terry McAuliffe to win. McAuliffe can only serve one term, so Virginians just have to make sure he doesn’t do anything crazy in that time, like sell the state at a “Clinton 2016” fundraiser or some such. But after McAuliffe leaves office, Republicans will still have to face this “changed electorate,” and do so with the momentum pulling the state into the Democrats’ column. And that changed electorate is in part about turnout–an area the Democrats excelled in during President Obama’s reelection and which the Romney campaign flubbed badly. Wilson explains:

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Republicans looking for a silver lining in last week’s Virginia elections got some bad news today: it looks like the Democratic candidate for attorney general, Mark Herring, will eke out a victory by less than 200 votes, enabling the Democrats to sweep Election Day’s major contests in that state. The current margin of victory allows the Republican candidate, Mark Obenshain, to request a recount, which the state will pay for since the margin is less than one half of one percent, according to Time.

Though obviously not as significant as the governor’s race, the attorney general gets a head start on running for governor, since Virginia governors are limited to one term. This is especially true for an attorney general when his party does not also hold the governorship of the state, since it gives him an advantage in wrangling for the party’s gubernatorial nomination in the following election. The office can also offer an attorney general a way to gain national name recognition and experience, as Ken Cuccinelli did with his role in the states’ legal charge against ObamaCare.

So it would have been a consolation prize worth having for Republicans in Virginia. Additionally, the GOP is confronting what Reid Wilson calls a “changed electorate” that enabled Terry McAuliffe to win. McAuliffe can only serve one term, so Virginians just have to make sure he doesn’t do anything crazy in that time, like sell the state at a “Clinton 2016” fundraiser or some such. But after McAuliffe leaves office, Republicans will still have to face this “changed electorate,” and do so with the momentum pulling the state into the Democrats’ column. And that changed electorate is in part about turnout–an area the Democrats excelled in during President Obama’s reelection and which the Romney campaign flubbed badly. Wilson explains:

The McAuliffe campaign had to invest heavily in digital media, Mook said, because many of the voters most likely to back the Democrat were part of groups that vote at lower rates — particularly younger voters and minorities. …

The gamble on turning out McAuliffe-friendly voters paid off: Exit polls showed the 2013 electorate was 72 percent white and 20 percent African American. Those two groups made up 78 percent and 16 percent, respectively, in 2009. Cuccinelli won white voters by a 56 percent to 36 percent margin, while McAuliffe won among blacks with 90 percent of the vote.

Younger voters, between the ages of 18 and 29, made up 13 percent of the electorate, three points higher than in 2009. Those voters gave McAuliffe a 45 percent to 40 percent edge; in 2009, younger voters chose Republican McDonnell by a 10-point margin.

So Virginia matters for all the obvious reasons: it used to be a red state; it may be a leading indicator of Republican struggles in swing states; it’s evidence the Democrats still have a superior ground game; etc. But it also matters for another reason, one that is both quantifiable and symbolic: the northern Virginia suburbs.

First, the quantifiable: as the Washington Post reports, population increases in the northern Virginia, blue-leaning counties hurt the Cuccinelli campaign in ways that portend trouble ahead for the Republicans. In three of those counties, for example, the Post explains that McAuliffe either matched, slightly exceeded, or slightly underperformed the voting percentages accrued there by Tim Kaine, the last Democrat to win the governorship eight years ago. Yet basically matching Kaine’s percentages in Fairfax, Prince William, and Loudoun counties still gave McAuliffe an extra 6,400, 7,000, and 300 or so votes respectively.

Northern Virginia is home to a sizable population of federal workers and where, according to the Hill, nearly one-third of the economy depends on the federal government. According to some estimates, there are 65,000 federal employees living in northern Virginia and 110,000 federal workers who work there. So the politics of Virginia are clearly influenced by the growth of government and people dependent on it.

And that gets to the symbolic aspect of this. The trend is understandable, but it is also an inversion of the benefits of the famous deal Thomas Jefferson and James Madison struck with Alexander Hamilton to locate the capital on the Potomac in return for the federal assumption of state debts (and a favorable accounting of such as far as Virginia was concerned). Their intentions, of course, are difficult to know. But the practical effect of locating the capital on the Potomac was to inaugurate a capital that was modest and humble, not imposing and imperialistic. As Joseph J. Ellis writes in Founding Brothers, in its early years it would easily assuage anyone’s concern about the powers of the new federal government: “It symbolized the victory of diffusion over consolidation.”

Skeptics of the federal government and the Hamilton deal wanted Madison and Jefferson to oppose it on the grounds that the debt assumption was akin to conquest by a foreign power–this new federal Leviathan, from which the states could be forgiven for contemplating secession. Ellis continues:

Jefferson and Madison claimed to share their apprehensions and their political principles, but not their secessionist impulses. Their strategy was different. They would not abandon the government, but capture it. Like the new capital, it would become an extension of Virginia, or at least the Virginia vision of what the American Revolution meant and the American republic was therefore meant to be.

The trend that carried McAuliffe to victory, and threatens to concretize in Virginia, is the opposite effect. It is the looming capture of Virginia by the federal government and the capital, and making Virginia an extension of the vision of the American republic according to the federal bureaucrat. Jefferson soon regretted the deal and his role in it, and nothing since then would likely change his mind.

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Madison’s Moment

He may not have a grand monument like Thomas Jefferson; the pop culture revival of John Adams; a name synonymous with courage and heroism like George Washington; or the institutional legacy of Alexander Hamilton. But James Madison has still managed to work his way back into the daily experience of Washington D.C.’s political conversation. Madison–constitutional framer, secretary of state, president–is being invoked furiously by both Republicans and Democrats because of his consistent advocacy for the separation of powers that produces compromise and gridlock by design.

Unfortunately for Madison (though he might not find it unfortunate at all), he is being invoked for his culpability in the recent government shutdown. From the Washington Post to National Review to the Washington Examiner to even the Daily Show with Jon Stewart, there is striking agreement that if you’re looking for someone to blame for the recent polarization in Washington, the culprit of choice is Madison.

That’s the good news–sort of–because whether or not you think Madison should be praised for his conception of the separation of powers (and he most certainly should), it is at least accurate to credit him with being a driving force behind the system. The bad news is that some of those who come to praise Madison do so based on a misreading of history that Madison would scarcely recognize. There has been much hyperbole aimed at conservatives from liberals who believe that the government shutdown was unprecedented–this view, keep in mind, relies on the idea that the history of the world began with Barack Obama’s election in 2008–and as such was the manifestation of a malevolent world view on the part of Republicans in Congress. Here is the opening paragraph from John Judis’s cover story in the New Republic:

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He may not have a grand monument like Thomas Jefferson; the pop culture revival of John Adams; a name synonymous with courage and heroism like George Washington; or the institutional legacy of Alexander Hamilton. But James Madison has still managed to work his way back into the daily experience of Washington D.C.’s political conversation. Madison–constitutional framer, secretary of state, president–is being invoked furiously by both Republicans and Democrats because of his consistent advocacy for the separation of powers that produces compromise and gridlock by design.

