|Three Battles |
The Political-Ideological Conflicts that Will Define the Decade
by Robert Tracinski
In considering the implications of the Obamacare hearings, I got to thinking about how this fits into the bigger picture: the larger political-ideological conflicts that will define, not just this election year, but this decade, the teens.
I think there are three big battles to be fought, offering three distinct variations on one common theme.
• Economic Judicial Review
Ideological conflicts in the political arena are a lot like ideological conflicts in the courts. They are fought, not in terms of vague generalities, but in the concrete terms of specific cases. The ideological issue of capitalism versus communism, for example, was settled by a 1989 ruling in the long-contested case North Atlantic Treaty Organization v. Warsaw Pact. You get the idea.
So it is fitting that one of the big battles that defines this era will be a court case.
We don't know yet under what name the Supreme Court's Obamacare ruling will go down in history. They're considering two cases: National Federation of Independent Business v. Sebelius and Florida v. United States Department of Health and Human Services. Whichever it is, I suspect it will become as much a household word as Roe v. Wade.
Yesterday, I discussed the significance of this case, with a brief overview of the legal history involved. That article is now up at RealClearMarkets. The upshot is that for the past 70 years, the courts have refused to exercise judicial review over regulation of the economy, but this case could resurrect constitutional protections for economic freedom.
Interestingly, this is the point just made by President Obama, who told reporters: "Well, first of all, let me be very specific. We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned at least since Lochner, right? So we're going back to the '30s, pre-New Deal." The president is right on the larger issue. On economics, the courts have allowed pure, unlimited majority rule, and that is what the left is desperately scrambling to preserve. But all of Obama's details are wrong, from the date of Lochner to its central issue. James Taranto does a nice job of analyzing Obama's ignorance.
I have neither attended an elite law school nor taught a course on constitutional law, so I was a little surprised to find out that I know ten times as much constitutional history as Obama. But only a little. After all, the whole point of modern statist jurisprudence is that they do not have to study or think about the Constitution when dreaming up their economic controls.
Obama made this gaffe when he was pressed to explain an earlier comment on the Supreme Court, in which he launched his own miniature version of FDR's campaign against the "nine old men." Obama told reporters: "Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." Ignore little details like the fact that Obamacare passed by a 219-212 vote in the House—hardly a "strong majority." The big news is that Obama's statement seems to deny the very existence of judicial review, i.e., the power of the courts to declare a law unconstitutional. This prompted an appeals court that is still hearing an Obamacare-related case to call the president's bluff and demand an exact written statement from the Justice Department describing their position on judicial review. That ought to be interesting.
Of course, each side of the political debate hates judicial review when the results go against them, but they love it when it goes their way. After all, hasn't the use of judicial review—and a rather loose and freewheeling interpretation of it, finding "emanations from penumbras" of the Constitution—been central to the left's agenda? What the hell else was Roe v. Wade? Surely, it thwarted "strong majorities" in states that wanted to ban abortion.
Yet now we are beginning to see a campaign on the left denouncing Supreme Court justices as political " hacks dressed up in black robes." That's from Maureen Dowd, who I suppose ought to know a thing or two about political hacks.
At any rate, if this is the left's reaction, not to the Obamacare ruling itself, but to the mere suggestion that economic liberty might have constitutional protection—well, you can see how significant this issue really is.
So that's the first battle: to restore what we might call "economic judicial review."
• Entitlement Reform
The second battle is one that President Obama took up at the same time that he launched his attack against the courts. His other target was Paul Ryan's budget, and specifically its effort at entitlement reform, which Obama condemned as "thinly veiled Social Darwinism."
I can't think of a philosopher with less influence and fewer followers today than Herbert Spencer. But the pseudo-intellectuals on the left use "Social Darwinism" the same way they use Galileo: not as an actual person who stood for specific ideas, but as a partisan political talking point.
The Ryan budget has nothing to do with Social Darwinism, much less with laissez-faire. It is explicitly billed as an attempt to preserve the welfare state by making it economically sustainable. But it does do something important that the left regards—correctly—as a crisis. Ryan would limit the welfare state. The essence of his plan for Medicare and Medicaid is to move from "defined benefits," in which recipients are promised a certain outcome no matter how much it costs, to "defined contributions," in which the government pledges to spend only a certain, limited amount of money. The goal is to make it possible to keep the welfare state within a predictable budget, rather than having it be an open-ended, unlimited claim on the taxpayer.
In effec, the Ryan plan does not regard the welfare recipient's need as an unlimited claim on the taxpayer, and that is what the left regards as immoral. This is the central ideological issue: a limited claim on our lives and efforts, versus an unlimited one.
• Global Warming
These first two issues are ones that I have discussed recently. But a third battle is part of the same big picture: the battle over global warming regulations.
It is important to grasp the specific role that global warming serves within the environmentalist ideology and political program. Without global warming, environmentalism has to chip away at industrial civilization piecemeal, banning a couple of chemicals here, blocking development on an environmentally "sensitive" site over there. They can harass industrial civilization around the edges and significantly slow it down. But global warming allows them to attack industrial civilization at its heart.
Carbon dioxide is an unavoidable byproduct of the only type of power source, fossil fuels, that is cheap and plentiful enough to power industrial civilization. By portraying carbon dioxide as a threat to the planet itself, environmentalists make industrial civilization as such into an evil to be eradicated.
The global warming dogma is what make the claims of environmentalism total, perhaps even totalitarian. Global warming justifies the regulation of everything in industrial civilization, as a matter of life and death. It makes the environmentalists' claims on our lives unlimited.
There's that word again: unlimited.
You can see the common theme. The battle is between unlimited government, and government that is "limited"—in the very broadest sense of that term.
It strikes me that we are still dealing with the hangover of the 20th century. For most of the previous century, the threat that was always hanging out there, as the alternative to a free society, was unlimited control: totalitarian dictatorship. Fascism was vanquished in 1945 and Communism in 1989-1992. But the Western left never really gave up the dream of unlimited control. They tried to reconstitute an ideology of total control under the banner of environmentalism and global warming. They tried to push for the universalization of the welfare state by expanding it step by step to the point where everyone would be dependent on government. And to make all of this possible, they are now trying to preserve the vacant constitutional space that has allowed them to pursue unlimited controls in the realm of economics.
The battle today is not yet about strictly limiting government to only its legitimate functions, the police, the courts, and the military. The best result we can expect in this decade is simply to turn back from unlimited government to a government that is still too big but constrained within some limits. We cannot expect the courts to enforce laissez-faire, but we can hope that they will be open to constitutional arguments against economic regulations. We cannot expect Congress to dismantle the welfare state, but we can hope that they will restrict it to a defined size and budget. We cannot expect to abolish the EPA, but we can hope that Congress and the president will deprive it of its unilateral power to control all power generation.
Like I said, this is the battle of the coming decade. Maybe we will achieve all of these goals earlier. Maybe achieving them and protecting them will take a bit longer. But then we can move on the next step. Big ideological issues like this do not favor stasis. They tend to move toward greater ideological consistency, one way or another. So what are the further implications of the issues I have just named? What are the battles they open up for the next decade?
If Obamacare is struck down, reviving economic judicial review, then it is clear that many other economic controls are vulnerable to similar constitutional arguments. If we limit the scope of the welfare state, then fewer and fewer Americans will be dependent on it. They will be more likely to regard it as unnecessary, particularly for the self-supporting middle-class, and they will be open to limiting it further. If the global warming dogma is refuted, it will discredit every other claim made by the environmentalists.
The implications would be, well, unlimited.