An ongoing review of politics and culture

5 Items, Zero Spin

1) My letter to Jonah Goldberg is as yet unanswered. Should that change, I hope the response reflects his genuinely held convictions, rather than his efforts to “do his part“ in the spin wars.

2) Johann Hari’s Slate piece on Ayn Rand is just the latest example of a journalist who writes about the extraordinarily popular author but it utterly unable to understand her appeal. Perhaps someone should figure out precisely why so many Americans regard her as someone with valuable insights. I’ll happily submit to an interview on that subject. Meanwhile see here for a smart Ayn Rand critique. (Via Rod Dreher)

3) This is easily the best piece on Michael Bloomberg’s re-election.

4) “If there were no War on Drugs, I sincerely believe that within a single generation, there would be no perceptible “crisis in black America,” and this book shows much of why that’s true. The War on Drugs turns whole neighborhoods against the cops—with no discernible benefit after more than 30 years.” — John McWhorter, recommending the book Snitch.

5) Aztec warriors, enamored by the iridescence of humming birds, sometimes contrived to outfit themselves in ankle length hummingbird feather coats, so that striding into the slanting sunlight of late afternoon they’d shimmer like otherworldly apparitions. How depressing that the most likely contemporary application of this knowledge involves pay per view “wrestling.”

Open Letters, Etc.

1) I knew I’d like that guy who threw punches in the Washington Post newsroom! (Also, if you’ve never read Gene Weingarten before, marvel at this.

2) I’ve written an open letter to Jonah Goldberg.

3) Reihan deserves better than to be juxtaposed next to nonsensical Facebook commenters.

4) Thanks to Maine voters, gay people in the state will be legally prohibited from making state sanctioned commitments to lifetime monogamy. This is billed as a conservative victory.

The Banality of "The Banality of 'The Banality of Evil'"

Even more annoying than the people who yammer on about “the banality of evil” are those who obsessively denounce the idea. “Oh, the banality of ‘the banality of evil,'" someone will say, exasperated that he alone holds people accountable while everyone else denies our capacity for moral choice and excuses mass atrocity. However banal the original insight might be, the comeback — that people make choices for which they are morally responsible — far outdoes it. Yet Ron Rosenbaum has been building this case for at least ten years. In 1999, he wrote that the banality cliché is “a sophisticated form of denial … Not denying the crime but denying the full criminality of the perpetrators.” Last week he repeated the charge. But one would think that a decade of cogitation would yield a more compelling argument than this:

Either one knows what one is doing is evil or one does not. If one knows and does it anyway, one is evil, not some special subcategory of evil. If one doesn’t know, one is ignorant, and not evil. But genuine ignorance is rare when evil is going on.

Read more…

Presidential Politics

Ross Douthat writes:

When people pine for third parties, they usually have a fantasy presidential candidate in mind — a Colin Powell or a Michael Bloomberg, riding in to save us from partisanship and corruption.

But presidential elections are the place where the two-party system seems more necessary than ever. The office of the presidency has become so potent and so polarizing — part priest-king, part ritual scapegoat — that chief executives need to represent the broadest possible coalition to have any chance of success.

I submit that the best recent presidential leadership we’ve experienced came when Bill Clinton’s presidency was weakened by scandal and the Newt Gingrich orchestrated takeover of Congress — whereas the era of unified Republican government under George W. Bush and unified Democratic government under Barack Obama are turning out to be far worse for the country.

Were a Colin Powell or a Michael Bloomberg elected president I don’t know how they’d fare — perhaps the times I’ve cited are merely evidence in favor of divided government — but I’d rather risk an independent POTUS not getting very much done than see a president with a large, supportive coalition in Congress rapidly implementing lots of ill-conceived policies.

The Metaphorical Equivalent of War

I actually understand why Ross’s latest column is getting so much negative commentary. No, of course he doesn’t think we should be engaged in a holy war against Islam . . . in any literal sense. But that just points up the peculiarity of the military metaphors – “fronts” and “foes” and “appeasement” and so forth – without which, basically, the column wouldn’t exist.