Unfortunately for Madison (though he might not find it unfortunate at all), he is being invoked for his culpability in the recent government shutdown. From the Washington Post to National Review to the Washington Examiner to even the Daily Show with Jon Stewart, there is striking agreement that if you’re looking for someone to blame for the recent polarization in Washington, the culprit of choice is Madison.

That’s the good news–sort of–because whether or not you think Madison should be praised for his conception of the separation of powers (and he most certainly should), it is at least accurate to credit him with being a driving force behind the system. The bad news is that some of those who come to praise Madison do so based on a misreading of history that Madison would scarcely recognize. There has been much hyperbole aimed at conservatives from liberals who believe that the government shutdown was unprecedented–this view, keep in mind, relies on the idea that the history of the world began with Barack Obama’s election in 2008–and as such was the manifestation of a malevolent world view on the part of Republicans in Congress. Here is the opening paragraph from John Judis’s cover story in the New Republic:

In the Federalist Papers, James Madison promised that a large republic with a representative government would avoid the “instability, injustice and confusion” that had plagued many nations in Europe. In a representative government, he reasoned, disruptive factions would be unable to gain sufficient power to dissolve the social contract. The people’s representatives would not necessarily be paragons of virtue, but they would be less likely to succumb to “local prejudices and schemes of injustice.” In the 225 intervening years, Madison has been proven correct, with two great exceptions. One was the Civil War. The other was the 16-day government shutdown of October 2013.

Madison would, of course, be appalled. He was, after all, president during the War of 1812. That war would split the nation so profoundly as to be dubbed, variously, a civil war all its own and a second war of independence. And as for succumbing to “local prejudices and schemes of injustice,” the war’s political polarization would crest with the Hartford Convention of 1814 at which Federalists from New England would either threaten secession openly or implicitly. They had already, as Richard Brookhiser notes, been “smuggling supplies to the British army in Canada.” Shy of secession, they made noises about striking a separate peace with the British.

The “or else” tacked on to these threats was a list of constitutional amendments the conventioneers wanted adopted, among them restrictions on presidential eligibility aimed specifically at curbing the electoral success of the sons of Virginia. For those who think Republicans engineered the 2013 shutdown because they could not win elections fair and square and therefore contrived to take the country “hostage,” one wonders what they would make of such personalities as Gouverneur Morris (“Unquestionably it is civil war. And what of it?”) and Timothy Pickering.

But of course Madison was far from blameless. One clever flourish of the conventioneers was in writing that “in cases of deliberate, dangerous and palpable infractions of the constitution” it is appropriate for “a state to interpose its authority” with the federal government. This language echoed nearly word for word a section of the Virginia Resolution of 1798, which was written by Madison himself. (Madison’s authorship was not yet publicly revealed, but as it was promulgated by his party in his home state, his affiliation with and approval of its ideas were widely assumed.)

The Virginia Resolution, in turn, along with Jefferson’s Kentucky Resolution, was a protest against the Alien and Sedition Acts which were put in place by the Federalists and used by President John Adams (and an enabling Supreme Court) to silence domestic criticism and stack the deck electorally against the Republicans. Madison talked Jefferson out of pushing secession in response to the Acts, but he would no doubt scoff at the idea that the government shutdown of 2013 was an unprecedented manifestation (aside from the Civil War) of partisan polarization, disrupting a history of harmony that he would not recognize.

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Obama’s Absurd Claim About Judaism

Apparently, Barack Obama told a visiting contingent of Conservative Jewish rabbis that he probably knows more about Judaism than any other president—on the same day that he referred to “Polish death camps.” For that last remark he apologized, but the one about Judaism is far more telling. In the first place, the claim is transparently absurd. We can quickly pass over the fact that John Adams and James Madison, among the most educated men in the world at the time, knew Hebrew as well as Latin and Greek and just say that the president is, to put it mildly, punching above his weight here. So let’s move on to the fact that every president until the modern era knew more about Judaism than Barack Obama because the Bible was the one book every literate person knew, and the Bible includes the books Christians call the “Old Testament,” and a working knowledge of the Old Testament certainly is the best introduction to “Judaism” there is.

Earlier presidents did not learn the Talmud, of course, but if Barack Obama ever has, that would come as news to me. There is no indication from Obama’s own writing that he is especially Bible-literate, and we can presume that his notorious pastor of 20 years used the Bible primarily as flavoring for his political duck soup. I have no doubt that, among presidents closer to our time, Jimmy Carter was far more conversant in the lore of Biblical Judaism, for all the good it did his corrupted soul when it comes to the Jewish state.

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Apparently, Barack Obama told a visiting contingent of Conservative Jewish rabbis that he probably knows more about Judaism than any other president—on the same day that he referred to “Polish death camps.” For that last remark he apologized, but the one about Judaism is far more telling. In the first place, the claim is transparently absurd. We can quickly pass over the fact that John Adams and James Madison, among the most educated men in the world at the time, knew Hebrew as well as Latin and Greek and just say that the president is, to put it mildly, punching above his weight here. So let’s move on to the fact that every president until the modern era knew more about Judaism than Barack Obama because the Bible was the one book every literate person knew, and the Bible includes the books Christians call the “Old Testament,” and a working knowledge of the Old Testament certainly is the best introduction to “Judaism” there is.

Earlier presidents did not learn the Talmud, of course, but if Barack Obama ever has, that would come as news to me. There is no indication from Obama’s own writing that he is especially Bible-literate, and we can presume that his notorious pastor of 20 years used the Bible primarily as flavoring for his political duck soup. I have no doubt that, among presidents closer to our time, Jimmy Carter was far more conversant in the lore of Biblical Judaism, for all the good it did his corrupted soul when it comes to the Jewish state.

Perhaps what the president meant is that he’s known more Jews than other presidents. This too is an absurdity, as Ronald Reagan spent 30 years in Hollywood and had Jews coming out his ears. In fact, chances are Barack Obama knows less about Judaism than most presidents, except that he knows a lot of liberal Jews.

What the president does, without question, know a great deal about is the act of preening.

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Judge Vinson’s Madisonian Vision vs. ObamaCare

I’ve now read through the 78-page decision by Federal Judge Roger Vinson in which he ruled the individual mandate, which is at the heart of the Patient Protection and Affordable Care Act, to be unconstitutional and not severable, necessitating that the “entire Act must be declared void.”

The decision itself, as Judge Vinson points out, is not really about our health-care system at all. It is principally about our federalist system, he writes, and “it raises very important issues regarding the Constitutional role of the federal government.”

While Vinson’s decision covers a lot of ground — including Medicaid expansion, the Necessary and Proper Clause, and the evolution of Commerce Clause Jurisprudence — the core purpose of the decision is to set some outer limits on federal action. Because of the novel way the Obama administration is justifying the individual mandate, it would be virtually impossible to argue that there is anything that Congress is without power to regulate.

Judge Vinson’s opinion is laced with quotes from Madison, Hamilton, and the Federalist Papers. And because he believes that the individual mandate exceeds Congress’s commerce power, is without logical limitation, and far exceeds the existing legal boundaries established by Supreme Court precedent — because, Vinson argues, it cannot be reconciled with a limited government of enumerated powers and would remove all limits on federal power — he declared the Act unconstitutional.

