NYTimes.com
Op-Ed Columnist
Rabbit-Hole Economics
By PAUL KRUGMAN
Published: October 13, 2011
Reading the transcript of Tuesday’s Republican debate on the economy is, for anyone who has actually been following economic events these past few years, like falling down a rabbit hole. Suddenly, you find yourself in a fantasy world where nothing looks or behaves the way it does in real life.
And since economic policy has to deal with the world we live in, not the fantasy world of the G.O.P.’s imagination, the prospect that one of these people may well be our next president is, frankly, terrifying.
In the real world, recent events were a devastating refutation of the free-market orthodoxy that has ruled American politics these past three decades. Above all, the long crusade against financial regulation, the successful effort to unravel the prudential rules established after the Great Depression on the grounds that they were unnecessary, ended up demonstrating — at immense cost to the nation — that those rules were necessary, after all.
But down the rabbit hole, none of that happened. We didn’t find ourselves in a crisis because of runaway private lenders like Countrywide Financial. We didn’t find ourselves in a crisis because Wall Street pretended that slicing, dicing and rearranging bad loans could somehow create AAA assets — and private rating agencies played along. We didn’t find ourselves in a crisis because “shadow banks” like Lehman Brothers exploited gaps in financial regulation to create bank-type threats to the financial system without being subject to bank-type limits on risk-taking.
No, in the universe of the Republican Party we found ourselves in a crisis because Representative Barney Frank forced helpless bankers to lend money to the undeserving poor.
O.K., I’m exaggerating a bit — but not much. Mr. Frank’s name did come up repeatedly as a villain in the crisis, and not just in the context of the Dodd-Frank financial reform bill, which Republicans want to repeal. You have to marvel at his alleged influence given the fact that he’s a Democrat and the vast bulk of the bad loans now afflicting our economy were made while George W. Bush was president and Republicans controlled the House with an iron grip. But he’s their preferred villain all the same.
The demonization of Mr. Frank aside, it’s now obviously orthodoxy on the Republican side that government caused the whole problem. So what you need to know is that this orthodoxy has hardened even as the supposed evidence for government as a major villain in the crisis has been discredited. The fact is that government rules didn’t force banks to make bad loans, and that government-sponsored lenders, while they behaved badly in many ways, accounted for few of the truly high-risk loans that fueled the housing bubble.
But that’s history. What do the Republicans want to do now? In particular, what do they want to do about unemployment?
Well, they want to fire Ben Bernanke, the chairman of the Federal Reserve — not for doing too little, which is a case one can make, but for doing too much. So they’re obviously not proposing any job-creation action via monetary policy.
Incidentally, during Tuesday’s debate, Mitt Romney named Harvard’s N. Gregory Mankiw as one of his advisers. How many Republicans know that Mr. Mankiw at least used to advocate — correctly, in my view — deliberate inflation by the Fed to solve our economic woes?
So, no monetary relief. What else? Well, the Cheshire Cat-like Rick Perry — he seems to be fading out, bit by bit, until only the hair remains — claimed, implausibly, that he could create 1.2 million jobs in the energy sector. Mr. Romney, meanwhile, called for permanent tax cuts — basically, let’s replay the Bush years! And Herman Cain? Oh, never mind.
By the way, has anyone else noticed the disappearance of budget deficits as a major concern for Republicans once they start talking about tax cuts for corporations and the wealthy?
It’s all pretty funny. But it’s also, as I said, terrifying.
The Great Recession should have been a huge wake-up call. Nothing like this was supposed to be possible in the modern world. Everyone, and I mean everyone, should be engaged in serious soul-searching, asking how much of what he or she thought was true actually isn’t.
But the G.O.P. has responded to the crisis not by rethinking its dogma but by adopting an even cruder version of that dogma, becoming a caricature of itself. During the debate, the hosts played a clip of Ronald Reagan calling for increased revenue; today, no politician hoping to get anywhere in Reagan’s party would dare say such a thing.
It’s a terrible thing when an individual loses his or her grip on reality. But it’s much worse when the same thing happens to a whole political party, one that already has the power to block anything the president proposes — and which may soon control the whole government.
Friday, October 14, 2011
Originalism & the Constitution
Geoffrey R. StoneEdward H. Levi Distinguished Service Professor of Law at the University of Chicago
The Framers' Constitution
Posted: 9/12/11 07:42 PM ET
I co-authored this piece with Professor William Marshall of the North Carolina School of Law. It was also published online today by the American Constitution Society.
For the past 40 years, political conservatives have effectively framed the national debate over constitutional interpretation. According to the conservatives' narrative, their approach to constitutional interpretation adheres to the true meaning of the Constitution and to the Rule of Law, whereas "liberal" jurisprudence is concerned only with achieving specific desired outcomes, without regard to the text, history or meaning of the Constitution.
The gains that conservatives have achieved by characterizing the debate in this manner cannot be overstated. Because the public has generally accepted the conservative account, Republican presidents have been much more aggressive than their Democratic counterparts in appointing judges with strongly ideological inclinations, and constitutional doctrine has veered sharply to the right as conservative jurists have become ever bolder in their pursuit of politically conservative results. Meanwhile, at the grassroots level, a new strain of conservative constitutionalism has recently emerged that insists that even such traditional legislative measures as civil rights laws and social welfare programs are unconstitutional, reflecting an even more aggressive conception of conservative judicial ideology.
The conservative constitutional narrative is deeply unprincipled and patently wrong, both in its defense of conservative judicial ideology and in its attack on what conservatives deride as a result-oriented "liberal" jurisprudence. In fact, most of the decisions the conservatives deride are premised on sound principles of constitutional interpretation and on the Framers' own understanding of our Constitution and of the essential role of courts in our constitutional system. But although progressives actually hold the high ground in this debate, we have generally failed in public discourse either to unmask the realities of conservative judicial methodology or to explain the logic, legitimacy and coherence of our understanding of constitutional interpretation. Unless we take up this challenge, we will continue to lose in the courts, in nomination battles, in the legislatures, and at the polls. It is time for ACS and its members to take up this challenge.