Here’s the key question: in what sense does the Catholic overture to Anglicans in any way constitute building a “united front” “against” Islam? What does that even mean, really?

I think what’s going on here is that Catholic assumptions about how a religious community should be organized are simply being assumed, and these are driving the analysis. The Catholic Church is a rarity among global religions in being organized in a heirarchical manner modeled, originally, on a military organization (the Roman Empire). That’s not the way most Protestant denominations, or Rabbinic Judaism, or Sunni Islam, or Hinduism, or most other religions around the world are organized. But it’s pretty central to Catholicism – precisely because of that contrast.

If you look at the world that way, then it might make perfect sense to say that, if you perceive a rising threat (feel free to frame Islam as a “competitor” rather than a “foe” – it doesn’t actually change anything important for my purposes) then one needs to strengthen one’s own hand. Inasmuch as the Pope understands himself to be the proper leader of the entire Christian community, albeit not acknowledged as such by a substantial portion thereof, and inasmuch as he understands that form of organization to be vital to the mundane success of that community, then it is entirely logical for him to say something to the effect of “in times like these, we need to all get under one banner as much as possible; if that means bending where we can plausibly bend, so be it, and if that means offending those who choose not to join us, so be it as well.” But that says more about the nature of his world view than it does about its validity.

Why, after all, is it necessarily the case that unity under a single leader makes it more likely that Christianity as such will survive and thrive when faced with a resurgent Islam? No doubt Christianity is competing with Islam for converts – certainly in Asia and Africa. No doubt Christian communities are engaged in actual violent conflict with Islamic communities in many parts of the world – as well as being subject to more or less oppressive rule in some countries where Islam predominates. No doubt there are pastors of various denominations in Europe who fear for the future when they compare the average age and regularity of attendance of their congregations to those of the mosques down the block. But the argument that the response to this situation should be “unity under the leadership of the Pope” needs to be made, not assumed. It seems at least as plausible to me that a decentralized religious culture is more conducive to rapid growth and more likely to respond effectively to diverse challenges from without and within.

If Ross knows that Pope Benedict was actually thinking about the challenge from Islam when he planned his move against the Anglicans, then that’s the story – and that’s reporting. But as written, the column seems merely to assume that this was his thinking – and, furthermore, to assume that this thinking was correct, without actually making an argument for the latter.

Metaphors are wonderful things – unparalleled, really, as tools of communication. But for that very reason of their natural persuasiveness, they have to be carefully examined to make sure the implied equivalencies are actually there. This holds not only in metaphorical wars, but in real ones. See, for instance, the “soft underbelly” of the Axis supposedly located somewhere in the vicinity of Sicily.

WASP Guilt

In this silly review of George Gilder’s The Israel Test, Scott McConnell takes Gilder’s explicit arguments to be symptomatic of deeper psychological scars. He suggests that an embarrassing moment during Gilder’s adolescence explains why Gilder would be politically supportive of Israel. Indeed, for McConnell it explains why any WASP would be pro-Israel:

While trying to impress an older girl, his summer tutor in Greek, he blurted out something mildly anti-Semitic. The young woman dryly replied that she was in fact “a New York Jew.” Gilder was mortified. He relates that he has never quite gotten over the episode. It is the kind of thing a sensitive person might long remember. Variations on this pattern are not uncommon in affluent WASP circles to this day: guilt or embarrassment at some stupid but essentially trivial episode of social anti-Semitism serve as a spur for fervent embrace of Likud-style Zionism. Atonement. It would not be surprising if a similar process helped to shape George W. Bush’s mentality.

What Gilder had said to the girl was a reply to her question about how he liked studying at Exeter. “Echoing sentiments I had heard both at home and at school,” Gilder recalls, “I responded, ‘Exeter’s fine, except that there are too many New York Jews.’” Gilder briefly describes how his embarrassment taught him something about resentment and social grace:

Rather than recognizing my shortcomings and inferiority and resolving to overcome them in the future, I had blamed the people who had outperformed me. I had let envy rush in and usurp understanding and admiration. I had succumbed to the lamest of all the world’s excuses for failure — blame the victor. I would pay by losing the respect of this woman I then cared about more than any other.

