The biggest cause of confusion faced by Originalists—the folks who think the Constitution means what it originally did in the late 1700s—isn’t the one you’d probably guess at first.  You’d probably guess it has to do with how we can know what 18th century Americans were thinking.  And how can anyone know what Americans more than two and a quarter centuries ago thought “due process” was, or what a “reasonable search and seizure” was?  We can hardly get consensus on such questions in our own time, despite the best efforts of armies of pollsters.  And even if we did know what 18th century Americans were thinking, how would that tell us how to decide questions faced by 21st century Americans?  So much has changed since then, so does it even matter what the Constitution originally meant?

Those are tough questions, but they’re not what is confusing about Originalism.  What’s confusing is that most people don’t understand whose understanding we care about in fixing the meaning of the Constitution.  The people responsible for drafting the document?  The delegates who actually ratified it?  Or the American people in whose name they drafted and ratified?

I submit that confusion about this preliminary who question makes one more likely to conclude that the other problems—determining and applying the original meaning—are just too difficult and thus the Originalist project not worthwhile.  On the other hand, once we get the right answer to the who question, I submit that the importance of the Originalist project becomes clearer.  And while determining and applying original meaning is still difficult, it is central to the American experiment in self-government that we try.

The who question is easy to get wrong because we so often defer to founders like James Madison who drafted the Constitution.  It is natural to assume that the words meant what its writers intended.  But thinking a little deeper, it should be clear this is incorrect.  It was widely understood—including by Madison, by the way—that the American people were sovereign.  Though Madison and the other framers wordsmithed the Constitution, they did so on the sovereign people’s behalf.  This is also what happens when lawyers draft a contract on behalf of their clients.  The lawyer’s meaning doesn’t count—only the parties.  Why?  Because the document concerns the rights and obligations of the parties, not the lawyers.  The lawyers are just their scribes.

In the same way, it is the people’s understanding that controls the meaning of the Constitution, because the Constitution is authorized by the people’s authority and concerns the people’s rights.  The framers were just their scribes.

This, by the way, is the brand of Originalism known as original public meaning.  When I refer to Originalism, I mean specifically original public meaning, which I take to be the only correct variant.

Before asking your further indulgence in this exercise, let me briefly put Originalism in context with that other famous approach to constitutional law, Living Constitutionalism.  Originalism presumes a fixed meaning in the Constitution.  Living Constitutionalism, on the other hand, rejects the presumption that a fixed meaning exists or controls, and instead holds that its words take on new and different meanings to adapt to modern contexts and facilitate human progress.

In this contest, Originalism’s distinct advantage is this:  If the Constitution fails to reflect the meaning of the American people in whose name it was written, negotiated, and ratified, then the Constitution is no longer an act of self-government.  You would not expect to be bound by such a constitution any more than you would expect to be bound by a clever lawyer’s contractual interpretation that you never reasonably could have imagined.  In other words, self-government absolutely depends on presuming a fixed meaning in the Constitution in order to give effect to the people’s will.

Let’s assume for now that you’re with me on Originalism.  We still have to grapple with the “how do we know their meaning” and “how do we apply it” questions.  But since at this point you’ve signed on to my theory, you can’t simply call these questions too difficult and Originalism doomed.  You’d be admitting the defeat of self-government.  You’re not admitting that, are you?

Besides, it doesn’t make any sense to conclude that difficulty in determining or applying the Constitution’s original public meaning suggests the exercise is somehow unimportant.  When has difficulty ever undermined importance?  Quite the opposite.  Ending slavery was both extremely difficult and extremely important.  So was D-Day.  So were Civil Rights.  Nothing was ever drained of its importance by difficulty.

So the Constitution’s original public meaning does not become unimportant just because it is difficult to ascertain its precise meaning or apply it to contemporary problems.  But if we can’t determine or apply its meaning, then isn’t the self-government project doomed just as if we rejected Originalism outright?

To this, I respond that determining and applying Originalism does not require that we know with precision or certainty how 18th century Americans would have voted on specific legislation.   We don’t even know today how a vote on anything is going to come out until it actually happens.  But the 18th century was not a dark age, and there is much evidence of the mood of Americans as to a great number of important subjects that informed their understanding of the Constitution.

Take the National Day of Prayer, about which Mr. Likko recently wrote.  True, we cannot tell how a vote on such an act would have come out in 1791 when the original public meaning of “establishment of religion” presumably was never fresher in mind.  But we do have an understanding of how Americans generally understood the role of religion and government.  For example, the Constitution of Massachusetts in 1780 provided that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of GOD, and of public instructions in piety, religion and morality.”  The Northwest Ordinance of 1789 provided that “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”  And if the views of John Adams can be said to harmonize with the public’s, “if you want the good order that comes from instruction in religion, particularly the Jewish and Christian religion, then you have to pay for it.”  We should at least be skeptical, then, at suggestions that the Constitution requires that we approach or resolve a question today in a manner that probably would have seemed very odd then.