In this essay, we set the record straight about conservative constitutional jurisprudence and set forth a principled approach to constitutional interpretation that reflects the fundamental values and aspirations of those who framed the American Constitution over the course of more than two centuries and strikes the proper balance between judicial restraint and judicial activism by focusing on the circumstances in which judicial review is necessary to preserve our constitutional liberties and limitations.
The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but to establish the foundational principles that would sustain and guide the nation into an always uncertain future.
The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: "freedom of speech," "due process of law," "free exercise of religion," "equal protection of the laws," "privileges and immunities of citizenship," "cruel and unusual punishment." The Constitution sets forth governmental powers in similarly general terms: Congress may regulate "commerce among the several states" and may enforce the Fourteenth Amendment "by appropriate legislation," the president will "take care that the laws be faithfully executed," the courts are authorized to decide "cases" and "controversies."
These phrases are not self-defining. The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, "we must never forget it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."
This understanding reflects an approach that is true to what we might call "The Framers' Constitution." It recognizes that the Constitution sets forth broad principles and that a central challenge of constitutional interpretation is to define and then give life and substance to those principles in an ever-changing society. The principles enshrined in the Constitution do not change over time. But the application of those principles must evolve as society changes and as experience informs our understanding.
American constitutional law has long followed the path set by Chief Justice Marshall. As technological means of surveillance became more sophisticated, for example, the meaning of "search" in the Fourth Amendment came to include invasions of privacy that do not involve a physical trespass. The provision granting Congress the power to maintain the nation's "land and naval Forces" was eventually seen as authorizing an air force. The guarantee of "equal protection of the laws" in the Fourteenth Amendment was understood in later decades as prohibiting discrimination not only against African-Americans but against women and gays and lesbians as well. "Commerce among the several states" came to be seen differently as the nation's economy became more complex and integrated across state lines, and the concept of "liberty" came to encompass not only freedom from physical restraint, but also freedom from undue government intrusion into such fundamental personal decisions as whether to bear or beget a child or how to raise and educate one's children.
But how should we give concrete meaning to the open-textured provisions of the Constitution? On the one hand, judges must have sufficient interpretative authority to ensure that constitutional rights and limitation endure over time. On the other hand, judges must not have such broad interpretative discretion that they can freely substitute their own personal, political, religious, social, and economics values for those of the People. The best solution, which is grounded in the vision of the Framers across the centuries, has a long and honorable tradition in American constitutional law. It has two essential elements. First, at the very core of The Framers' Constitution is the recognition that, in a self-governing society, courts must generally defer to the preferences of the majority. Although courts may always review governmental action to guard against arbitrariness or unreasonableness, the starting point must be a presumption of judicial restraint.
This is an essential tenet of any theory of principled constitutionalism.
Second, respect for The Framers' Constitution requires us to recognize that although the Framers thought majority rule to be the best system of government, they knew it to be imperfect. They understood that political majorities may be tempted to enact laws that entrench their own authority; that driven by fear, self-interest or short-sightedness, majorities may sometimes too quickly cast aside fundamental freedoms and critical structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.
The Framers intended courts to play a central role in addressing these concerns. When proponents of the original Constitution argued in 1790 that a bill of rights would be pointless because political majorities would run roughshod over its guarantees, Thomas Jefferson responded that this argument ignored "the legal check" that could be exercised by the judiciary. When James Madison faced similar concerns when he introduced the Bill of Rights in the first Congress, he maintained that "independent tribunals of justice will consider themselves . . . the guardians of those rights [and] will be naturally led to resist every encroachment" upon them. And in Federalist 78, Alexander Hamilton stated that constitutional protections and limitations could "be preserved in practice no other way than through the medium of courts of justice," which must "guard the constitution and the rights of individuals from the effects of those ill humours which...sometimes disseminate among the people."
This understanding of The Framers' Constitution found expression in the modern era in a series of Supreme Court opinions in the 1930s and 1940s. For example, in the Court's famous footnote 4 in Carolene Products, decided more than seventy years ago, the Court suggested that there are some circumstances in which there may be "narrower scope" for the usual "presumption of constitutionality." Specifically, the Court noted that "more exacting judicial scrutiny" may be appropriate when legislation "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation" and when laws disadvantage groups like "religious or racial minorities," because "prejudice" against such groups "tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect" us against injustice. Put simply, the Court recognized in Carolene Products that courts should not be so quick to defer to the outcomes of the political process when there is good reason to believe that that process itself may have been tainted.
Following this approach, the Supreme Court has properly departed from the presumption of judicial restraint when governing majorities disadvantage historically vulnerable groups (such as African-Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime); when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when majorities act in moments of high crisis. In such circumstances, it is necessary and proper for courts -- Madison's "independent tribunals of justice" -- to exercise a "more exacting judicial scrutiny" in order to protect our most fundamental freedoms and guard against those malfunctions of majority governance that most concerned the Framers. This, too, is an essential tenet of principled constitutionalism.
Invoking this understanding of judicial responsibility, the Supreme Court has issued a series of landmark decisions that faithfully interpret and apply The Framers' Constitution. These decisions ended de jure racial segregation, recognized the principle of "one person, one vote," forbade government suppression of political dissenters, established an effective right to counsel for persons accused of crime, struck down government discrimination against women, limited the authority of government to interfere with women's reproductive choices, and upheld the right of "enemy combatants" to due process of law, to cite just a very few examples. These decisions animate the most fundamental aspirations of our Constitution in circumstances in which judicial intervention is both proper and necessary.
For the past half-century, however, conservatives have argued that the Supreme Court went too far in the 1950s and '60s in its efforts to preserve the vitality of self-governance and protect the rights of those most in need of judicial attention. In the late 1960s, for example, conservatives like Richard Nixon and Strom Thurmond condemned what they derided as "judicial activism" and demanded the appointment of judges and justices committed to judicial restraint. But although judicial restraint in appropriate circumstances is essential to principled constitutionalism, its sweeping, reflexive invocation would abdicate a fundamental responsibility that the Framers themselves entrusted to the judiciary and would therefore undermine a critical element of the American constitutional system. It is no more appropriate for judges to refuse to enforce the Constitution against intolerant or overreaching majorities than it is for the president to refuse to defend the nation against enemy invasion.