Instead of leaving it at this commonplace but worthwhile moral lesson, McConnell thinks the “New York Jew” episode overshadows and “animates” the entire argument of Gilder’s book. According to Gilder, it spurred him to be more open-minded. But McConnell thinks the “incident” filled Gilder with such overwhelming guilt that he became a self-hating shill for the Israel lobby. And that some similar social faux pas probably explains the Bush Doctrine and the invasion of Iraq. Who is it, again, who regards these events as “essentially trivial”?

This seems deeply weird, but it’s not hard to play armchair psychologist with McConnell, too. It is obvious to him why Jews would like Israel, but WASPs? What on earth could possibly lead a self-respecting white Anglo-Saxon Protestant to admire a Jewish state when, in McConnell’s view, ethnonationalism would command otherwise? So McConnell invents a sort of false consciousness, a “WASP guilt,” to explain it. It’s a mean-spirited slur, of course. Critics of Israel have long alleged that Israel’s supporters seek to silence debate by leveling overblown accusations of anti-Semitism at them, but McConnell now insists that non-Jewish supporters of Israel must be self-hating Uncle Toms. “This sequence might be amusing if the real-life consequences were less sinister,” as McConnell puts it. But apart from that, one wonders what seething resentments lurk behind McConnell’s strange worldview. What traumatic event in the boyhood days of Scott McConnell can explain it?

News of My Disappearance Has Been Mildly Exaggerated

To those of you who have written to ask or have been wondering in silence the answer is, yes, the combination of finishing a dissertation while planning for a cross-country move and a new job and also welcoming another son into my family (born in the living room, no less) has ground to a halt what little was left of my bloggy momentum. There is, though, a piece of mine in the latest New Atlantis in which I offer a Burkean’s lament over the death of conventional wisdom, focusing on – what else? – the science and pseudo-science of food, as well as a review in the November TAC of Susan Brewer’s Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq, which I liked quite a lot. I was, however, quite frustrated by Brewer’s unwillingness to face down the consequences of her research for the traditional hagiography of one Franklin Delano Roosevelt:

Least satisfying of all is Brewer’s claim—made in both the introduction and the conclusion, and in each case entirely without argument—that even deceitful state propaganda can be tolerable if the cause is sufficiently noble. Brewer notes at the start that she believes World War II—“a legitimate war,” she calls it—fits this billing. She supplements this diagnosis with her attempt to distinguish the “censorship, exaggeration, and lies” relied on by the likes of the Bush administration from the “strategy of truth” adopted by FDR. But the facts make it hard to sustain such an interpretation: from Brewer’s own account, Roosevelt lied to the public about his intended policies as he ran for a third term in 1940, censored news reports that were deemed insufficiently optimistic, and of course sent 180,000 Japanese Americans to concentration camps. (“Pioneer communities” was the official term.) Even the truth-telling strategy Brewer champions was itself an advertising move, based on the recognition that “too much salesmanship” on the part of the Office of War might turn people off, while more “straightforward and practical” instructions on what to do and believe would “regain public confidence in official propaganda.” If the cartoonish film and poster campaigns of the Wilson administration are the point of comparison, then the Iraq War’s salesmen come off rather well, too. But that doesn’t change the fact that in each case the public was being dishonestly sold a war by men who would barely have to sacrifice, much less fight and die, to implement their preferred policies.

All of which raises some natural questions: Are there circumstances in which state officials are permitted to lie, suppress non-strategic facts, or otherwise distort the truth in the service of an official agenda can be licit? If so, what circumstances are those? And more generally, what sorts of threats might be posed to a democracy by its government’s ability to exploit its inherent authority by functioning as a sort of advertising agency for itself?

Surveying the Right

UPDATE: Link fixed. Sorry!