In other words, approaching a question like a national day or prayer with considerations about whether it falls within Congress’s enumerated powers, whether it violates its role vis-à-vis the states, freedom of conscience, etc., seems to be in line with concerns felt by 18th century Americans.  Approaching it with considerations about categorically keeping anything smacking of religion out of government, on the other hand, is probably pouring new wine into old skins.

But again, certainty and precision are not the touchstone.  In our attempt to glean the original public meaning of a constitution, we are looking at how the people understood the structure of government and the role of man, society, and government. Beyond that, Originalism does not require or suggest that we precisely determine or apply 18th century Americans’ reaction to specific policy proposals.

Instead, what Originalism requires is that we at least pay homage to why the Constitution mattered, what it set out to do—indeed, why it exists at all.  I see much room for discussion in how we answer such questions.  But I find misguided Originalism’s detractors who object that those things are unimportant, that we have better things to do than worry about what the people intended by ratifying the Constitution; better things such as finding new meanings for those words.  Justice Sutherland once wrote that “to say … that the words of the Constitution mean today what they did not mean when written—that is, that they do not apply to a situation now to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.”

The good justice was right. The people are no longer sovereign if we cease to interpret their laws.   To reject the original public meaning is to remove the people from the seat of sovereign power and install Webster in their place.

[Cross-posted at the main page]

[Updated to correct an error pointed out by Mr. Corneille.]

When I learned it, I thought the motion for this month’s Intelligence Squared U.S. debate – “The GOP Must Seize the Center or Die” – was simply dreadful.  How could the opposing case possibly be made without fighting a losing battle with the proposition itself?  Of course the GOP needs to win more votes from the center; of course they’ve been successfully characterized as out-of-touch with centrists.  And indeed, the pre-debate poll showed a staggering 65% in favor of the motion and only 14% opposed.  This lousy motion seemed certain to succeed.

Yet Laura Ingraham and Ralph Reed, to their great credit, defeated David Brooks and Mickey Reynolds by successfully convincing the audience,* as Ingraham put it, that “You don’t seize the center; you create the center.”  And not only that, but that the GOP could successfully create a new center instead of settling for the one we have.

Both Ingraham’s and Reed’s performances were excellent, and Brooks and Edwards performed ably, but Ingraham’s closing deserves special mention:

I want to start by saying — you’re not going to believe I’m saying this. But I’m going to say you should reject this proposition that the Republican Party should seize the center or die because I have a lot of faith and respect in the decision-making that Barack Obama made when he could have gone that way. He could have, himself, seized the center. He could have seized it in 1985 when it looked like liberalism was on the run.  He could have seized in 1994, when this Newt Gingrich guy just took the country by storm, love him or hate him, but changed the face of politics. He could have given up hope in 2001 and 2002 when the whole country was rallying toward this war in Iraq, and he decided, "You know something? It’s — in my view, it’s the wrong thing to do. Because the establishment and everyone around him was probably telling him, "The center has moved. You’ve got to go that way."

He didn’t go that way. He had a certain set of principles. I disagree with him deeply, but he had a certain sense of himself and sense of principles that he decided to follow, and he followed in a new way by reaching out to all those disaffected Democrats who were kind of tired of the old way and Republicans who were kind of sick of where the Republicans were falling down. And, lo and behold, Barack Obama, by not seizing the center , unseated the establishment candidate of, of course, Hillary Clinton, decided, "Guess what? Liberalism is back. I never let it go. I never moved to the center, and I’m going to bring along constituency after constituency in looking at the world and the country in a new way." He found his center. Republicans, guess what? They know where they — what they believe and how they believe it.

Seizing the new center is political death. Please reject the proposition.

I strongly agree with Ingraham.  The premature reports of average Americans’ leftward turn are greatly exaggerated.  Polls show Americans still prefer state and local government to federal government.  Most want smaller government.  A vast majority favor making second and third term abortions illegal (64% and 80% respectively).  (Did you know that?  I didn’t.  Even the cited Gallup poll buries that underreported fact near the bottom of the page, underneath nonsense questions like whether people identify as “pro-choice” or “pro-life,” or whether Roe v. Wade should be overturned (ignoring that it’s already been largely overturned by Planned Parenthood v. Casey).)  The claim that most Americans are conservative even passes dejected fact-checker muster: Kevin Drum glumly exonerated Marco Rubio when he made the claim:  At least a plurality of Americans self-identify as conservative, and a Politico poll last year reported an overwhelming 61% of likely voters identified as conservative.

Ingraham is right: It would be folly to rush to adopt the views of such a “mushy middle” held together in large part by a personally popular president now in his second term. The problem with talking about “the center” is that it is a constantly shifting thing.  That a generally conservative nation has gotten on board with a big-federal-government lefty suggests that there’s lots of room for the GOP to remake the center – should the GOP get its messaging act together, that is. Best that the GOP not cash out during this string of bad hands.  Keep a seat at the table and wait for a new dealer – it likely won’t be another New Dealer, after all.