Perhaps recognizing that a theory of unbounded judicial restraint is constitutionally irresponsible, political conservatives next came up with the modern theory of "originalism." First popularized by Robert Bork, Edwin Meese, and Antonin Scalia in the 1980s, their version of originalism presumes that courts should exercise judicial restraint unless the "original meaning" of the text clearly mandates an activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African-Americans the right to serve on juries, but not to invalidate laws that deny women that same right, because that was not the "original meaning" of the Equal Protection Clause.
Originalism, however, is fundamentally flawed. First, because those who enacted the broad foundational provisions of our Constitution often did not have any precise and agreed-upon understanding of the specific meaning of "freedom of speech" or "due process of law" or "regulate Commerce...among the several States" or "privileges or immunities" or "equal protection of the laws," it is difficult if not impossible to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence.
There is no evidence, for example, for the claims advanced by originalists that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment guaranteed corporations a constitutional right to spend unlimited amounts of money to dominate the election of public officials. Both of these claims, however, are central to today's conservative constitutional agenda.
The second problem with originalism is even more disqualifying, for it reveals the theory to be internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time. But this view erroneously attributes to the Framers a narrow-mindedness and short-sightedness that belies their true spirit. As Justice Louis Brandeis observed more than 80 years ago, the Framers believed "courage to be the secret of liberty." They were not timid men. Moreover, originalism ignores that those who framed our Constitution were steeped in a common-law tradition that presumed that just as reason, observation, and experience permit us to gain greater insight over time into questions of biology, physics, economics, and human nature, so too would they enable us to learn more over time about the content and meaning of the principles they enshrined in our Constitution. Indeed, the notion that any particular moment's understanding of the meaning of the Constitution's provisions should be locked into place and taken as constitutionally definitive would have seemed completely wrong-headed to the Framers, who held a much bolder and more confident understanding of their own achievements and aspirations.
For these reasons, the conservative doctrine of "originalism" has been largely discredited as a serious method of constitutional interpretation. This is not to say, however, that the views of the Framers are irrelevant. To the contrary, their values, concerns and purposes, as reflected in the text of the Constitution, must inform and guide the process of constitutional interpretation, but in a principled and realistic manner. They must be considered as the Framers themselves understood them -- as a set of general principles and aspirations, rather than as a collection of specific and short-sighted "rules." To be true to The Framers' Constitution, we must strive faithfully to implement the Framers' often far-sighted goals in an ever-changing society. That is central to any theory of principled constitutionalism.
Moreover, the values, concerns and purposes of the Framers must be understood in light of the inescapable reality that the American people have repeatedly amended the Constitution over the past two centuries to make it more inclusive and more progressive. By outlawing slavery in the 13th Amendment, guaranteeing due process, equality, and privileges and immunities in the 14th Amendment, and consistently expanding the franchise in the 15th, 19th, 24th, and 26th Amendments, the people of the United States have themselves made clear time and again that our Constitution is a fundamentally progressive document. This history must guide judges and justices in their interpretation and implementation of the Constitution.
Instead, we have now entered a new and even more troubling phase of conservative constitutional jurisprudence. It is best characterized as "conservative activism." Justices who readily dismiss constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively strike down affirmative action programs, restrictions on corporate political expenditures, gun control laws, regulations of commercial advertising, federal civil rights laws prohibiting age discrimination and domestic violence, and the laws of the state of Florida in the 2000 presidential election, have hijacked the power of judicial review. Conservative justices today exercise that authority in a highly selective and politicized manner that cannot credibly be explained or justified by any principled theory of constitutional interpretation. Indeed, despite all of the conservative rhetoric about originalism, "strict construction," "judicial restraint," "applying rather than making the law," and "calling balls and strikes," this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.
In the end, of course, constitutional interpretation is not a mechanical enterprise. It requires judges to exercise judgment. It calls upon them to consider text; history; precedent; values; changing social, economic, technological, and cultural conditions; and the practical realities of the times. Above all, it must be grounded in an understanding of the judiciary's unique strengths and weaknesses and in a proper appreciation of the most fundamental reasons for judicial review. Courts must have the authority to invalidate acts of the elected branches of government, not so they can pursue conservative or liberal agendas, but so they can serve as an essential check on the dangers of majoritarian dysfunction. This understanding of constitutional was central to much of the work of the Warren Court and it has long been central to the progressive understanding of constitutional law.
It is time now for a new era of principled constitutionalism. It is time to return to The Framers' Constitution.
This Blogger's Books from
War and Liberty: An American Dilemma: 1790 to the Present
by Geoffrey R. Stone
The Framers' Constitution
Posted: 9/12/11 07:42 PM ET
I co-authored this piece with Professor William Marshall of the North Carolina School of Law. It was also published online today by the American Constitution Society.
For the past 40 years, political conservatives have effectively framed the national debate over constitutional interpretation. According to the conservatives' narrative, their approach to constitutional interpretation adheres to the true meaning of the Constitution and to the Rule of Law, whereas "liberal" jurisprudence is concerned only with achieving specific desired outcomes, without regard to the text, history or meaning of the Constitution.
The gains that conservatives have achieved by characterizing the debate in this manner cannot be overstated. Because the public has generally accepted the conservative account, Republican presidents have been much more aggressive than their Democratic counterparts in appointing judges with strongly ideological inclinations, and constitutional doctrine has veered sharply to the right as conservative jurists have become ever bolder in their pursuit of politically conservative results. Meanwhile, at the grassroots level, a new strain of conservative constitutionalism has recently emerged that insists that even such traditional legislative measures as civil rights laws and social welfare programs are unconstitutional, reflecting an even more aggressive conception of conservative judicial ideology.
The conservative constitutional narrative is deeply unprincipled and patently wrong, both in its defense of conservative judicial ideology and in its attack on what conservatives deride as a result-oriented "liberal" jurisprudence. In fact, most of the decisions the conservatives deride are premised on sound principles of constitutional interpretation and on the Framers' own understanding of our Constitution and of the essential role of courts in our constitutional system. But although progressives actually hold the high ground in this debate, we have generally failed in public discourse either to unmask the realities of conservative judicial methodology or to explain the logic, legitimacy and coherence of our understanding of constitutional interpretation. Unless we take up this challenge, we will continue to lose in the courts, in nomination battles, in the legislatures, and at the polls. It is time for ACS and its members to take up this challenge.