Given my recent work on The GOP Speaks — 26 entries now posted, and more to come — I found this survey of conservative Republicans fascinating, and consistent with the answers I’ve been getting from GOP county chairmen.

It is a must-read for everyone engaged in the conversation about the future of conservatism.

Especially noteworthy:

1) It is wrongheaded and counterproductive to ascribe ideological opposition to President Obama to his race.

2) Talk radio and FOX News are so tremendously influential among the most dedicated movement conservatives that it is creating an alternate reality of ill-conceived paranoia — those who regard this stuff as hilarious, amoral entertainment underestimate the harm it causes.

3) It’s time for the right to start dis-aggregating the entities that make up “the media.” Treating it as a single antagonistic collective working in concert to thwart conservative ends is rendering conservatives unable to understand reality. That even sophisticated if sometimes blinkered media critics like Andrew Breitbart fall into this trap is not reassuring.

How the Law Works

I’m going to relate some information I learned at a dinner party earlier tonight. I’ve yet to corroborate it. My hope is that readers can point out any errors in the story as I’ve heard it, and help me to think through its ramifications.

Here goes, as told to me.

In Delaware, when a corporate board of directors issues an order, it is compelled by law to sign and date it, else the action taken is legally invalid. So say that the board of directors wants to sell stock held by the company. It isn’t enough that it acknowledges having approved the sale of stock. Each board member who favors selling the stock must actually sign a dated statement to that effect.

The law is intended to prevent CEOs from abusing their power. The idea is that CEOs were taking controversial actions, and persuading their boards of directors to rubber stamp them after the fact. Legislators assumed that board members willing to validate actions ex post facto would be less willing to sign backdated documents to fraudulently corroborate that permission was given.

This came up in a conversation about the amount that law associates at corporate firms are paid. The person telling the story was trying to give an example of how a first year associate might add value to the firm and its clients. In this case, the first year associate knew about this Delaware law. It empowered the firm to check up on a corporation — I don’t know whether it was a client or the adversary of a client — to see whether or their board of directors complied with this regulation. As the story was told to me, the firm had mistakenly neglected to date certain orders that validated actions it took. These weren’t cases of the CEO seeking ex post facto approval for controversial actions, but it was nevertheless the case that certain significant actions taken by the firm were technically invalid.

If all this is accurate, it strikes me as an excellent example of how a seemingly reasonable regulation, passed with the best intentions, can contribute to a legal regime so complicated that we wind up in a society where it makes sense to pay many lawyers hundreds of dollars an hour to navigate it, and where the law is less effective at encouraging fair play as it is at maximizing the advantage held by the folks who are able to hire the best attorneys.

Does this strike folks as sound, factually and analytically?

Paramilitary Groups, Riots on the Streets of New York City

The estimable Richard Rabinowitz has another history exhibit on display at the New-York Historical Society. The subject is Abraham Lincoln’s first visit to New York. This is a fascinating tidbit from the review in The New York Times:

Lincoln’s supporters formed an organization, the Wide Awakes, with its own paramilitary uniforms and songs. In 1860 30,000 Wide Awakes marched in a five-hour torchlight parade through New York City streets; one of their torches, amazingly, is on display here.

And later in the same piece:

…in July 1863, that war of words turned bloody. A telegram from the Republican financier John Jay to Lincoln announced, “Our City is at the mercy of a mob.” In four days of riots, partly inspired by opposition to military conscription and its exemptions for the wealthy, looting and destruction were aimed not only at Republicans like Greeley but also at black New Yorkers. The Colored Orphan Asylum was pillaged and burned, and the Colored Sailors’ Home was attacked. An order from Lincoln (displayed here), following close on the heels of the battle at Gettysburg, declared martial law.

Calm was restored, but with 120 dead and 2,000 injured, the exhibition notes, it was “the worst civil disorder in the nation’s history — except for the Civil War itself.”

Useful perspective next time someone says that the nation is as polarized as it’s ever been.

Paging Adrian Nicole LeBlanc

This should be your next book project.