*Per the debate rules, the team that wins the most number of converts to its position by the end of the debate wins, no matter whether its side of the motion wins a majority of votes.

I’ve seldom agreed with Hugh Hewitt so strongly—and readers know I agree with him a lot—as I do on repealing the medical device tax through regular constitutional order and not the usual rendering of pig lips and cow parts.  Hewitt has a post today on the issue at his blog.  Here’s a key exchange from Hewitt’s interview yesterday with Rep. Kevin Brady, chairman of the Ways and Means health subcommittee, who agrees with Ways and Means chairman Dave Camp on refusing to pass a clean repeal bill through regular order:

HH: He’s [Camp] got more than enough votes to pass a clean repeal bill of the medical device tax. When’s it coming?

KB: Well, hopefully soon. There’s two, you talked with Erik, who’s doing an amazing job. And there’s strong bipartisan support. And the Senate vote was hugely, hugely helpful. You know, now we just need to get it to the President’s desk. And the way you do that, one of two ways. You do it through fundamental tax reform, which we hope is sooner rather than later, or the simpler, faster way would be to have the head of the Senate Democrats, Harry Reid, simply agree with Chairman Dave Camp that this needs to move, and can do so without the shenanigans, because my fear is we know if we send a tax bill to the Senate, what they’ll do with it, that that then kills the medical device tax, which is what we want to repeal. So what we really want to do is an agreement, a legislative agreement, to move the bill separately. That’s how I think we do it sooner.

HH: Now Mr. Chairman, with all due respect, all I can do is speak for me and the people listening to this show. Regular order is what we were expecting at the beginning of this session, which to me means that you guys pass good bills, and you send them to the Senate, and then you let the Senate do with them what they ought to do, and if they pass something different, you go to conference and you come to it. I do not like us waiting. In fact, I’ve got, I’m getting very exercised over the fact that we’re waiting to do a secret deal with Harry Reid.

KB: No, Hugh, it’s not a secret deal. It’s simply a recognition that we are not going to send over a tax bill that gets hijacked for a lot of politics, and at the end of the day doesn’t repeal the device tax, which is what our goal is. And so all this is, is a recognition that this issue, because of its impact on jobs and innovation, it’s important enough not to be played political games with.

. . . .

HH: I know you do, but, and God bless you if you can get it out of committee and get it over to the Senate. But if you can’t stop medical device tax from being hijacked, you can’t stop comprehensive tax reform from being hijacked. Mitch McConnell has said send me a clean bill. If you don’t, that means you don’t trust the Republicans to be able to run their own side in the Senate. And it’s a secret deal. Mr. Chairman, there’s no other way. What you’re outlining is a secret negotiation as opposed to regular order.

. . . .

KB: Well, and I will tell you what, I don’t see it, I just don’t see it that way. I wish things up here worked like they did in the textbook, but they don’t. And to me, it seems like having leaders in a bipartisan way, with bipartisan support saying this is so important, this is so important, and there is such agreement, that we will move it promptly and cleanly? It seems to me that’s how you solve this problem and help save those jobs, because again, too often good intentions and good ideas get hijacked for the opposite, so…

Look, if things aren’t working right, stop right there.  You’ve put your finger on the problem, now fix it.  If you truly believe that necessary and proper laws cannot be passed in the manner the constitution prescribes, then repealing medical devices taxes is just rearranging deck chairs.  Hewitt hits back hard with this: 

HH: But what makes me uncomfortable is I’m just done. I’m done with the NRCC. I’m done raising a dime for any of you folks, and I’m finally going to throw in with the Campaign For Primary Accountability and hope that they run people against you, because honestly, I did not work this hard for 13 years to send Republicans to do secret deals with lame duck Ways And Means chairmen with Max Baucus. I worked hard to send Republicans to Congress to pass tax repeal, send it over, and let us put pressure on the Senate, because it is everything I hate about the Beltway.

This is my feeling as well.  I care about good policy, but I care more—and I think conservatives in general care more—about the rule of law and enacting policy through regular constitutional order. 

I don’t know if it is fair to accuse, so let me ask the question instead:  Is this sort of thing—the deviation from regular constitutional order to achieve a particular policy—more or less likely to occur among establishment Republicans than among Tea Party Republicans?  My feeling is that, because the Tea Party is partly a populist movement by definition, and because they spend such great effort paying homage to the Constitution, they are more likely to adhere to its prescribed procedures even when they make it less likely to promulgate policies they like. 

Am I wrong?  Can someone make the case for David Camp and Kevin Brady? 