In this essay, we set the record straight about conservative constitutional jurisprudence and set forth a principled approach to constitutional interpretation that reflects the fundamental values and aspirations of those who framed the American Constitution over the course of more than two centuries and strikes the proper balance between judicial restraint and judicial activism by focusing on the circumstances in which judicial review is necessary to preserve our constitutional liberties and limitations.
The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but to establish the foundational principles that would sustain and guide the nation into an always uncertain future.
The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: "freedom of speech," "due process of law," "free exercise of religion," "equal protection of the laws," "privileges and immunities of citizenship," "cruel and unusual punishment." The Constitution sets forth governmental powers in similarly general terms: Congress may regulate "commerce among the several states" and may enforce the Fourteenth Amendment "by appropriate legislation," the president will "take care that the laws be faithfully executed," the courts are authorized to decide "cases" and "controversies."
These phrases are not self-defining. The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, "we must never forget it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."
This understanding reflects an approach that is true to what we might call "The Framers' Constitution." It recognizes that the Constitution sets forth broad principles and that a central challenge of constitutional interpretation is to define and then give life and substance to those principles in an ever-changing society. The principles enshrined in the Constitution do not change over time. But the application of those principles must evolve as society changes and as experience informs our understanding.
American constitutional law has long followed the path set by Chief Justice Marshall. As technological means of surveillance became more sophisticated, for example, the meaning of "search" in the Fourth Amendment came to include invasions of privacy that do not involve a physical trespass. The provision granting Congress the power to maintain the nation's "land and naval Forces" was eventually seen as authorizing an air force. The guarantee of "equal protection of the laws" in the Fourteenth Amendment was understood in later decades as prohibiting discrimination not only against African-Americans but against women and gays and lesbians as well. "Commerce among the several states" came to be seen differently as the nation's economy became more complex and integrated across state lines, and the concept of "liberty" came to encompass not only freedom from physical restraint, but also freedom from undue government intrusion into such fundamental personal decisions as whether to bear or beget a child or how to raise and educate one's children.
But how should we give concrete meaning to the open-textured provisions of the Constitution? On the one hand, judges must have sufficient interpretative authority to ensure that constitutional rights and limitation endure over time. On the other hand, judges must not have such broad interpretative discretion that they can freely substitute their own personal, political, religious, social, and economics values for those of the People. The best solution, which is grounded in the vision of the Framers across the centuries, has a long and honorable tradition in American constitutional law. It has two essential elements. First, at the very core of The Framers' Constitution is the recognition that, in a self-governing society, courts must generally defer to the preferences of the majority. Although courts may always review governmental action to guard against arbitrariness or unreasonableness, the starting point must be a presumption of judicial restraint.
This is an essential tenet of any theory of principled constitutionalism.
Second, respect for The Framers' Constitution requires us to recognize that although the Framers thought majority rule to be the best system of government, they knew it to be imperfect. They understood that political majorities may be tempted to enact laws that entrench their own authority; that driven by fear, self-interest or short-sightedness, majorities may sometimes too quickly cast aside fundamental freedoms and critical structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.
The Framers intended courts to play a central role in addressing these concerns. When proponents of the original Constitution argued in 1790 that a bill of rights would be pointless because political majorities would run roughshod over its guarantees, Thomas Jefferson responded that this argument ignored "the legal check" that could be exercised by the judiciary. When James Madison faced similar concerns when he introduced the Bill of Rights in the first Congress, he maintained that "independent tribunals of justice will consider themselves . . . the guardians of those rights [and] will be naturally led to resist every encroachment" upon them. And in Federalist 78, Alexander Hamilton stated that constitutional protections and limitations could "be preserved in practice no other way than through the medium of courts of justice," which must "guard the constitution and the rights of individuals from the effects of those ill humours which...sometimes disseminate among the people."
This understanding of The Framers' Constitution found expression in the modern era in a series of Supreme Court opinions in the 1930s and 1940s. For example, in the Court's famous footnote 4 in Carolene Products, decided more than seventy years ago, the Court suggested that there are some circumstances in which there may be "narrower scope" for the usual "presumption of constitutionality." Specifically, the Court noted that "more exacting judicial scrutiny" may be appropriate when legislation "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation" and when laws disadvantage groups like "religious or racial minorities," because "prejudice" against such groups "tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect" us against injustice. Put simply, the Court recognized in Carolene Products that courts should not be so quick to defer to the outcomes of the political process when there is good reason to believe that that process itself may have been tainted.
Following this approach, the Supreme Court has properly departed from the presumption of judicial restraint when governing majorities disadvantage historically vulnerable groups (such as African-Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime); when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when majorities act in moments of high crisis. In such circumstances, it is necessary and proper for courts -- Madison's "independent tribunals of justice" -- to exercise a "more exacting judicial scrutiny" in order to protect our most fundamental freedoms and guard against those malfunctions of majority governance that most concerned the Framers. This, too, is an essential tenet of principled constitutionalism.
Invoking this understanding of judicial responsibility, the Supreme Court has issued a series of landmark decisions that faithfully interpret and apply The Framers' Constitution. These decisions ended de jure racial segregation, recognized the principle of "one person, one vote," forbade government suppression of political dissenters, established an effective right to counsel for persons accused of crime, struck down government discrimination against women, limited the authority of government to interfere with women's reproductive choices, and upheld the right of "enemy combatants" to due process of law, to cite just a very few examples. These decisions animate the most fundamental aspirations of our Constitution in circumstances in which judicial intervention is both proper and necessary.
For the past half-century, however, conservatives have argued that the Supreme Court went too far in the 1950s and '60s in its efforts to preserve the vitality of self-governance and protect the rights of those most in need of judicial attention. In the late 1960s, for example, conservatives like Richard Nixon and Strom Thurmond condemned what they derided as "judicial activism" and demanded the appointment of judges and justices committed to judicial restraint. But although judicial restraint in appropriate circumstances is essential to principled constitutionalism, its sweeping, reflexive invocation would abdicate a fundamental responsibility that the Framers themselves entrusted to the judiciary and would therefore undermine a critical element of the American constitutional system. It is no more appropriate for judges to refuse to enforce the Constitution against intolerant or overreaching majorities than it is for the president to refuse to defend the nation against enemy invasion.