Race Baiting on the Radio -- Updated

That’s how Rush treats people — in the Martin Luther King aspiration that the content of one’s character is what matters, not the color of one’s skin. Yet, in the media narrative, he’s somehow the one who’s got a race issue — and the guys who trade on race, live and breathe it 24/7, are held up as our public conscience. The Left calls this “progress.” I call it perversion.

There’s only one way this nonsense ever goes away: When we say “enough!” and tell the race-baiters their time is up.

— Andy McCarthy

Who has frivolously labeled more people racist in 2009, Al Sharpton or Rush Limbaugh? Prior to researching my latest column at The Daily Beast I would’ve said the former, but now I’d guess the latter. See what I’m talking about here.

This is an issue I’ve always cared a lot about. Its partly a function of seeing college activists, and even some administrators, cynically using race as a political cudgel. I also think, when I see something like the Duke Lacrosse controversy, that those who falsely cry racism aren’t merely destroying someone’s reputation without regard for the truth, they are also leading minorities to believe that more people hate them than is in fact the case.

On the left, I think cynical, false charges of racism are used pretty routinely. The most recent example I can think of is ACORN’s CEO insisting that the whole pimp and prostitute controversy is actually rooted in bigotry against the largely non-white folks that the organization serves. What alarms me on the right is the tendency to immediately dismiss all charges of racism… and the simultaneous trend, relatively recent in origin, to use charges of racism as cynically and irresponsibly as anyone. I’m afraid that Mr. Limbaugh is one of the men driving this trend, and if you read this, I think you’ll find that proposition quite difficult to deny.

UPDATE: Also see David Frum, who does a good job explaining why many conservatives are reacting to the fake racist quote attributed to Mr. Limbaugh as they are.

UPDATE 2: I tangle with Adam Serwer here.

Giving kids the vote: the Polanski counter-argument

Regular readers of the Scene will know that I favor giving kids the vote. However, I’ve come to think of a devastating counter-argument. No one has yet made it to me, but if I’ve thought of it surely someone else will: that of the age of sexual consent.

If someone doesn’t think kids should get the vote, they can say something like “If a 13 year old can vote, who’s to say he or she can’t consent to have sex, or feature in pornographic material?” I call it the Polanski counter-argument. To be sure, technically it doesn’t invalidate my thesis, but it is devastating nonetheless, and I don’t have a good counter-counter-argument. It troubles me.

Do you guys have any ideas?

"Taking Responsibility"

I found Freddie’s post that criticized Ross Douthat and demanded that conservatives take responsibility for the Bush Administration’s failures… well, incoherently argued (though well-written enough that I didn’t realize it until I read through it twice). I delve into details here.

The Nobel "Peace" Prize

So the Nobel Committee doesn’t like George W. Bush. We get it. In 2002 they gave the Nobel Peace Prize to Jimmy Carter, saying the award “should be interpreted as a criticism of the line that the current administration has taken … it’s a kick in the leg to all that follow the same line as the United States.” Now they give it to President Obama for “creat[ing] a new climate in international politics. Multilateral diplomacy has regained a central position, with emphasis on the role that the United Nations and other international institutions can play.” It’s pretty clear the committee thinks of the Nobel Prize as a tool they use to conduct their own diplomacy, rather than an award for those who have actually achieved some, you know, peace.

In 2007, you might remember, the committee said “By awarding the Nobel Peace Prize for 2007 to the IPCC and Al Gore, the Norwegian Nobel Committee is seeking to contribute to a sharper focus on the processes and decisions that appear to be necessary to protect the world’s future climate, and thereby to reduce the threat to the security of mankind. Action is necessary now, before climate change moves beyond man’s control.” Now they say:

For 108 years, the Norwegian Nobel Committee has sought to stimulate precisely that international policy and those attitudes for which Obama is now the world’s leading spokesman. The Committee endorses Obama’s appeal that “Now is the time for all of us to take our share of responsibility for a global response to global challenges.”

It seems the Nobel Committee really thinks the award for promoting world peace should go to itself.