Reviewing Supreme Court Justice Antonin Scalia and Bryan A. Garner’s Reading Law: The Interpretation of Legal Texts in the Claremont Review of Books, David Forte exposes Justice Scalia’s famous legal positivism as moral philosophy by another name.  “They call false,” Forte writes of Scalia and Garner, “the ‘notion that the quest in statutory interpretation is to do justice,’” and they, like Alexander Hamilton, prefer judges to be “‘bound down by strict rules and precedents.”  But judging, Forte pushes back, is an inescapably moral craft. 

Here’s Forte making his case:

But the maxim “no man should profit from his own wrong,” [the application of which Scalia and Garner dispute in the absence of a statute to that effect] which is a corollary to “no man should be a judge in his own case,” is an element of the rule of law itself, which can, in reason, suffer no absurdity or self-contradiction.  It is contradictory for a judge who personifies legal neutrality to decide a case in which his interests are at stake.  It is an absurdity for a regime of law that seeks to deter murder to embed an incentive to murder in its law [referring to the example of a orphan who petitions for his inheritance after murdering his parents].

These maxims are not moral rules drawn from some extrinsic standard and emplaced into the law by the judge’s whim; they are implicit in the nature of what is law, the determination of which is, as Marshall insisted, the essence of the judicial enterprise. If the command of the positively enacted law defines all there is to law, then the maxim (also from Lord Coke) that “the law compels no man to impossible things” would also have no place.  The irony of Scalia and Garner’s position is that it disputes the historical provenance of judicial review itself, namely Coke’s opinion in Bonham’s Case (1610) in which a parliamentary enactment was struck down as offending the maxim that no man can be a judge in his own case. 

Writing in his Dissertation on First Principles of Government, Thomas Paine observed: “Every art and science has some point or alphabet at which the study of that art or science begins and by the assistance of which the progress is facilitated.”  This is true of the enterprise of judging. 

Incidentally, I don’t think Justice Scalia disagrees with the basic nub of natural law arguments.  I don’t think he writes off Lord Coke as a shiftless foreshadowing of living constitutionalism.  Instead, Justice Scalia points out that we are no longer a new nation barren of laws.  The United States has matured since Chief Justice Marshall’s time.  Our land is now planted thick with laws, canons, maxims, and precedents.  It is thus both needless and dangerous for judges to presume we need yet another class of lawmakers.  It’s not an easy argument to dismiss. 

Tim Carney wrote yesterday that when Obama was a state senator, he “repeatedly voted against legislation requiring hospitals to care for babies born during abortions” because “[s]uch laws might somehow be used in the future to infringe on abortion’s legality.”  Carney argues that “Gosnell’s method for aborting babies wasn’t substantially different from a procedure Obama enthusiastically defends.” 

Today, the White House has no comment on Gosnell, noting that it concerns on an ongoing legal matter.  A totally valid response—is what I would have said if Obama didn’t have such a track record of commenting on ongoing legal matters when he felt it was politically advantageous to do so.  White House press secretary Jay Carney also had no comment on whether, similar to Newtown, babies who are being snuffed out in Gosnellian clinics deserve a vote on some new form of preventive legislation.  No such legislation has been proposed, Carney responded.  And besides, Carney went on, “the President’s views on choice are quite clear.” 

I’m surprised no one in the comments to my last post drew the connection to Alisa LaPolt Snow, the Planned Parenthood rep who suggested to a Florida legislator that babies born alive do not need further intervention from the state.  Here’s a remarkably on-point exchange:

One of the lawmakers asked her what Planned Parenthood’s position would be if a baby is born as a result of a botched abortion.

"We believe that any decision that’s made should be left up to the woman, her family and the physician," she said.

Whoops. Had the media been covering Gosnell’s trial, Ms. LaPolt Snow probably could have qualified her response a bit better.  And then there was this: 

When another lawmaker asks her specifically what Planned Parenthood does when such a scenario happens at its clinics, she said simply, "I do not have that information."

Another lawmaker made the point that the baby born alive would become a patient as well, not just the mother.

"That’s a very good question," Snow said. "I really don’t know how to answer that."

Watching the exchange before the Gosnell story broke, I chalked that up to a failure of imagination.  A dismal failure, to be sure, but if there aren’t any reported incidents of abortion doctors murdering and mutilating babies born alive, that’s about the end of the discussion.  But if there are such incidents, well, Ms. LaPolt Snow, we have some more questions for you. 

Ms. LaPolt Snow’s responses severely undercut the suggestion that we’ve already closed the loop on the relevant moral and policy questions. As her comments indicate, while we might expect better sterilization procedures and overall compliance with health codes in abortion clinics, the basic evil of what happened in Gosnell’s clinic is not terribly surprising given the principles implicated in abortion policy when that policy is not subjected to the rigors of serious and sustained public scrutiny, when those discussions are conducted with kid-gloves, and when they are just left to judges to decide as if these questions could be answered by lawyers alone. I take the Gosnell case as an example of the failure to trace a principle to its possible consequences. "In other countries,” Edmund Burke once wrote, “the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle."