Perhaps recognizing that a theory of unbounded judicial restraint is constitutionally irresponsible, political conservatives next came up with the modern theory of "originalism." First popularized by Robert Bork, Edwin Meese, and Antonin Scalia in the 1980s, their version of originalism presumes that courts should exercise judicial restraint unless the "original meaning" of the text clearly mandates an activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African-Americans the right to serve on juries, but not to invalidate laws that deny women that same right, because that was not the "original meaning" of the Equal Protection Clause.
Originalism, however, is fundamentally flawed. First, because those who enacted the broad foundational provisions of our Constitution often did not have any precise and agreed-upon understanding of the specific meaning of "freedom of speech" or "due process of law" or "regulate Commerce...among the several States" or "privileges or immunities" or "equal protection of the laws," it is difficult if not impossible to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence.
There is no evidence, for example, for the claims advanced by originalists that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment guaranteed corporations a constitutional right to spend unlimited amounts of money to dominate the election of public officials. Both of these claims, however, are central to today's conservative constitutional agenda.
The second problem with originalism is even more disqualifying, for it reveals the theory to be internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time. But this view erroneously attributes to the Framers a narrow-mindedness and short-sightedness that belies their true spirit. As Justice Louis Brandeis observed more than 80 years ago, the Framers believed "courage to be the secret of liberty." They were not timid men. Moreover, originalism ignores that those who framed our Constitution were steeped in a common-law tradition that presumed that just as reason, observation, and experience permit us to gain greater insight over time into questions of biology, physics, economics, and human nature, so too would they enable us to learn more over time about the content and meaning of the principles they enshrined in our Constitution. Indeed, the notion that any particular moment's understanding of the meaning of the Constitution's provisions should be locked into place and taken as constitutionally definitive would have seemed completely wrong-headed to the Framers, who held a much bolder and more confident understanding of their own achievements and aspirations.
For these reasons, the conservative doctrine of "originalism" has been largely discredited as a serious method of constitutional interpretation. This is not to say, however, that the views of the Framers are irrelevant. To the contrary, their values, concerns and purposes, as reflected in the text of the Constitution, must inform and guide the process of constitutional interpretation, but in a principled and realistic manner. They must be considered as the Framers themselves understood them -- as a set of general principles and aspirations, rather than as a collection of specific and short-sighted "rules." To be true to The Framers' Constitution, we must strive faithfully to implement the Framers' often far-sighted goals in an ever-changing society. That is central to any theory of principled constitutionalism.
Moreover, the values, concerns and purposes of the Framers must be understood in light of the inescapable reality that the American people have repeatedly amended the Constitution over the past two centuries to make it more inclusive and more progressive. By outlawing slavery in the 13th Amendment, guaranteeing due process, equality, and privileges and immunities in the 14th Amendment, and consistently expanding the franchise in the 15th, 19th, 24th, and 26th Amendments, the people of the United States have themselves made clear time and again that our Constitution is a fundamentally progressive document. This history must guide judges and justices in their interpretation and implementation of the Constitution.
Instead, we have now entered a new and even more troubling phase of conservative constitutional jurisprudence. It is best characterized as "conservative activism." Justices who readily dismiss constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively strike down affirmative action programs, restrictions on corporate political expenditures, gun control laws, regulations of commercial advertising, federal civil rights laws prohibiting age discrimination and domestic violence, and the laws of the state of Florida in the 2000 presidential election, have hijacked the power of judicial review. Conservative justices today exercise that authority in a highly selective and politicized manner that cannot credibly be explained or justified by any principled theory of constitutional interpretation. Indeed, despite all of the conservative rhetoric about originalism, "strict construction," "judicial restraint," "applying rather than making the law," and "calling balls and strikes," this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.
In the end, of course, constitutional interpretation is not a mechanical enterprise. It requires judges to exercise judgment. It calls upon them to consider text; history; precedent; values; changing social, economic, technological, and cultural conditions; and the practical realities of the times. Above all, it must be grounded in an understanding of the judiciary's unique strengths and weaknesses and in a proper appreciation of the most fundamental reasons for judicial review. Courts must have the authority to invalidate acts of the elected branches of government, not so they can pursue conservative or liberal agendas, but so they can serve as an essential check on the dangers of majoritarian dysfunction. This understanding of constitutional was central to much of the work of the Warren Court and it has long been central to the progressive understanding of constitutional law.
It is time now for a new era of principled constitutionalism. It is time to return to The Framers' Constitution.
This Blogger's Books from
War and Liberty: An American Dilemma: 1790 to the Present
by Geoffrey R. Stone
When Ideology Takes the Place of Rational Thought
Robert Reich/Chancellor's Professor of Public Policy, University of California at Berkeley
The Triumph of Dogma, and a Sad Goodbye to David Frum
Posted: 10/14/11 08:23 AM ET
Every other Wednesday evening for the past few years I've been offering commentary on a spritely show on public radio called Marketplace. On alternative Wednesdays David Frum, a former speechwriter for George W. Bush, has been airing his views.
This past Wednesday, Frum called it quits. He explained to the show's host, Kai Risdal, that he could no longer represent Republican views.
I think that there's a kind of expectation that when you do it that you represent the broad point of view of your half of the political spectrum. And although I consider myself a conservative and a Republican, and I think that the right-hand side of the spectrum has the better answers for the long-term growth of economy -- low taxes, restrained government, less regulation -- it's pretty clear that facing the immediate crisis -- very intense crisis -- I'm just not representing the view of most people who call themselves Republicans and conservatives these days.... And it's a service to the radio audience if they want to hear people explaining effectively why one of the two great parties takes the view that it does -- it needs to have somebody who agrees with that great party.
I respect David's decision but I disagree with his understanding of his job on Marketplace. And I find his decision to leave a sad commentary (no pun intended) on what's happening to public discourse in America.
Why exactly was it necessary for David Frum to "represent" the views of conservative Republicans?