Judge Vinson was certainly right to do so. And the arguments he employed to strike it down are powerful and perfect for this political moment. We are, after all, engaged in a debate about first principles and the role of the Constitution in our lives. Judge Vinson has affirmed in an elegant opinion the vision of James Madison. We can only hope that the Supreme Court eventually does as well.

I’ve now read through the 78-page decision by Federal Judge Roger Vinson in which he ruled the individual mandate, which is at the heart of the Patient Protection and Affordable Care Act, to be unconstitutional and not severable, necessitating that the “entire Act must be declared void.”

The decision itself, as Judge Vinson points out, is not really about our health-care system at all. It is principally about our federalist system, he writes, and “it raises very important issues regarding the Constitutional role of the federal government.”

While Vinson’s decision covers a lot of ground — including Medicaid expansion, the Necessary and Proper Clause, and the evolution of Commerce Clause Jurisprudence — the core purpose of the decision is to set some outer limits on federal action. Because of the novel way the Obama administration is justifying the individual mandate, it would be virtually impossible to argue that there is anything that Congress is without power to regulate.

Judge Vinson’s opinion is laced with quotes from Madison, Hamilton, and the Federalist Papers. And because he believes that the individual mandate exceeds Congress’s commerce power, is without logical limitation, and far exceeds the existing legal boundaries established by Supreme Court precedent — because, Vinson argues, it cannot be reconciled with a limited government of enumerated powers and would remove all limits on federal power — he declared the Act unconstitutional.

Judge Vinson was certainly right to do so. And the arguments he employed to strike it down are powerful and perfect for this political moment. We are, after all, engaged in a debate about first principles and the role of the Constitution in our lives. Judge Vinson has affirmed in an elegant opinion the vision of James Madison. We can only hope that the Supreme Court eventually does as well.

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Civility as a Political Virtue

The aftermath of President Obama’s meeting yesterday with the GOP leadership sparked a discussion that recurs with some regularity within conservative circles. (President Obama pronounced the meeting “extremely civil,” and Republicans concurred.)

The argument is sometimes made, directly or obliquely, that civility is merely a guise, the first step toward bipartisan compromises that betray conservative principles. And at times there is something to this critique. Civility has been used as a cover for hollowed-out principles, for lukewarm philosophical commitments, and for those who believe in nothing and are willing to fight for nothing. I get all that.

But civility need not be any of this, and it’s important from time to time to remind ourselves why it’s quite important to our political and civic life. It’s therefore worth correcting some interpretations that, like barnacles that attach themselves to the hull of a ship, associate themselves with the concept of civility.

Civility is not a synonym for lack of principles or lack of passion. They are entirely separate categories. Civility has to do with basic good manners and courtesy, the respect we owe others as fellow citizens and fellow human beings. It is both an animating spirit and a mode of discourse. It establishes limits so we don’t treat opponents as enemies. And it helps inoculate us against one of the unrelenting temptations in politics (and in life more broadly), which is to demonize and dehumanize those who hold views different from our own.

We can possess civility while at the same time holding (and championing) deep moral and philosophical commitments. In fact civility, properly understood, advances rigorous arguments, for a simple reason: it forecloses ad hominem attacks, which is the refuge of sloppy, undisciplined minds. “Before impugning an opponent’s motives,” the philosopher Sidney Hook once said, “even when they may rightly be impugned, answer his arguments.”

Here a few caveats are in order. Civility does not preclude spirited debate or confrontation. Clashing arguments are often clarifying arguments. Civility does not mean we do not call things by their rightful name. Evil is sometimes evil; and wicked men are sometimes wicked men. Nor does civility mean splitting the difference on every issue under the sun. (Who was right — eight clergymen in Alabama who said civil rights activism was “unwise and untimely” or the young minister sitting in a Birmingham city jail who told these “white moderates” that they preferred “a negative peace which is the absence of tension to a positive peace with is the presence of justice”?) I would add that the most important debates and many of the most important figures in American history were polarizing. They stirred deep passions in people, which is precisely when civility and even a measure of grace are most needed, to keep democratic discourse from jumping the rails.

In all this, Abraham Lincoln is, as he almost always is, a model. Lincoln is the finest political writer and, with James Madison, the finest political thinker in American history. He set a standard for meticulous, sophisticated arguments that had never been seen and has never been matched. As a young man, it is said, his satirical inclination and self-confident polemical power provided him with the “power to hurt.” But as he matured, William Lee Miller has written, “one can almost observe him curbing that inclination and becoming scrupulous and respectful.” His personal and professional dealings — with clients, editors, supporters, and opponents — had a “distinctive quality of tact, generosity, and civility.”

In response to a visit by citizens after the 1864 election, Lincoln said, “So long as I have been here I have not willingly planted a thorn in any man’s bosom.”

None of us possesses Lincoln’s virtues. But all of us should aspire to cultivate them.

The aftermath of President Obama’s meeting yesterday with the GOP leadership sparked a discussion that recurs with some regularity within conservative circles. (President Obama pronounced the meeting “extremely civil,” and Republicans concurred.)

The argument is sometimes made, directly or obliquely, that civility is merely a guise, the first step toward bipartisan compromises that betray conservative principles. And at times there is something to this critique. Civility has been used as a cover for hollowed-out principles, for lukewarm philosophical commitments, and for those who believe in nothing and are willing to fight for nothing. I get all that.

But civility need not be any of this, and it’s important from time to time to remind ourselves why it’s quite important to our political and civic life. It’s therefore worth correcting some interpretations that, like barnacles that attach themselves to the hull of a ship, associate themselves with the concept of civility.

Civility is not a synonym for lack of principles or lack of passion. They are entirely separate categories. Civility has to do with basic good manners and courtesy, the respect we owe others as fellow citizens and fellow human beings. It is both an animating spirit and a mode of discourse. It establishes limits so we don’t treat opponents as enemies. And it helps inoculate us against one of the unrelenting temptations in politics (and in life more broadly), which is to demonize and dehumanize those who hold views different from our own.

We can possess civility while at the same time holding (and championing) deep moral and philosophical commitments. In fact civility, properly understood, advances rigorous arguments, for a simple reason: it forecloses ad hominem attacks, which is the refuge of sloppy, undisciplined minds. “Before impugning an opponent’s motives,” the philosopher Sidney Hook once said, “even when they may rightly be impugned, answer his arguments.”

Here a few caveats are in order. Civility does not preclude spirited debate or confrontation. Clashing arguments are often clarifying arguments. Civility does not mean we do not call things by their rightful name. Evil is sometimes evil; and wicked men are sometimes wicked men. Nor does civility mean splitting the difference on every issue under the sun. (Who was right — eight clergymen in Alabama who said civil rights activism was “unwise and untimely” or the young minister sitting in a Birmingham city jail who told these “white moderates” that they preferred “a negative peace which is the absence of tension to a positive peace with is the presence of justice”?) I would add that the most important debates and many of the most important figures in American history were polarizing. They stirred deep passions in people, which is precisely when civility and even a measure of grace are most needed, to keep democratic discourse from jumping the rails.