Somewhere between then and now, we have thrown in with the mercurial cast.  We vote not when we have judged the badness of a principle and anticipated an evil.  In the case of gun control, we are specifically asked not to wait and judge, but to judge now, while we’re still overcome with grief about it—because we’re still overcome with grief about it. 

Abortion policy, of course, developed quite differently than gun control policy.  But it similarly developed without enough of an attempt to anticipate its evils.  I suspect the Gosnell case suggests a wrong principle lurking in our abortion policy.  While most of mainstream discussion on the topic is polite and civil, it’s nonetheless failing to expose that wrong principle.  Our discourse is not working.  How do we fix it?

In the latest Claremont Review of Books released this week, William Voegeli reviews Time magazine reporter Michael Grunwald’s The New New Deal: The Hidden Story of Change in the Obama Era.  Voegeli’s review is worth reading as usual, but I am excerpting this passage quoting Grunwald’s account of the sclerotic legacy of New Deal bureaucracy for its value as an admission against interest:

One of his book’s heroes is Claire Broido Johnson, an investment banker hired by Energy Secretary Steven Chu to run the department’s Office of Weatherization and Intergovernmental Programs. The Recovery Act allocated $5 billion to a three-year program to weatherize 600,000 low-income families’ homes through such prosaic enhancements as better windows, insulation, furnaces, and air conditioners. The effort was snake-bit from the start. Johnson took over the weatherization office-known informally as the “Turkey Farm” for the number of subpar civil servants sent there over the years when no other agency would take them—at a time when it had finished the program’s first year of operation by weatherizing not 200,000 but 30,252 homes. Johnson came into the job “like a hurricane hitting the building,” setting goals for every agency receiving money from the program, holding weekly calls to monitor progress, and creating a call center where staffers helped local officials navigate the elaborate procedures for getting and spending stimulus dollars.

It worked. “The program ultimately surpassed its goal of 600,000 homes three months early,” Grunwald reports. The success story convinced Mark Schmitt, former editor of the American Prospect, that with “one of the two best books ever written about government,” Grunwald has shown how the Obama Administration made “government more responsive, imaginative, tough on failure but supportive of promising ideas.”

But even one of Grunwald’s most inspiring stories has an equivocal moral. Predictably, Johnson “was not hailed at the Turkey Farm.”

Early on, when she asked all of the division’s staffers what they were accountable for, two responded: “You can’t make me accountable for anything.” One employee buried his nose in a newspaper whenever she approached. When she chastised another lifer for napping on the job, he filed a union grievance.

Increasingly frustrated, Johnson launched a secret “Operation Cupcake” to try to fire the worst laggards, but she never stood a chance against the cupcakes. They knew that political appointees come and go, but civil servants are forever. They call themselves “WeBe’s,” as in “We be here, you be gone.”

Eventually, those enemies got their boss in trouble with Energy’s inspector general when they reported that she circumvented cumbersome hiring procedures preventing the appointment of an urgently needed deputy. The investigation “ended Johnson’s career at the department,” and left her vowing never to work for the federal government again.

So, yes, 600,000 homes got weatherized in three years after it looked like it might take 20. But the official who made it happen be gone and is never coming back. Meanwhile, the turkeys who were making it not happen be there and are never going away. Johnson also left behind and intact the maze of regulations so conducive to getting nothing done, slowly and expensively, and so lethal to responsive, imaginative, and efficacious government. The extent to which renewed confidence in the activist state is justified by the attainments of prodigious high-achievers like Johnson, who overcome government dysfunction before being overcome by it, is highly debatable.

This seems like a good way to ease back into blogging after a long absence.  Planned Parenthood of Delaware faces “allegations of unsafe and unsanitary conditions” as witnesses report a failure to wear gloves, use of unsterilized instruments, and unclean surfaces.  This April 9 story ran on ABC’s local Action News program in Philadelphia.  What you probably haven’t seen on your local news stations, however, are the stories of “Infant beheadings. Severed baby feet in jars. A child screaming after it was delivered alive during an abortion procedure.”  In her USA Today piece today entitled “We’ve forgotten what belongs on Page One,” Kirsten Powers explains that “Since the murder trial of Pennsylvania abortion doctor Kermit Gosnell began March 18, there has been precious little coverage of the case that should be on every news show and front page.”

If ungloved hands and unsterilized instruments count as news, then certainly so should these macabre accounts:

NBC-10 Philadelphia reported that, Stephen Massof, a former Gosnell worker, "described how he snipped the spinal cords of babies, calling it, ‘literally a beheading. It is separating the brain from the body." One former worker, Adrienne Moton, testified that Gosnell taught her his "snipping" technique to use on infants born alive.

Massof, who, like other witnesses, has himself pleaded guilty to serious crimes, testified "It would rain fetuses. Fetuses and blood all over the place." Here is the headline the Associated Press put on a story about his testimony that he saw 100 babies born and then snipped: "Staffer describes chaos at PA abortion clinic."