I don't feel any obligation to represent liberal Democrats. Over the years I've argued, for example, in favor of getting rid of the corporate income tax, creating school vouchers inversely related to family incomes, and extending free-trade agreements -- positions not exactly favored by liberal Democrats.
The American public doesn't want or need to hear "representatives" from the so-called right or left. It wants insight into what's best for America.
Yet over and over again -- on the radio, on TV, in print, in the blogosphere, and all over Washington -- political ideology is substituting for thought.
Politicians take oaths and sign pledges. Special-interest groups abide by litmus tests and ideological labels. The media is either assertively liberal or conservative. Pundits are either on the left or the right.
Meanwhile, the Republican Party has become so extreme that it's more and more difficult for anyone to rationally "represent" its views. As Frum put in in a post on his website, FrumForum, "Under the pressure of the current crisis -- intoxicated by anti-Obama feelings and incited by talk radio and Fox -- Republicans have staked out an extreme position on the role of government."
What if conservative Republicans believe the sun revolves around the earth? Would someone in David Frum's position who disagrees feel compelled to stop offering "conservative" commentaries about the celestial bodies? And would a major media outlet then be obliged to find a replacement who agrees with conservative dogma? (This isn't such a far-fetched example when you consider what leading Republicans say about evolution or climate change.)
David's particular break with Republicans has come over what to do about the continuing awful economy. Here's what he told Kai Risdal:
This is not a moment for government to be cutting back. ... Right now we're watching state governments try to balance all of their budgets at the same time in the middle of this crisis. We've seen half a million public sector jobs disappear. Now, if these were good times, I would applaud that. We need to see a thinner public sector -- especially at the state and local level. But we're seeing what happens when you do that as an anti-recession measure and you make the recession worse. And even though we're in a technical recovery, incomes and employment -- all of that remains lagging for people -- I think that we've rediscovered in this crisis something that I think we all knew. Which is, there's a reason why the people of the 1930s built some kind of minimum guarantee -- unemployment insurance, health care coverage and things like that. And it's not because they wanted to be nice. It's because in a crisis when people lose their jobs, if there is no social safety net they loose 100 percent of their purchasing power.
It so happens the vast majority of economists and economic policy experts agree with David on this - even though you wouldn't know it if you watched or listened to broadcast debates between a so-called "liberal" and "conservative" economists.
No wonder Americans are so confused.
David Frum's voice will be sorely missed. Yet I understand his dilemma. At the start of his interview on "Marketplace" explaining his decision to leave the program, he was introduced this way:
David Frum has been a regular commentator for this program for years, offering the voice of the political right against Robert Reich and the views of the political left.
That introduction illustrates the problem.
The Triumph of Dogma, and a Sad Goodbye to David Frum
Posted: 10/14/11 08:23 AM ET
Every other Wednesday evening for the past few years I've been offering commentary on a spritely show on public radio called Marketplace. On alternative Wednesdays David Frum, a former speechwriter for George W. Bush, has been airing his views.
This past Wednesday, Frum called it quits. He explained to the show's host, Kai Risdal, that he could no longer represent Republican views.
I think that there's a kind of expectation that when you do it that you represent the broad point of view of your half of the political spectrum. And although I consider myself a conservative and a Republican, and I think that the right-hand side of the spectrum has the better answers for the long-term growth of economy -- low taxes, restrained government, less regulation -- it's pretty clear that facing the immediate crisis -- very intense crisis -- I'm just not representing the view of most people who call themselves Republicans and conservatives these days.... And it's a service to the radio audience if they want to hear people explaining effectively why one of the two great parties takes the view that it does -- it needs to have somebody who agrees with that great party.
I respect David's decision but I disagree with his understanding of his job on Marketplace. And I find his decision to leave a sad commentary (no pun intended) on what's happening to public discourse in America.
Why exactly was it necessary for David Frum to "represent" the views of conservative Republicans?
I don't feel any obligation to represent liberal Democrats. Over the years I've argued, for example, in favor of getting rid of the corporate income tax, creating school vouchers inversely related to family incomes, and extending free-trade agreements -- positions not exactly favored by liberal Democrats.
The American public doesn't want or need to hear "representatives" from the so-called right or left. It wants insight into what's best for America.
Yet over and over again -- on the radio, on TV, in print, in the blogosphere, and all over Washington -- political ideology is substituting for thought.
Politicians take oaths and sign pledges. Special-interest groups abide by litmus tests and ideological labels. The media is either assertively liberal or conservative. Pundits are either on the left or the right.
Meanwhile, the Republican Party has become so extreme that it's more and more difficult for anyone to rationally "represent" its views. As Frum put in in a post on his website, FrumForum, "Under the pressure of the current crisis -- intoxicated by anti-Obama feelings and incited by talk radio and Fox -- Republicans have staked out an extreme position on the role of government."
What if conservative Republicans believe the sun revolves around the earth? Would someone in David Frum's position who disagrees feel compelled to stop offering "conservative" commentaries about the celestial bodies? And would a major media outlet then be obliged to find a replacement who agrees with conservative dogma? (This isn't such a far-fetched example when you consider what leading Republicans say about evolution or climate change.)
David's particular break with Republicans has come over what to do about the continuing awful economy. Here's what he told Kai Risdal:
This is not a moment for government to be cutting back. ... Right now we're watching state governments try to balance all of their budgets at the same time in the middle of this crisis. We've seen half a million public sector jobs disappear. Now, if these were good times, I would applaud that. We need to see a thinner public sector -- especially at the state and local level. But we're seeing what happens when you do that as an anti-recession measure and you make the recession worse. And even though we're in a technical recovery, incomes and employment -- all of that remains lagging for people -- I think that we've rediscovered in this crisis something that I think we all knew. Which is, there's a reason why the people of the 1930s built some kind of minimum guarantee -- unemployment insurance, health care coverage and things like that. And it's not because they wanted to be nice. It's because in a crisis when people lose their jobs, if there is no social safety net they loose 100 percent of their purchasing power.
It so happens the vast majority of economists and economic policy experts agree with David on this - even though you wouldn't know it if you watched or listened to broadcast debates between a so-called "liberal" and "conservative" economists.
No wonder Americans are so confused.