American Conservatism and the Beaconsfield Position

In reviewing Sam Tanenhaus’s The Death of Conservatism, Jackson Lears repeats Tanenhaus’s odd contention that “One puzzling feature of American politics is that the people who call themselves conservatives seldom want to conserve anything.” In the original essay that became the book, Tanenhaus insisted that “movement politics most clearly defines itself not by what it yearns to conserve but by what it longs to destroy — ‘statist’ social programs; ‘socialized medicine’; ‘big labor’; ‘activist’ Supreme Court justices, the ‘media elite’; ‘tenured radicals’ on university faculties; ‘experts’ in and out of government.” While it’s clear what the right has opposed, wrote Tanenhaus, conservatives remain “haunted” by the question of “what exactly has it been for?”

This is all very silly. Each item on Tanenhaus’s list of things conservatives oppose could be restated as something conservatives support: So the conservative movement stands for liberty against statism, free markets and choice against socialized medicine, freedom of contract and the right to work against big labor, originalism and constitutionalism against activist Supreme Court justices, fairness and patriotism against the media elite, and the Great Books and traditional core curricula against tenured radicals. It’s not a particularly puzzling feature of American politics that the conservative movement wants to destroy the things Tanenhaus lists — it’s precisely because conservatives want to protect something else.

But Tanenhaus thinks this isn’t proper conservatism. He believes conservatism reached “its peak period as an intellectual force” in 1965-1975, after which conservatives lost their minds. Tanenhaus lauds Irving Kristol’s Public Interest, for example, for publishing “rigorously nonpartisan policy analysis” during that time, but then accuses Kristol of going delusional in 1975 when he identified a “new class” of liberal social engineers who wanted to ideologize American life. By 1995, Tanenhaus writes, Kristol “spelled out the terms of revanchist strategy” by writing “American conservatism is a movement, a popular movement, not a faction within any political party. Though, inevitably, most conservatives vote Republican, they are not party loyalists and the party has to woo them to win votes. This movement is issue oriented. It will happily meld with the Republican party if the party is ‘right’ on the issues; if not, it will walk away.”

Tanenhaus thinks this is crazy, but it’s no different from how any other political faction operates. The party might decide not to court the movement’s votes, if it wants to, but the movement — precisely because it believes its agenda is best for the country — will try to urge the party in its direction. Tanenhaus makes a straightforward description of democratic politics seem like a nefarious conspiracy.

Indeed, any argument that traces the fall of modern conservatism to the election of Ronald Reagan is self-evidently ridiculous. Tanenhaus’s view of conservatives as serving “the vital function of clarifying our shared connection to the past and of giving articulate voice to the normative beliefs Americans have striven to maintain even in the worst of times” seems to relegate them to writing literary essays in National Review but not actually affecting public policy. That’s because Tanenhaus doesn’t think their policy prescriptions are worth implementing. He seems to think it’s self-evidently a bad idea — and anti-Burkean! — to want to reduce the size of government or regulatory burdens or taxes or to actually see those traditional normative beliefs reflected in law, but that only means he disagrees with conservatives, not that he’s diagnosed some kind of pervasive intellectual rot.

As an alternative to modern American conservatism, Tanenhaus offers “the Beaconsfield position” of Benjamin Disraeli. At the end of his essay, Tanenhaus quotes Disraeli’s Vindication of the English Constitution :

“Political institutions, founded on abstract rights and principles, are mere nullities,” Disraeli wrote. Europe, too, had its pre-democratic places where “a comparative civilisation had been obtained under the influence of a despotic priesthood. And these are the regions to which it is thought fit suddenly to apply the institutions which regulate the civil life of Yorkshire and of Kent!”

It’s not clear whether Tanenhaus means to endorse Disraeli’s view that other Europeans, “untinctured, even in the slightest degree, by letters, and steeped in the grossest superstition,” are incapable of democratic self-government. “We may celebrate the constitutional coronation of a Bavarian in the Acropolis and surround his free throne with the bayonets of his countrymen,” Disraeli writes immediately after the passage Tanenhaus quotes. “We may hire Poles and Irishmen as a body-guard for the sovereign, who mimics the venerable ceremonies of Westminster as she opens the parliaments of Madrid or Lisbon; but invincible nature will reject the unnatural novelties, and history, instead of celebrating the victory of freedom, will only record the triumph of folly.”