"Chaos" isn’t really the story here. Butchering babies that were already born and were older than the state’s 24-week limit for abortions is the story. There is a reason the late Democratic senator Daniel Patrick Moynihan called this procedure infanticide.

Planned Parenthood recently claimed that the possibility of infants surviving late-term abortions was "highly unusual." The Gosnell case suggests otherwise.

There’s much worse compiled at HotAir.  And yet, Powers reports, “none of the news shows on the three major national television networks has mentioned the Gosnell trial in the last three months.”  Even during the original trial, The Washington Post did not publish original reporting, and The New York Times ran only one original story on the trial’s first day, says Powers.  That story appeared on page A-17.

The reason for the silence seems obvious:  it renders indefensible an issue that, for ideologues, must be defended.  I ask only this:  It is indefensible, isn’t it?  “On this,” Charles Krauthammer said today,

“I would think there would be unanimity in the country, and the reason that there is resistance, against either outlawing or heavily regulating it is because the pro-choice people imagine that any regulation, at any level, at any kind, is the beginning of the end of abortion rights. I think there is room for a national consensus on this.”

Right?

After watching the State of the Union address, Sen. Marco Rubio’s response on behalf of the GOP, reading some blogs and tweets and ruminating on all of it while doing the dishes, here are some of my take-aways. 

On the economy—the issue many were predicting to be forefront of the address—the president was vague and defensive.  He highlighted that consumers were now protected while the fact that Americans still aren’t consuming hung heavy in the air.  Same with the remark that we have “cleared away the rubble of crisis,” acknowledging recovery still eludes us.  He pleaded with lawmakers to make “basic decisions” about the budget, but the basics are precisely where we’ve been stuck.  We already know the sequester would be “harsh.”  Sen. Rubio at least reminded Americans the sequester was Obama’s idea. 

I was surprised early on when the president said that cutting Medicare and Social Security would be even worse than cutting education, that these entitlements for the elderly are more important than educating our youth.  The remark earned a standing ovation from his party.

Still plenty of “fair share” rhetoric.  As readers here know, that kind of talk bothers me quite a bit because I get the sense that, for the president, wealth disparity is a moral wrong in itself.  Were he to tie the idea to tax reform, he might get me on board.  As it was, the tax reform remarks seemed designed to portray his opponents as the only ones guilty of giving favors.  I found it interesting that his most impassioned attack against corporate loopholes received only tepid applause. 

The president announced we are suffering from a crisis of crises, suggesting they were being “manufactured” by Congress.  (As many will recall, it was the president’s own chief of staff four years ago who uttered the immortal line about never letting a good crisis go to waste.)  The president seemed to be referring to Republicans’ positions on spending cuts to address the growing debt and deficit.  Far from “manufacturing” a crisis, Republicans believe the debt and deficit is already a crisis, or at least one in the making that requires prompt and meaningful action.  Moreover, as the president made clear later on with his impassioned plea to address the crisis of gun violence (“they deserve a vote!”) and climate change (we’re “all in” on clean energy!), he’s not done governing via crisis as long as it’s the right kind of crisis. 

The president did promise we would not see “a single dime” added to the deficit, and that we would not get a “bigger” government on his watch, just a “smarter” one.  This was the most conciliatory line in the address concerning philosophy of government. 

Several references to new investments, like 3D printing.  I’m in favor of necessary infrastructure investments:  so long as our economy is going to grow (an existential assumption everyone is willing to make), then roads, water, waste disposal, and other basic infrastructure is a no-brainer.  But government-as-venture capitalist in things like 3D printing and high speed rail (“ask any CEO”? really?) are far beyond what I’m comfortable having government get involved with.  The president’s awkward joke, which fell flat (“I’ve seen all those ribbon cuttings”), speaks to how well these kinds of investments have worked so far. 

I was puzzled at the president’s plea to make more funds available so that more people could buy houses.  I’m not an economist, but isn’t that how the last housing bubble got started? 

Didn’t California try making preschool available for everyone, and wasn’t it a big boondoggle that didn’t work as hoped?  I’m sure the president is right that children who start school early do better in life.  I’m also willing to bet that’s as much or more to do with the fact they have parents who care enough about education to put them in preschool.  Putting that aside, I’d put this compromise to the president:  attach school choice to a preschool funding bill and you’ve got a deal. 

Totally agree about keeping college costs down.  I’m actually impressed the president proposed that, though I guess I should wait to see what kinds of programs he’s looking to defund. 

I’ll give the president this on his proposal to raise the minimum wage to $9 per hour: He’s committed to the “fairness” meme, even at the expense of opportunity.  The consensus seems to be that increasing the minimum wage increases unemployment.  And many of the people we wish to help—the people who make a living at minimum wage—don’t exist, as they typically stay at entry-level wages for only a short time.  Second household earners often work part-time, and part-time jobs are made even less available because of minimum-wage laws. 