In all this, Abraham Lincoln is, as he almost always is, a model. Lincoln is the finest political writer and, with James Madison, the finest political thinker in American history. He set a standard for meticulous, sophisticated arguments that had never been seen and has never been matched. As a young man, it is said, his satirical inclination and self-confident polemical power provided him with the “power to hurt.” But as he matured, William Lee Miller has written, “one can almost observe him curbing that inclination and becoming scrupulous and respectful.” His personal and professional dealings — with clients, editors, supporters, and opponents — had a “distinctive quality of tact, generosity, and civility.”

In response to a visit by citizens after the 1864 election, Lincoln said, “So long as I have been here I have not willingly planted a thorn in any man’s bosom.”

None of us possesses Lincoln’s virtues. But all of us should aspire to cultivate them.

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RE: Blaming James Madison

A smart political reporter suggests that David Axelrod’s op-ed in the Washington Post is further evidence of the bizarre and entirely unproductive exercise in blaming the First Amendment for the Democrats’ political collapse. Axelrod whines:

All of Washington is in a frenzy, speculating about the outcome of the fall elections. Yet the development that could most tip the scales is getting far too little public attention. That hidden factor is the audacious stealth campaign being mounted by powerful corporate special interests that are vying to put their Republican allies in control of Congress and turn back common-sense reforms that strengthen America’s middle class.

Good grief — maybe that stuff works in Chicago but does the public at large buy any of that, or even care if a group called Americans for Prosperity is raising money for candidates who are attuned to the populist outcry against runaway spending? It is as though Axelrod thinks he is running a Democratic primary race and not working for President of the United States. This is what a high-ranking government official spends his time doing — grousing that the other side has more money?

But the telling sign is the last paragraph:

Pundits will spend a lot of time predicting who will win in November. But more is at stake than the fate of Democrats or Republicans. What’s at stake is whether the powerful corporate special interests will go back to writing our laws or whether our democracy will remain where it belongs — in the hands of the American people.

No, actually, what is at stake is control of the House and Senate and the complete repudiation of the Obama agenda. No wonder Axelrod wants to change the topic.

A smart political reporter suggests that David Axelrod’s op-ed in the Washington Post is further evidence of the bizarre and entirely unproductive exercise in blaming the First Amendment for the Democrats’ political collapse. Axelrod whines:

All of Washington is in a frenzy, speculating about the outcome of the fall elections. Yet the development that could most tip the scales is getting far too little public attention. That hidden factor is the audacious stealth campaign being mounted by powerful corporate special interests that are vying to put their Republican allies in control of Congress and turn back common-sense reforms that strengthen America’s middle class.

Good grief — maybe that stuff works in Chicago but does the public at large buy any of that, or even care if a group called Americans for Prosperity is raising money for candidates who are attuned to the populist outcry against runaway spending? It is as though Axelrod thinks he is running a Democratic primary race and not working for President of the United States. This is what a high-ranking government official spends his time doing — grousing that the other side has more money?

But the telling sign is the last paragraph:

Pundits will spend a lot of time predicting who will win in November. But more is at stake than the fate of Democrats or Republicans. What’s at stake is whether the powerful corporate special interests will go back to writing our laws or whether our democracy will remain where it belongs — in the hands of the American people.

No, actually, what is at stake is control of the House and Senate and the complete repudiation of the Obama agenda. No wonder Axelrod wants to change the topic.

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Blaming James Madison

Obama has blamed George Bush. He’s blamed the Republican minority. He’s blamed Wall Street. He’s blamed the 24/7 media cycle. Now he’s blaming the First Amendment for the decimation of the Democratic Party on his watch. In a speech in Philadelphia he proclaimed:

[T]he biggest impediment we have right now is that independent expenditures coming from special interests — who we don’t know because they’re not obligated to disclose their contributions under a Supreme Court decision called Citizens United — means that in some places, you’ve got third parties that are spending millions more than the candidates combined, more than the parties in these states.

That’s the biggest problem that we have all across the country right now. We’ve got great candidates who are taking their case directly to the American people, but they are being drowned out by groups like Americans for Prosperity. Nobody knows who they are. Well, we know who they are — but nobody knows where the money is coming from, and they certainly don’t appear on those ads.

Good golly. Is this to be the excuse for the 2010 wipeout — too many Americans exercising First Amendment rights in opposition to a president, a Congress, and an agenda to which they object? On one level, it’s pathetic — another in a long line of excuses that tell us more about Obama’s delusional view of himself than it does about the voters.

But like much of Obama’s rhetoric, it is primarily distinguished by its utter disregard of the facts. Obama’s poll numbers have been tumbling for a year, ObamaCare has never been popular, and the Tea Party movement has organized millions of Americans — yet not one of these issues qualifies as the “biggest problem.” And why is it that Obama and his side are having such fundraising issues (forget for a moment the Big Labor piggybank)? Might it be that his hyper-partisanship and extreme agenda have helped mobilize conservatives to an extent they never imagined in 2008, when Obama was raking in the money?

All the whining about how Democrats “can’t get their message out” or are “being outspent” is the talk of losers. As the GOP learned in their fundraising difficulties in 2008, money follows enthusiasm, excitement, and, yes, anger. Money is the least of the Democrats’ worries, and blaming the First Amendment isn’t going to help matters.

Obama has blamed George Bush. He’s blamed the Republican minority. He’s blamed Wall Street. He’s blamed the 24/7 media cycle. Now he’s blaming the First Amendment for the decimation of the Democratic Party on his watch. In a speech in Philadelphia he proclaimed:

[T]he biggest impediment we have right now is that independent expenditures coming from special interests — who we don’t know because they’re not obligated to disclose their contributions under a Supreme Court decision called Citizens United — means that in some places, you’ve got third parties that are spending millions more than the candidates combined, more than the parties in these states.

That’s the biggest problem that we have all across the country right now. We’ve got great candidates who are taking their case directly to the American people, but they are being drowned out by groups like Americans for Prosperity. Nobody knows who they are. Well, we know who they are — but nobody knows where the money is coming from, and they certainly don’t appear on those ads.

Good golly. Is this to be the excuse for the 2010 wipeout — too many Americans exercising First Amendment rights in opposition to a president, a Congress, and an agenda to which they object? On one level, it’s pathetic — another in a long line of excuses that tell us more about Obama’s delusional view of himself than it does about the voters.

But like much of Obama’s rhetoric, it is primarily distinguished by its utter disregard of the facts. Obama’s poll numbers have been tumbling for a year, ObamaCare has never been popular, and the Tea Party movement has organized millions of Americans — yet not one of these issues qualifies as the “biggest problem.” And why is it that Obama and his side are having such fundraising issues (forget for a moment the Big Labor piggybank)? Might it be that his hyper-partisanship and extreme agenda have helped mobilize conservatives to an extent they never imagined in 2008, when Obama was raking in the money?