David Frum's voice will be sorely missed. Yet I understand his dilemma. At the start of his interview on "Marketplace" explaining his decision to leave the program, he was introduced this way:
David Frum has been a regular commentator for this program for years, offering the voice of the political right against Robert Reich and the views of the political left.
That introduction illustrates the problem.
Bumper Cars
Life is a lot like a game of bumper cars like you see at an amusement park. We run around each day as in a bumper car, bumping into one another, bouncing off with a jolt, bumping into others, accomplishing very little, until they turn the power off. Then we're back at it the next day. The presidential race is certainly like a game of bumper cars. 9-9-9 reminds one contestant of 6-6-6. Now THAT's heavy stuff. Shudder. I guess it's time for me to get back into MY bumper car for the day.
Thursday, October 13, 2011
The Gift of Glib
BY Gail Collins
New York Times
12 October 2011
Right now you’re probably asking yourself, how did Rick Perry do in the big Republican debate in New Hampshire this week?
He did great! It turns out that Governor Perry has a big energy plan, known as “The Plan I’m Going to Be Laying Out.” When he does, it’s going to be the answer to almost everything. We know that because no matter what Perry was asked, he talked about the plan. Which will involve “the American entrepreneurship that’s out there.” And a whole lot more. When he’s ready to tell you.
For the rest of the time, Perry pretty much sat there like a large boulder with good hair, while the remaining members of the gang attacked Herman Cain, the former fast-food chain president turned Republican front-runner, about his economic plan.
This is what we’ve come to. A presidential debate about the 9-9-9 plan.
9-9-9 is the sine qua non of the Cain candidacy. It would scrap the tax code and give us 9 percent corporate, income and national sales taxes. He mentions it every 10seconds. (Opening statement, he got it in by 5.)
I have never heard anybody discussing the 9-9-9 plan in the real world, but obviously I hang out in the wrong places. The organizers and the candidates felt the need to really get into this, and, as a result, Tuesday night in New Hampshire will go down in history as the 9-9-9 plan debate. (Here is how presidential primary debates go down in history. The tapes are stored in a moisture-proof vault in a civil defense cave in Indiana. If the world as we know it should come to an end, the surviving members of our species will be able to relive these deeply American contests and pass their knowledge on to their children. Soon, they will go forth and repopulate a world in which all the boys sit around looking smug like Newt Gingrich and all the girls sound like Michele Bachmann. That is what they mean by “the living will envy the dead.”)
Among the elite cadre of Americans who have been thinking about 9-9-9, a good number have determined that it won’t raise enough revenue. “The problem with that analysis is that it is incorrect,” announced Cain firmly. I do admire the way he does this. If I could convey that tone, I would win every argument in my family just by saying “The problem with that analysis is that it is incorrect.” And there would never again be a discussion of renting a limo for a family viewing of all the Cincinnati Christmas lights.
Also, Michele Bachmann pointed out that 999 turned upside down is 666, which would make Cain’s tax policy the mark of the devil. Cain seemed to find that amusing, but he looked a little peeved when Jon Huntsman suggested 999 might be the price of a box of pizza.
That, people, was the sum and substance of the wit and humor of the New Hampshire Republican debate. Jon Huntsman also tried to make a joke about gas, but we are not going there.
Cain, in an attempt to pull down his competition, asked if Romney could name all 59 points in his 160-page economic plan.
Now I strongly suspect that Mitt could name all 59 points. I bet he repeats them at night to put himself to sleep. (“lower marginal tax rates ... more free trade agreements ... mmmmzzzzzzz.”) But he didn’t fall into that trap. He whipped out the seven pillars of Romneyism, which support the 59 points and can, therefore, be packed into one 30-second response. If you ignore Charlie Rose yelling in the background.
The guy has pillars for his points. No wonder he’s winning.
There were other high points — Gingrich accused Romney of starting class warfare by advocating an end to the capital gains tax only for investors making under $200,000 a year. He also said Barney Frank and Chris Dodd should be thrown in jail for their bill to reform Wall Street financial practices. Herman Cain said Alan Greenspan was the best Fed chairman in recent history. Michele Bachmann gave the fact-checkers another great night of error-correcting. It was the usual good time for all, except you do kind of wonder what the heck gives this particular crowd of people the right to be the nation’s official presidential contenders. What do they have in common? Intelligence? Appropriate experience? A large base of followers? Not so much.
What have they got? They’ve all got glib.
Except one. It’s enough to make you feel sorry for Rick Perry. If he wasn’t Rick Perry.
As things stand, the Perry camp is apparently planning to keep their guy in the background during debates and hit Romney over the head with mean commercials. That shouldn’t be too hard. Maybe they’ll include the day Mitt drove to Canada with the family dog on the car roof.
New York Times
12 October 2011
Right now you’re probably asking yourself, how did Rick Perry do in the big Republican debate in New Hampshire this week?
He did great! It turns out that Governor Perry has a big energy plan, known as “The Plan I’m Going to Be Laying Out.” When he does, it’s going to be the answer to almost everything. We know that because no matter what Perry was asked, he talked about the plan. Which will involve “the American entrepreneurship that’s out there.” And a whole lot more. When he’s ready to tell you.
For the rest of the time, Perry pretty much sat there like a large boulder with good hair, while the remaining members of the gang attacked Herman Cain, the former fast-food chain president turned Republican front-runner, about his economic plan.
This is what we’ve come to. A presidential debate about the 9-9-9 plan.
9-9-9 is the sine qua non of the Cain candidacy. It would scrap the tax code and give us 9 percent corporate, income and national sales taxes. He mentions it every 10seconds. (Opening statement, he got it in by 5.)
I have never heard anybody discussing the 9-9-9 plan in the real world, but obviously I hang out in the wrong places. The organizers and the candidates felt the need to really get into this, and, as a result, Tuesday night in New Hampshire will go down in history as the 9-9-9 plan debate. (Here is how presidential primary debates go down in history. The tapes are stored in a moisture-proof vault in a civil defense cave in Indiana. If the world as we know it should come to an end, the surviving members of our species will be able to relive these deeply American contests and pass their knowledge on to their children. Soon, they will go forth and repopulate a world in which all the boys sit around looking smug like Newt Gingrich and all the girls sound like Michele Bachmann. That is what they mean by “the living will envy the dead.”)