I don’t know what the president has in mind when he says he wants to make voting “easier.”  I already worry about how ill-informed most voters are.  And how easy does voting have to be?  Perhaps I’m not allowed to pass judgment on this because I’m lucky enough to have the leisure time to engage in politics.  But here’s a reform I’d insist on in compromise:  Remove the role of secretaries of state and attorneys general in characterizing candidates and initiatives.  Just put the names of candidates without titles or backgrounds, and the numbers of initiatives.  Voters can read biographies of their candidates and the full text of proposed initiatives can be made available online, in public libraries, and in polling places.  If they don’t care enough to become minimally informed about their votes, they can self-select out.  As things stand, too many voters enter the polling place to place a single vote—for president, say—and wind up also voting for other candidates or issues based solely on the brief summaries supplied on the ballots.  And there is reason to suspect that secretaries of state and attorneys general skew those summaries for political reasons. 

And then we come to the dead children and Gabby Gifford who “deserve a vote” on gun control—apparently a legitimate crisis, in the president’s view.  I don’t have very strong views on background checks and most of the other proposals on offer, but the president’s demand for a vote was only a thinly veiled warning that a “no” vote would be tantamount to spitting on kids’ graves or something.  Also, no reference to Christopher Dorner, whose tour of terror puts a very different spin on the issue of guns and personal safety. 

I liked the president’s remarks near the end of the address about the need for and the meaning and obligation of fathers.  I also liked the remarks about the need for good citizenship, even though I suspect the president understands the “obligations” of citizenship differently than I do. 

Senator Marco Rubio’s response was strong, particularly in light of the fact that responding to the State of the Union is an unenviable job.  He was gracious but tough with the president, highlighting differences in governing philosophy, that the president is wrong to find so many solutions in government.  He has a remarkable personal story and shared it warmly and effectively, explaining he has every intention to protecting Medicare for people like his mom, and his dad before losing his battle with cancer.  He also effectively ties in the fact that he not only sympathizes with the middle class, he still lives in his middle class neighborhood, relied on federal student loans, and just recently finished paying them off.  He uses these examples to effectively demonstrate that the new conservatism means protecting the solutions government already provides and people rely on, and that continuing to ignore needed reforms for the sake of rolling out new “job-killing” regulations and programs risks those existing programs—not to mention diminishes opportunities for middle class Americans. 

Sen. Rubio also explains how his party has gotten a bad rap, such as when they are accused of “wanting dirty water and dirty air” when resisting complex regulations, or “wanting to leave the elderly and disabled to fend for themselves” when pushing entitlement reforms.  It was heartening to imagine people listening to this genuine, reasoned response from a likely person like Rubio. 

If I had one suggestion for Sen. Rubio, other than staying better hydrated, it would have been to link the president’s call for tax reform to his repeated insistence for “fairness.”  Sen. Rubio is a darling of the Tea Party, and the Tea Party has a solid track record on attacking crony capitalism and tax loopholes.  This would have given a tangible example to illustrate how Republicans are every bit as much in favor of fairness as the president claims to be. 

[Lay impressions on the GOP’s political messaging this week. More information about this series can be found here. Other posts in the series can be found here.]

Slow news week last week.  A relative (and rare) calm before the State of the Union tomorrow night. 

Hagel and Brennan

Republicans are weak on the confirmations of Hagel and Brennan.  Lindsey Graham on Face the Nation yesterday said he intends to somehow block a confirmation vote of Hagel until he gets more information on Benghazi.  I’m of two minds on this.  The time for outrage on this is passed.  The Benghazi attack occurred two months before a presidential election and the people decided to give the president a pass.  I do tend to think the president is “disengaged,” as Graham says.  But unless you have a broad swell of support at least among other Republicans, Graham is mostly just providing the president and Democrats evidence for their supposition that the GOP is fractured.  Which lends support to the argument that Graham is doing this for personal political reasons, to convince his constituents in his upcoming 2014 campaign that he’s conservative enough.

On the other hand, I wonder how much deference to nominees is appropriate.  When it comes to judicial nominations, for example, it’s been accepted that contested aggressive confirmation hearings are justified given that Supreme Court sessions have become, in effect, annual constitutional conventions.  Given the great power the Supreme Court has arrogated to itself in the past several decades, it’s understandable and even appropriate that the confirmation process—one of the only meaningful democratic checks on the Court—has grown some sharp teeth. 

The power and significance of the U.S. military also has swelled greatly in modern times.  Perhaps more resistance and skepticism is warranted in the confirmation process. 

Drones

John Eastman says the drones memo was improperly classified because it did not contain any tactical information.  The real reason it was held back may be because the administration is relying on many of the same grounds cited in the Bush memos, which then-Senator Obama criticized.

No matter; the public loves drones.