All the whining about how Democrats “can’t get their message out” or are “being outspent” is the talk of losers. As the GOP learned in their fundraising difficulties in 2008, money follows enthusiasm, excitement, and, yes, anger. Money is the least of the Democrats’ worries, and blaming the First Amendment isn’t going to help matters.

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Happy Constitution Day

On this day in 1787, delegates to the Federal Convention completed their work (which began in May) and voted to approve a new Constitution, which was submitted to the states for ratification (which occurred on June 21, 1788). Now the oldest written national constitution in the world, the British statesman William Gladstone described it as “the most remarkable work known to me in modern times to have been produced by the human intellect.” It was also on this day that Benjamin Franklin, who by then was in his 80s and seldom participated in the constitutional debates, delivered a wise and moving speech in which he said this:

I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die.

It is hard to overstate the importance of, and the sheer brilliance and prescience of, the American Constitution. It established the world’s first stable democratic government and provided the governing framework for the most powerful and benevolent nation in human history. The product above all of 36-year-old James Madison, an unparalleled master of political and constitutional theory, the Constitution also resulted in the Federalist Papers — 85 essays written between October 1787 and May 1788 by Alexander Hamilton (author of 51 of the essays), Madison (author of 29), and John Jay (author of five) — which explain the whole theory of constitutional government and which helped pave the way for ratification.

George W. Carey and James McClellan, in their fine introduction to The Federalist, write that this collection of essays, hastily written by three politicians in the midst of a political struggle, makes the Federalist Papers “a unique document, unparalleled in the literature of the Western political tradition.”

On this day in 1787, delegates to the Federal Convention completed their work (which began in May) and voted to approve a new Constitution, which was submitted to the states for ratification (which occurred on June 21, 1788). Now the oldest written national constitution in the world, the British statesman William Gladstone described it as “the most remarkable work known to me in modern times to have been produced by the human intellect.” It was also on this day that Benjamin Franklin, who by then was in his 80s and seldom participated in the constitutional debates, delivered a wise and moving speech in which he said this:

I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die.

It is hard to overstate the importance of, and the sheer brilliance and prescience of, the American Constitution. It established the world’s first stable democratic government and provided the governing framework for the most powerful and benevolent nation in human history. The product above all of 36-year-old James Madison, an unparalleled master of political and constitutional theory, the Constitution also resulted in the Federalist Papers — 85 essays written between October 1787 and May 1788 by Alexander Hamilton (author of 51 of the essays), Madison (author of 29), and John Jay (author of five) — which explain the whole theory of constitutional government and which helped pave the way for ratification.

George W. Carey and James McClellan, in their fine introduction to The Federalist, write that this collection of essays, hastily written by three politicians in the midst of a political struggle, makes the Federalist Papers “a unique document, unparalleled in the literature of the Western political tradition.”

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Liberalism’s Existential Crisis

As the Obama presidency and the Democratic Party continue their journey into the Slough of Despond, it’s interesting to watch Obama’ supporters try to process the unfolding events.

Some blame it on a failure to communicate. E.J. Dionne, Jr., for example, ascribes the Democrats’ problems to the fact that Obama “has chosen not to engage the nation in an extended dialogue about what holds all his achievements together.” Joe Klein offers this explanation: “If Obama is not reelected, it will be because he comes across as disdaining what he does for a living.” And John Judis points to the Obama administration’s “aversion to populism.”

Others are aiming their sound and fury at the American people. According to Maureen Dowd, “Obama is the head of the dysfunctional family of America — a rational man running a most irrational nation, a high-minded man in a low-minded age. The country is having some weird mass nervous breakdown.” Jonathan Alter argues that the American people “aren’t rationally aligning belief and action; they’re tempted to lose their spleens in the polling place without fully grasping the consequences.” And Slate‘s Jacob Weisberg has written that “the biggest culprit in our current predicament” is the “childishness, ignorance, and growing incoherence of the public at large.” Read More

As the Obama presidency and the Democratic Party continue their journey into the Slough of Despond, it’s interesting to watch Obama’ supporters try to process the unfolding events.

Some blame it on a failure to communicate. E.J. Dionne, Jr., for example, ascribes the Democrats’ problems to the fact that Obama “has chosen not to engage the nation in an extended dialogue about what holds all his achievements together.” Joe Klein offers this explanation: “If Obama is not reelected, it will be because he comes across as disdaining what he does for a living.” And John Judis points to the Obama administration’s “aversion to populism.”

Others are aiming their sound and fury at the American people. According to Maureen Dowd, “Obama is the head of the dysfunctional family of America — a rational man running a most irrational nation, a high-minded man in a low-minded age. The country is having some weird mass nervous breakdown.” Jonathan Alter argues that the American people “aren’t rationally aligning belief and action; they’re tempted to lose their spleens in the polling place without fully grasping the consequences.” And Slate‘s Jacob Weisberg has written that “the biggest culprit in our current predicament” is the “childishness, ignorance, and growing incoherence of the public at large.”

For still others, Obama’s failures can be traced to James Madison. George Packer complains that Obama’s failures are in part institutional. He lists a slew of items on the liberal agenda items “the world’s greatest deliberative body is incapable of addressing.” Paul Krugman warns that the Senate is “ominously dysfunctional” and insists that the way it works is “no longer consistent with a functioning government.” For Vanity Fair’s Todd Purdum, “The evidence that Washington cannot function — that it’s ‘broken,’ as Vice President Joe Biden has said — is all around.” The modern presidency “has become a job of such gargantuan size, speed, and complexity as to be all but unrecognizable to most of the previous chief executives.”

Commentators such as the Washington Post’s Ezra Klein place responsibility on “powerful structural forces in American politics that seem to drag down first-term presidents” (though Klein does acknowledge other factors). The New Republic’s Jonathan Chait pins the blame on “structural factors” and “external factors” that have nothing to do with Obama’s policies.

Then there are those who see the pernicious vast right-wing conspiracy at work. Frank Rich alerts us to the fact that the problem lies with “the brothers David and Charles Koch,” the “sugar daddies” who are bankrolling the “white Tea Party America.” Newsweek‘s Michael Cohen has written that, “Perhaps the greatest hindrance to good governance today is the Republican Party, which has adopted an agenda of pure nihilism for naked political gain.” And Mr. Krugman offers this analysis: “What we learned from the Clinton years is that a significant number of Americans just don’t consider government by liberals — even very moderate liberals — legitimate. Mr. Obama’s election would have enraged those people even if he were white. Of course, the fact that he isn’t, and has an alien-sounding name, adds to the rage.” Krugman goes on to warn that “powerful forces are promoting and exploiting this rage” — including the “right-wing media.” And if they come to gain power, “It will be an ugly scene, and it will be dangerous, too.”

What most of these commentators are missing, I think, are two essential points. First, the public is turning against Obama and the Democratic Party because the economy is sick and, despite his assurances and projections, the president hasn’t been able to make it well. And in some important respects, especially on fiscal matters, the president and the 111th Congress have made things considerably worse. Second, an increasing number of Americans believe Obama’s policies are unwise, ineffective, and much too liberal. They connect the bad results we are seeing in America to what Obama is doing to America.