Yet putting aside Tanenhaus’s position on the prospect of achieving democracy in Spain, the simple fact is that the American Constitution, unlike the British, founded America’s political institutions precisely upon those “abstract rights and principles” Disraeli dismissed. In his Vindication, Disraeli denounced a new “political sect” that aimed “to submit the institutions of the country to the test of Utility and to form a new constitution on the abstract principles of theoretic science.” By contrast, in Federalist 9 Alexander Hamilton wrote that the American Constitution owes its form to “great improvement” in “the science of politics,” which led to an understanding of “the efficacy of various principles” such as the separation of powers and a system of checks and balances. “These are wholly new discoveries,” wrote Hamilton of these abstract principles, “or have made their principal progress towards perfection in modern times.”

The United States and Britain have two different constitutional and political traditions. For all Tanenhaus’s discussion of Burke, he doesn’t seem to understand that precisely because Burke rejected universalist ideology, he would not have the same political prescription for America as for Britain, but would have paid attention to the distinctive features of each society. Britain has an evolutionary, unwritten constitutional tradition while America was born of revolution and adopted a Constitution based upon abstract principles in order to protect abstract rights. It’s no surprise American conservatives are not Beaconsfieldians; they are conserving different things. Tanenhaus’s idea that the conservatism of nineteenth-century England is the ideal form of conservatism for twenty-first-century America and everywhere else is about as far removed from “Burkean conservatism” as one can get.

Tenther Madness

I recently wrote this piece in part because conservatives have been embarrassing themselves by arguing that President Obama’s “czars” offend the constitutional separation of powers. For at least three decades, conservatives have argued that the Constitution requires a unitary executive and now, all of a sudden, they discover that the Constitution requires the president’s advisers to submit to congressional oversight. That’s not a principled position.

There is a temptation, when you lose at the polls, to use the courts for political gain. Thus, we recently learned from Judge Andrew Napolitano that health-care reform is unconstitutional, even though the Constitution authorizes Congress to regulate interstate commerce, because “one goes to a physician not to engage in commercial activity … but to improve one’s health.” As it happens, I visited my physician last week for a regular check-up. When he presented me with a bill, I explained that I had visited his office only to improve my health, not to engage in commercial activity. He wasn’t impressed. Maybe next time I’ll bring a copy of Judge Napolitano’s op-ed.

(By the way, the subheading of Napolitano’s piece, “Why hasn’t the Commerce Clause been read to allow interstate insurance sales?,” makes no sense at all. The Commerce Clause authorizes Congress to regulate interstate commerce but it doesn’t require Congress to regulate in any particular way. Everyone reads the Commerce Clause “to allow interstate insurance sales.”)

Added to this, the so-called Tenthers think all manner of new legislation is unconstitutional. There is no question that the courts have weakened the constitutional restraints on Congress, and it’s useful to point that out in order to guard against further attrition. But come on. The courts are not going to declare health-care reform unconstitutional. It’s just a fanciful notion that consigns its adherents to the political fringe. Federal regulation is with us, for better or worse, and conservatives should try to make it better rather than worse.

Conservatives have long argued that it’s unhealthy to use courts to decide policy questions because it removes contentious political issues from the realm of democratic deliberation. What’s more, when a political movement focuses its efforts on declaring some policy unconstitutional, it removes itself from the debate over how to craft that policy. Instead of revisiting Supreme Court cases from the 1940s, the Tenthers might want to read up on health policy.

For the same reason, conservatives should be defending the president’s use of informal policy czars. Creating a White House policy apparatus doesn’t undo the growth of the administrative state since the New Deal — that’s not going to happen anytime soon — but it’s a significant counter-measure: it helps shift the balance of power towards unitary executive control of the bureaucracy. And that’s a change we can believe in.