State of the Union

Republicans are bracing for one of the most partisan State of the Union addresses of this partisan president’s administration.  Obama is set to focus on the economy, and likely will employ his familiar device of using strawmen and hyperbole to demonize his opponents.  Last week, he told Democrats that Republicans’ position is that “the only way to replace it now is for us to cut Social Security, cut Medicare and not close a single loophole.”  Who is saying that?  Is there any elected Republican in Congress—or anywhere else—who says this? 

I’ll be gritting my way through the president’s address Tuesday night awaiting Marco Rubio’s response.  To say that Sen. Rubio is facing high expectations may be a gross understatement after last week: 

One of the memes last week was that the GOP doesn’t just need better messaging, it needs a new message.  From my perspective, this meme cannot survive without referencing leaders who badly fumble the GOP message, proving the point that the problems is in the messengers, not the message.  Rubio is far and away the most thoughtful and articulate conservative the party has seen in a very long time.  The juxtaposition of Rubio’s response to what is expected to be Obama’s most aggressive and progressive SOTU address will be a thing to behold. 

In a recent interview with James L. Buckley at Uncommon Knowledge, Peter Robinson posed the following question:

By the time I came along, the New Deal had been enacted.  But you came along beforehand.  Of course, you were a boy, but if you look back, can you, looking over the course of your life, can you sense changes— I guess what I’m asking is, did the expansion of government habituate us to an ever-expanding government, or was there some change, was there some loss of republican virtue, that made possible the expansion of government.  Which came first? 

The question tantalizes, but the answer necessarily disappoints.  The conservative narrative—the thumbnail version, anyway—wants to answer that question in the affirmative:  Yes! Big Government sapped our drive, our initiative, our republican virtue!  But as Buckley quickly observes in his response, it takes a careful examination of history to answer the question.  These kinds of big, tectonic shifts—both in the people’s expectations of government and of themselves—occur slowly over time in response to innumerable conditions.  So of course we do not have the same relationship with government, society, and the rest as the founding generation did.  Republican virtue may or may not be lost, but it is certainly changed, and we might begin by evaluating those changes—some good, some bad, some indifferent.  Certainly not all those changes are because of the size of government.  Indeed, it was the Great Depression, widely perceived to be a failing of an under-regulated economy, that triggered that growth.  And it was the industrial revolution beforehand, that began concentrating economic activity—and thus every other kind of activity—around cities and factories and banking.  Coming to an answer of when, precisely, something like “republican virtue” was lost is as elusive as answering whether the chicken came before the egg.

Still, the idea behind the question is important for conservatives because they believe the American experiment absolutely depends on republican virtue.  The presence of that virtue characterized the success of the ancient republics, and its absence characterized their decline.  “In the end, more than freedom, they wanted security,” wrote Edward Gibbon.  “They wanted a comfortable life, and they lost it all – security, comfort, and freedom. When the Athenians finally wanted not to give to society but for society to give to them, when the freedom they wished for most was freedom from responsibility then Athens ceased to be free and was never free again.” 

It was believed that republican virtue was alive again by the time of the Founding.  The people rededicated themselves to it during the Civil War.  But then, the narrative goes, sometime between then and now, it went missing or into hiding.  Much conservative scholarship concerns the history of ideas between Reconstruction and the New Deal, circling in on when and how, precisely, America arguably changed its mind about the founding philosophy (as conservatives understand it) and adopted a more relativistic, History-based worldview that finds the answer to so many questions of moral and civic duty in government and in powerful leaders.  My interest lies here as well. 

But what if these conservatives succeeded?  Would it matter?  That is, even if conservative thinkers succeeded in demonstrating that progressivism does indeed represent a new paradigm of thought—that it is not the American mind of the founders but something quite different—would it make a difference?  Do non-conservatives reject the premise that this republican virtue esteemed by conservatives existed, or that it had such salubrious effects as conservatives suppose? Do progressives believe they now have an answer to Gibbon?  In this, I am reminded of Michael Tomasky’s attempt in 2010, writing confidently but uncritically that

there is something deep within liberalism, from its earliest beginnings, that prevents it from degenerating into fascism, and that is its explicit recognition that the state must serve both common purposes and individual liberty. . . . [W]here that collective urge crosses the line into coercion, well, that is where liberals—I mean liberals who know something about liberalism—get off the train, and do their noncoercive best to derail it.

Or take Jonathan Chait’s rendition:  “For us [liberals], everything works on a case-by-case basis. Should government provide everybody’s education? Yes. Should government manufacture everybody’s blue jeans? No. And so on.”   As a candidate to replace the founding philosophy, the modern liberal thesis leaves something to be desired. 

You may disagree, however.  And that’s my question:  Do modern progressives much care whether their political philosophy can claim lineage to the founding or its conception of “republican virtue”?  Or is that link, though perhaps desirable politically, inconsequential to the legitimacy of the liberal/progressive project?