But there’s something else, and something deeper, going on here. All of us who embrace a particular religious or philosophical worldview should be prepared to judge them in light of empirical facts and reality. What if our theories seem to be failing in the real world?

The truth is that it’s rather rare to find people willing to reexamine or reinterpret their most deeply held beliefs when the mounting evidence calls those beliefs into question. That is something most of us (myself included) battle with: How to be a person of principled convictions while being intellectually honest enough to acknowledge when certain propositions (and, in some instances, foundational policies) seem to be failing or falling short.

It’s quite possible, of course, that one’s basic convictions can remain true even when events go badly. Self-government is still the best form of government even if it might fail in one nation or another. And sometimes it is simply a matter of weathering storms until certain first principles are reaffirmed. At the same time, sometimes we hold to theories that are simply wrong, that are contrary to human nature and the way the world works, but we simply can’t let go of them. We have too much invested in a particular philosophy.

President Obama’s liberal supporters understand that he is in serious trouble right now; what they are doing is scrambling to find some way to explain his problems without calling into question their underlying political philosophy (modern liberalism). If what is happening cannot be a fundamental failure of liberalism, then it must be something else — from a “communications problem” to “structural factors” to a political conspiracy. And you can bet that if things continue on their present course, ideologues on the left will increasingly argue that Obama’s failures stem from his being (a) not liberal enough or (b) incompetent.

If the Obama presidency is seen as damaging the larger liberal project, they will abandon Obama in order to try to protect liberalism. They would rather do that than face an existential crisis.

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Partners in the Conservative Revival

Both Bill Kristol and Peter Berkowitz have taken up the issue of conservative reform and the respective tasks of wonkish conservative innovators and the grassroots Tea Party movement. The mainstream media like to portray the two groups — the reformers and the Tea Partiers – in opposition in a party civil war (as if Rep. Paul Ryan and Sarah Palin were in competition for the soul of the GOP). But as Kristol and Berkowitz explain, the two aspects of the revived conservative movement are compatible, and each is essential in its own realm.

Kristol reminds us that the Tea Party movement has helped to unnerve and beat back the liberal statists, but that is the beginning and not the end of a conservative resurgence:

We already have a Middle American populist reaction against the government schemes of pointy-headed intellectuals. Barack Obama got the highest percentage of the votes of any Democratic presidential candidate since Lyndon Johnson in 1964; Republicans look to be on track this year to replicate their 47-seat House pick-up in 1966.

What comes next? That’s up to us—especially to us conservatives. We’re not doomed to repeat the pretty miserable political, social, and economic performance of 1967-80. …

Can conservatives develop a program, an agenda, and a governing vision that would, in the words of Federalist 39, vindicate “that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government”?

And Berkowitz provides a helpful review of the history of conservative reform, pointing toward those whose task it will be to provide an alternative to Obamaism:

New Jersey Gov. Chris Christie, Indiana Gov. Mitch Daniels, Louisiana Gov. Bobby Jindal, Mississippi Gov. Haley Barbour and Wisconsin Rep. Paul Ryan are among those officeholders in the process of recovering reform as a conservative virtue. In November, Meg Whitman, the new Republican nominee in California, and Brian Sandoval, the new Republican nominee for governor in Nevada, stand a good chance to join their ranks.

Today’s conservative reformers appreciate that within its limited sphere government should be excellent. Promoting individual responsibility, self-reliance and opportunity requires targeted action, beginning with health-care reform that really controls costs by eliminating barriers on insurance companies operating across state lines and limiting malpractice damages; public-sector reform that reins in unions by reducing benefits and expanding accountability; and education reform that through school-choice programs gives parents, particularly in low income and minority communities, greater control over their children’s education.

None of this is to underestimate or denigrate the intellectual underpinnings of the Tea Party movement. Despite the media indictment (Racists! Know-nothings!), it is perhaps the most wonkish popular uprising we’ve had in the past century. It is the CATO  Institute’s dream mass movement — based on self-reliance, limited government, sound money, fiscal discipline, and market economics. Many of the protesters like to carry copies of the Constitution. For every inflammatory hand-painted sign that CNN films, there are dozens quoting James Madison, challenging the “bailout nation,” and contesting the constitutionality of an individual health-care insurance mandate. It’s certainly a step up from “Turn on, tune in, drop out.” But it is not a methodology for governing nor an agenda for what would follow Obamaism. You don’t write legislation in mass gatherings seeking to discredit and upend those in power. And it’s unrealistic and misguided to expect a mass movement to decimate a political agenda, defeat liberal one-party rule, defend itself against incessant media attacks – and come up with a health-care alternative, a scheme for entitlement reform, and proposals to tame the debt. (The latter is the work of Ryan, Daniels, Christie, et. al.)

The media narrative that the conservative movement is riven with conflict is, as is so much else the media spew, a distortion intended to bolster the spirits of the left and paint the right in the most disagreeable light possible. We actually have witnessed a rather effective division of labor on the right, with reformers and Tea Partiers collaborating on common goals. They share a mutual desire to put a stake through the heart of the statist agenda of one-party Democratic rule and to find a better alternative. The first task is well under way; the latter is just beginning.

Both Bill Kristol and Peter Berkowitz have taken up the issue of conservative reform and the respective tasks of wonkish conservative innovators and the grassroots Tea Party movement. The mainstream media like to portray the two groups — the reformers and the Tea Partiers – in opposition in a party civil war (as if Rep. Paul Ryan and Sarah Palin were in competition for the soul of the GOP). But as Kristol and Berkowitz explain, the two aspects of the revived conservative movement are compatible, and each is essential in its own realm.

Kristol reminds us that the Tea Party movement has helped to unnerve and beat back the liberal statists, but that is the beginning and not the end of a conservative resurgence:

We already have a Middle American populist reaction against the government schemes of pointy-headed intellectuals. Barack Obama got the highest percentage of the votes of any Democratic presidential candidate since Lyndon Johnson in 1964; Republicans look to be on track this year to replicate their 47-seat House pick-up in 1966.

What comes next? That’s up to us—especially to us conservatives. We’re not doomed to repeat the pretty miserable political, social, and economic performance of 1967-80. …

Can conservatives develop a program, an agenda, and a governing vision that would, in the words of Federalist 39, vindicate “that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government”?

And Berkowitz provides a helpful review of the history of conservative reform, pointing toward those whose task it will be to provide an alternative to Obamaism:

New Jersey Gov. Chris Christie, Indiana Gov. Mitch Daniels, Louisiana Gov. Bobby Jindal, Mississippi Gov. Haley Barbour and Wisconsin Rep. Paul Ryan are among those officeholders in the process of recovering reform as a conservative virtue. In November, Meg Whitman, the new Republican nominee in California, and Brian Sandoval, the new Republican nominee for governor in Nevada, stand a good chance to join their ranks.

