Let's see...
I have a TNR column in which I argue that the SCOTUS decision on ACA won't matter, or won't matter much, in November. Hey, I was on Sirius/XM talking about it this afternoon. Good fun! But it has put me way behind posting today...well, that, and the thing I'm working, which I may or may not get done later today, is taking forever. Hint: Nerdwars. At Post Partisan, I say that Newt Gingrich and Rick Santorum are totally justified in lying about the status of their campaigns -- but that the press shouldn't be gullible about it.
And at Greg's place, I have a post up talking about SCOTUS, ACA, limiting principles, and democracy. Short version: the only limiting principle anyone needs is Madison. Give it a try.
"The Court conservatives cannot knock out the mandate, and retain the New Deal, and be consistent."
ReplyDeleteWe assume that conservatives are particularly concerned with consistency. Yet, didn't these same folks just overturn more than 100 years' worth of legislation and judicial precedent on campaign finance without batting an eye?
On another note:
"Conservatives say they are demanding justification for why the law would not invite broccoli tyranny."
Well, I say, where will it all end? If these people can't be compelled today to pay for their health care, then tomorrow they will be opting out of paying for their broccoli!
Great column JB. I kinda feel like when liberals whine about Obama and his lawyers not doing a good enough job arguing yesterday in front of SCOTUS they are really saying "Obama and his lawyers didn't do a good enough job using a tea party world view and tea party talking points to prove why the government should expand access to health care." Of course they didn't. Asking for a limiting principle by a Justice like Scalia shows what he already thinks. And even if the solicitor general did a "better" job articulating such a principle that allows more Americans to have access health care but save us from broccoli tyranny conservatives would still say it wasn't good enough or find some other problem.
DeleteIt reminds me a lot of a point from the world of comparative politics (not the focus of this blog I know). In Rory Stewart's great book about the war in Iraq "the Prince of The Marshes" there's a scene where a 20 something CPA lackey gives Rory a huge speech about how the single most important thing for a new democratic Iraq is a "good" constitution. Stewart points out that he comes from a country, Britain, that is very democratic but has no constitution and the Iraqi Constitution from 1969-that was still on the books in 2003-was actually quite liberal and calls for independent courts, the rule of law, human rights etc. What the Iraq needed (and still needs) was more Madison, independent and effective institutions sharing power, not a "better" Constitution.
Jonathan, I think you're kind of jumping the gun in accusing Conservatives of ignoring a precedent that hasn't even been made yet.
ReplyDeleteOn your advice to liberals, I really doubt that they will completely abandon any notion of limited government. If they do, then they should at least do the decent thing and retire their once-proud title "liberal." I'll be curious to see what kind of response you get on that.
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DeleteThis was meant to be in response to the Plum Line article.
DeleteCouves,
DeleteIt's not a rejection of limited government at all. It's an embrace of Madisonian democracy as self-limiting.
Now, there are some specific, relatively unambiguous powers denied the government under the constitution. But a whole lot of the constitution is just plain ambiguous. So at any moment, it's "limited" by what the Court believes can be done...which is inescapably contested. There's no, in my view right answer to these things, no hard line that you can draw once and everyone will agree with (and my guess is that there can't be any right answer -- that is, the idea that you can make "limited government" out of substantive Constitutional rules turns out to be wrong).
Jonathan, I'm not sure I understand your point. Not everyone is going to agree on any Constitutional limitation, including those that you consider "relatively unambiguous." Some of what I consider the most basic freedoms guaranteed by the Constitution have recently been compromised by the federal government. We need to be more sensitive to Constitutional limitations, not less.
DeleteLook, you may say that the only limiting principle necessary is Madisonian democracy. That may be true from the point of view of your political theory. But it is manifestly not true from a constitutional point of view. Yes, the constitution was intended to create government power. But it did so by creating a federal government of enumerated powers, explicitly denying it plenary power.
ReplyDeleteIncidentally conservatives have a perfectly valid "limiting principle" of the kind you suggest they don't - the federal government may act according to its enumerated powers (and the Necessary and Proper clause) but do no more.
I also think it fascinating that on the one hand you say that "interpretation of the constitution... is resolved by the democratic process," and on the other hand you include the courts in the Madisonian checks and balances. But the way that courts act as a check and balance is to invalidate unconstitutional laws - like this one.
On the other hand, the Constitution marked a rejection of small government, states' rights, and no federal taxes, all of which were embodied to a greater extent in the Articles of Confederation. Frankly, one of the key events that led to the rejection of the Articles was the inability of the federal government to suppress armed citizens rebelling in western Massachusetts. One of the events taken as a sign that the new system worked was George Washington's success in federalizing several states' militias in order to compell people in western Pennsylvania to pay a federal excise tax. Sometimes I wonder whose history the Tea Party folks have been reading.
DeleteI wouldn't go that far -- the Constitution represented a shift of power from state to national authority, but it didn't inaugurate social democracy as Johnathan is suggesting. The commerce clause, for example, wasn't originally intended to regulate every aspect of personal economic activity, but to free people from state border controls.
DeleteShay's Rebellion is more Occupy than Tea Party.
My comment is in response to Scott.
DeleteHm, I've been under the impression that Obamacare will be the biggest issue. Rhetorically, it's an easy weapon.
ReplyDelete