Today’s conservative reformers appreciate that within its limited sphere government should be excellent. Promoting individual responsibility, self-reliance and opportunity requires targeted action, beginning with health-care reform that really controls costs by eliminating barriers on insurance companies operating across state lines and limiting malpractice damages; public-sector reform that reins in unions by reducing benefits and expanding accountability; and education reform that through school-choice programs gives parents, particularly in low income and minority communities, greater control over their children’s education.

None of this is to underestimate or denigrate the intellectual underpinnings of the Tea Party movement. Despite the media indictment (Racists! Know-nothings!), it is perhaps the most wonkish popular uprising we’ve had in the past century. It is the CATO  Institute’s dream mass movement — based on self-reliance, limited government, sound money, fiscal discipline, and market economics. Many of the protesters like to carry copies of the Constitution. For every inflammatory hand-painted sign that CNN films, there are dozens quoting James Madison, challenging the “bailout nation,” and contesting the constitutionality of an individual health-care insurance mandate. It’s certainly a step up from “Turn on, tune in, drop out.” But it is not a methodology for governing nor an agenda for what would follow Obamaism. You don’t write legislation in mass gatherings seeking to discredit and upend those in power. And it’s unrealistic and misguided to expect a mass movement to decimate a political agenda, defeat liberal one-party rule, defend itself against incessant media attacks – and come up with a health-care alternative, a scheme for entitlement reform, and proposals to tame the debt. (The latter is the work of Ryan, Daniels, Christie, et. al.)

The media narrative that the conservative movement is riven with conflict is, as is so much else the media spew, a distortion intended to bolster the spirits of the left and paint the right in the most disagreeable light possible. We actually have witnessed a rather effective division of labor on the right, with reformers and Tea Partiers collaborating on common goals. They share a mutual desire to put a stake through the heart of the statist agenda of one-party Democratic rule and to find a better alternative. The first task is well under way; the latter is just beginning.

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Obama’s Petard

President Obama promised at least eight times during the campaign to have the legislative negotiations over reforming health care televised on C-Span. That has not happened and, in the final sprint to the finish line, will not happen. The letter from Brian Lamb, the head of C-Span, merely brought the obvious out into the open.

Republicans, naturally, are having a field day comparing Obama’s oft-repeated promise of openness and transparency with the reality of a few congressional Pooh-Bahs (none of them Republican) and White House aides meeting at unannounced times behind very closed doors. When they are done, a vast bill will be rushed to each congressional floor and voted on with just as much dispatch as Nancy Pelosi and Harry Reid can manage. If no one except the negotiators even has a chance to read the bill, let alone consider it in depth, before the final vote, so much the better. It will then pass, unless some Democrats — looking over their shoulders at the increasing number of their fellow party members who have decided to spend more time with their families — figure out that their political survival requires defying the party bosses. And it will pass on a strictly party-line vote. The most significant piece of domestic legislation since the New Deal will pass without a single Republican vote.

Who is to blame for giving the Republicans such as wonderful cudgel with which to beat President Obama and the congressional Democrats over the head? Well, it was that political genius Barack Obama. It was a dumb political move on his part to have ever suggested open negotiations, let alone promising them over and over.

Real negotiations — as opposed to questioning witnesses and debating on the floor — are never held in public. If they were, political opponents and lobbyists would be hanging on every word. The give and take, the thinking out loud, the tentative suggestions, the horse-trading that are so much a part of any negotiation would be impossible when every casual phrase, recorded on C-Span’s camcorders, might be turned into an attack ad for the next election.

When the most momentous negotiations in American history — the Constitutional Convention of 1787 — met for the first time, the members of the convention agreed to strict secrecy. Sentries were posted at all doors. The windows — in a sweltering Philadelphia summer — were kept closed, a discreet member of the convention always attended Benjamin Franklin’s convivial dinner parties to make sure the great man did not talk too much. James Madison’s notes (by far the most important source we have for what went on) were not published until 1840, after all the delegates to the convention were dead.

The Founding Fathers did a pretty good job in those secret meetings 222 years ago. They created what is perhaps the only work of genius ever produced by a committee. The attendees at the secret negotiations over health care will probably not fare as well in the opinion of history. They are not founding a republic, after all; they are trying, with increasing desperation, to get a dirty deal done.

President Obama promised at least eight times during the campaign to have the legislative negotiations over reforming health care televised on C-Span. That has not happened and, in the final sprint to the finish line, will not happen. The letter from Brian Lamb, the head of C-Span, merely brought the obvious out into the open.

Republicans, naturally, are having a field day comparing Obama’s oft-repeated promise of openness and transparency with the reality of a few congressional Pooh-Bahs (none of them Republican) and White House aides meeting at unannounced times behind very closed doors. When they are done, a vast bill will be rushed to each congressional floor and voted on with just as much dispatch as Nancy Pelosi and Harry Reid can manage. If no one except the negotiators even has a chance to read the bill, let alone consider it in depth, before the final vote, so much the better. It will then pass, unless some Democrats — looking over their shoulders at the increasing number of their fellow party members who have decided to spend more time with their families — figure out that their political survival requires defying the party bosses. And it will pass on a strictly party-line vote. The most significant piece of domestic legislation since the New Deal will pass without a single Republican vote.

Who is to blame for giving the Republicans such as wonderful cudgel with which to beat President Obama and the congressional Democrats over the head? Well, it was that political genius Barack Obama. It was a dumb political move on his part to have ever suggested open negotiations, let alone promising them over and over.

Real negotiations — as opposed to questioning witnesses and debating on the floor — are never held in public. If they were, political opponents and lobbyists would be hanging on every word. The give and take, the thinking out loud, the tentative suggestions, the horse-trading that are so much a part of any negotiation would be impossible when every casual phrase, recorded on C-Span’s camcorders, might be turned into an attack ad for the next election.

When the most momentous negotiations in American history — the Constitutional Convention of 1787 — met for the first time, the members of the convention agreed to strict secrecy. Sentries were posted at all doors. The windows — in a sweltering Philadelphia summer — were kept closed, a discreet member of the convention always attended Benjamin Franklin’s convivial dinner parties to make sure the great man did not talk too much. James Madison’s notes (by far the most important source we have for what went on) were not published until 1840, after all the delegates to the convention were dead.

The Founding Fathers did a pretty good job in those secret meetings 222 years ago. They created what is perhaps the only work of genius ever produced by a committee. The attendees at the secret negotiations over health care will probably not fare as well in the opinion of history. They are not founding a republic, after all; they are trying, with increasing desperation, to get a dirty deal done.

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What a Trip

As this vivid account of the Copenhagen climate fest makes clear, the proceedings seem to be less like a scientific and policy conference and more like a Woodstock flashback:

As activists from groups as wide-ranging as the Girl Scouts and the World Council on Churches converge on the climate change conference in Copenhagen, some critics say it’s turning into a “circus” sideshow, with 20,000 attendees creating an international echo chamber of climate piety. Apart from the main proceedings, there are 254 side events, 231 exhibits and more than 200 press conferences already on the schedule — meaning there are about 700 extra events keyed up for the 12-day conference. “These circuses get bigger and bigger,” said Myron Ebell, director of energy and global warming policy at the Competitive Enterprise Institute, a Washington think tank. “It’s a big echo chamber — they’re just reassuring themselves.”

It’s quite apparent that many of the true believers don’t think much — or care much — about science or facts. (“A group called GenderCC (Women for Climate Justice) rejects using distractions like ‘numbers’ and ‘target dates’ to track and fight climate change, and doesn’t appear very interested in the environment itself. Instead, it hopes to implement ‘gender-mainstreaming’ and ensure that the U.N. guarantees the fullest participation of ‘feminist scientists’ at every level.”) There is a group pushing contraception and population “control” and one that wants to “explore how thoughts affect matter and how a shift in consciousness can transform current deteriorating conditions.”

The religious-like fervor is hard to miss here. Facts and science don’t really figure when you’re shifting consciousness. What is interesting is the vicious antagonism displayed by the mainstream media when conservative gatherings like the Tea Parties are covered. They ignore those groups’ serious bent (posters displaying James Madison quotes never seem to make it into CNN coverage) and focus instead on the inevitable loony element that turns out for any mass movement. But when the confab is filled with, indeed dominated by, those indifferent to reason and obviously peddling a hippy-dippy agenda, the MSM is mute, playing along with the game that the confab is a serious exercise in science-based policymaking.

As this vivid account of the Copenhagen climate fest makes clear, the proceedings seem to be less like a scientific and policy conference and more like a Woodstock flashback:

As activists from groups as wide-ranging as the Girl Scouts and the World Council on Churches converge on the climate change conference in Copenhagen, some critics say it’s turning into a “circus” sideshow, with 20,000 attendees creating an international echo chamber of climate piety. Apart from the main proceedings, there are 254 side events, 231 exhibits and more than 200 press conferences already on the schedule — meaning there are about 700 extra events keyed up for the 12-day conference. “These circuses get bigger and bigger,” said Myron Ebell, director of energy and global warming policy at the Competitive Enterprise Institute, a Washington think tank. “It’s a big echo chamber — they’re just reassuring themselves.”

It’s quite apparent that many of the true believers don’t think much — or care much — about science or facts. (“A group called GenderCC (Women for Climate Justice) rejects using distractions like ‘numbers’ and ‘target dates’ to track and fight climate change, and doesn’t appear very interested in the environment itself. Instead, it hopes to implement ‘gender-mainstreaming’ and ensure that the U.N. guarantees the fullest participation of ‘feminist scientists’ at every level.”) There is a group pushing contraception and population “control” and one that wants to “explore how thoughts affect matter and how a shift in consciousness can transform current deteriorating conditions.”

The religious-like fervor is hard to miss here. Facts and science don’t really figure when you’re shifting consciousness. What is interesting is the vicious antagonism displayed by the mainstream media when conservative gatherings like the Tea Parties are covered. They ignore those groups’ serious bent (posters displaying James Madison quotes never seem to make it into CNN coverage) and focus instead on the inevitable loony element that turns out for any mass movement. But when the confab is filled with, indeed dominated by, those indifferent to reason and obviously peddling a hippy-dippy agenda, the MSM is mute, playing along with the game that the confab is a serious exercise in science-based policymaking.

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God and Man in Rome

When it comes to cultural exchange programs for academics, my reflexive attitude tends to be very much like my attitude toward the institution of tenure: it’s probably a bad idea in many cases, for most people, but if it’s going to exist . . . well, I shouldn’t deny myself the benefits. Thus I’ve come to Rome, under the auspices of the Fulbright program, for a semester of teaching and lecturing. I am not sure whether five months spent living in Rome and traveling around Italy will make me a better professor, but the experiment seemed worth conducting. So I have taken it on—strictly, I will have you know, in the severe spirit of disinterested scientific inquiry, a spirit I bring with particular asperity to my examination of Italian foods and wines.

I am teaching the history of American religion to graduate students in an American-studies program, and can report that the level of interest in the subject is extremely high. I had not really wanted to spend so much of my time teaching about American religion, but my Italian hosts insisted otherwise, and now I understand their wisdom.

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When it comes to cultural exchange programs for academics, my reflexive attitude tends to be very much like my attitude toward the institution of tenure: it’s probably a bad idea in many cases, for most people, but if it’s going to exist . . . well, I shouldn’t deny myself the benefits. Thus I’ve come to Rome, under the auspices of the Fulbright program, for a semester of teaching and lecturing. I am not sure whether five months spent living in Rome and traveling around Italy will make me a better professor, but the experiment seemed worth conducting. So I have taken it on—strictly, I will have you know, in the severe spirit of disinterested scientific inquiry, a spirit I bring with particular asperity to my examination of Italian foods and wines.

I am teaching the history of American religion to graduate students in an American-studies program, and can report that the level of interest in the subject is extremely high. I had not really wanted to spend so much of my time teaching about American religion, but my Italian hosts insisted otherwise, and now I understand their wisdom.

None of my students, so far as I can tell, consider themselves believers in any conventional sense, though I assume that most are at least nominally Roman Catholic, and have been baptized and confirmed. Italians, like most of us, hedge their bets; and given the remarkable closeness of Italian families, and the still-formidable presence of the Italian mama, I suspect that such young people go to mass more often than they let on.

But they are utterly without the kind of anti-religious or anti-clerical edge to their sentiments that one might expect, and seem genuinely curious to understand the reasons behind the otherwise inexplicable (to them) persistence of religion in America. They came into the course knowing nothing whatever about Protestantism, and are astonished to find out that the New England Puritans were such formidable intellects, to read documents like James Madison’s magisterial “Memorial and Remonstrance,” and to see the truth in Tocqueville’s assertion that in America, the spirit of liberty and the spirit of religion actually supported one another, and that the Enlightenment and Protestantism coexisted with remarkable comfort.

Above all, they are curious: curious about revivalism and its relationship to social reform movements, curious about Mormonism, curious about all the utopian experiments of the 19th century and all the other wild edges of American religion, curious about the centrality of the conversion experience in American evangelicalism, about how Protestants understood the authority of the Bible, and perhaps above all, about the voluntaristic character of American religion. The Baptist emphasis on the primacy of the uncoerced conscience: this is an ideal that clearly intrigues them.

In other words, it is all entirely new to them, so that the experience of teaching them has been energizing, and has caused me to see my own subject afresh. (Thank you, Senator Fulbright.) From the inside of American culture, one is at times impressed by nothing so much as the anarchy and inanity of American religion: its thinness, its institutional chaos, its individualism, its trendiness, its willingness to pander to the consumer and to the culture. These observations remain as valid as ever. And yet my experiences here, listening to students who have grown up in a largely monochromatic religious culture, in which the choices placed before them are far more stark, cast it all in a different light.

We Americans take our freedoms too lightly in other respects, and our highly voluntaristic religious culture—and the boisterous vitality and variety of religious expression that have resulted from it—is no exception. Not all of what it produces is to my taste. But the exercise of freedom is not the same thing as good taste. “It is the duty of every man,” Madison said, “to render to the Creator such homage and such only as he believes to be acceptable to Him.” My Italian students help me to see anew the grandeur in those words.

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