Among the elite cadre of Americans who have been thinking about 9-9-9, a good number have determined that it won’t raise enough revenue. “The problem with that analysis is that it is incorrect,” announced Cain firmly. I do admire the way he does this. If I could convey that tone, I would win every argument in my family just by saying “The problem with that analysis is that it is incorrect.” And there would never again be a discussion of renting a limo for a family viewing of all the Cincinnati Christmas lights.
Also, Michele Bachmann pointed out that 999 turned upside down is 666, which would make Cain’s tax policy the mark of the devil. Cain seemed to find that amusing, but he looked a little peeved when Jon Huntsman suggested 999 might be the price of a box of pizza.
That, people, was the sum and substance of the wit and humor of the New Hampshire Republican debate. Jon Huntsman also tried to make a joke about gas, but we are not going there.
Cain, in an attempt to pull down his competition, asked if Romney could name all 59 points in his 160-page economic plan.
Now I strongly suspect that Mitt could name all 59 points. I bet he repeats them at night to put himself to sleep. (“lower marginal tax rates ... more free trade agreements ... mmmmzzzzzzz.”) But he didn’t fall into that trap. He whipped out the seven pillars of Romneyism, which support the 59 points and can, therefore, be packed into one 30-second response. If you ignore Charlie Rose yelling in the background.
The guy has pillars for his points. No wonder he’s winning.
There were other high points — Gingrich accused Romney of starting class warfare by advocating an end to the capital gains tax only for investors making under $200,000 a year. He also said Barney Frank and Chris Dodd should be thrown in jail for their bill to reform Wall Street financial practices. Herman Cain said Alan Greenspan was the best Fed chairman in recent history. Michele Bachmann gave the fact-checkers another great night of error-correcting. It was the usual good time for all, except you do kind of wonder what the heck gives this particular crowd of people the right to be the nation’s official presidential contenders. What do they have in common? Intelligence? Appropriate experience? A large base of followers? Not so much.
What have they got? They’ve all got glib.
Except one. It’s enough to make you feel sorry for Rick Perry. If he wasn’t Rick Perry.
As things stand, the Perry camp is apparently planning to keep their guy in the background during debates and hit Romney over the head with mean commercials. That shouldn’t be too hard. Maybe they’ll include the day Mitt drove to Canada with the family dog on the car roof.
Sunday, October 9, 2011
Dismissing George Will
How George Will Misunderstands Both Elizabeth Warren and Liberalism
William Galston
October 8, 2011 | 12 George Will and I have something in common: We were both trained in the close reading of political texts. Will recently applied his interpretive skills to a statement by Elizabeth Warren, who is running for the Democratic senatorial nomination in Massachusetts. Here is what Warren said:
There is nobody in this country who got rich on his own. Nobody. You built a factory out there—good for you. But I want to be clear. You moved your goods to market on the roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police forces and fire forces that the rest of us paid for. … You built a factory and it turned into something terrific or a great idea—God bless, keep a big hunk of it. But part of the underlying social contract is [that] you take a hunk of that and pay forward for the next kid who comes along.
After applying to Warren’s words William F. Buckley’s description of John Kenneth Galbraith—a pyromaniac in a field of straw men, refuting propositions no one asserts—Will moves to the gravamen of his argument: Warren’s vision entails a collectivist political agenda. He tartly and uncharitably described that agenda as follows:
[Its] premise is that individual is a chimera, that any individual’s achievements should be considered entirely derivative from society, so that the achievements need not be treated as belonging to the individual. Society is entitled to socialize—i.e., conscript—whatever portion it considers its share. It may, as an optional act of grace, allow the individual the remainder of what is misleadingly called the individual’s possession.
I have never met Warren. For all I know she may privately embrace the premise Will sketches. But even a cursory inspection of her public words reveals that she is saying nothing of the sort. Rather, she is making a straightforward argument. Without the enabling framework that only government can create, individuals cannot securely enjoy the fruits of their endeavors. Every return on investment, then, is actually a return on two sources of investment, one reflecting individual choice, the other public decisions. Taxation is not theft; nor is it, as the late philosopher Robert Nozick once put it, “on a par with forced labor.” Rather, it reflects the return on the public investment to which nearly everyone contributes. It does not rest on the claim that all resources are collective and that individuals receive what is theirs as an act of grace, but rather on the more modest claim that we all owe something in return for the collective goods without which our individual striving cannot succeed.
And Warren is saying something else as well—that (to quote a thinker with whom Will has more than a passing acquaintance), “Society is indeed a contract … a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.” Warren’s homely phrase, “pay forward,” captures the moral bond that connects this generation with the next. If we don’t adequately provide for their future, we are breaking that bond. A decent political community has the right—indeed the obligation—to honor that bond—if necessary, by compelling individuals who refuse to look beyond their own immediate concerns to contribute their share to the common future.
To be sure, these general arguments don’t come close to settling the question of who should pay how much in taxes. That’s what elections and political contestation are about. But they do establish a sturdy foundation for the idea that individual choice does not create all our obligations and there is nothing in principle objectionable when society presents its bill to each of us. I hope that is one of the straw men that Will (unlike some of his less tutored conservative brethren) never intended to deny.
Not content to accuse Warren of collectivism, he proceeds to accuse her of determinism, or at least to tar her of that sin by guilty association. Warren’s statement, he contends, is a “footnote to modern liberalism’s more comprehensive disparagement of individualism and the reality of individual autonomy. A particular liberalism, partly incubated at Harvard, intimates the impossibility, for most people, of self-government—of the ability to govern oneself.” This premise—public incompetence—is said to warrant a “tutelary government” that owes “minimal deference to people’s preferences.”
As Will might say, Well. Let us set aside Galbraith, John Rawls, and the bedraggled remnant band of Marxists clinging to the doctrine of false consciousness, none of whose views can be fairly be imputed to Elizabeth Warren. As I understand it, her case for reasonable regulation does not ignore, but rather reflects, people’s preferences. We don’t want to be misled or cheated, but the complexity of modern contractual arrangements can baffle even the most educated among us. So we collectively opt for a framework that protects us against those who have more time and expertise to devise deceptions than we do to ferret them out. No, government shouldn’t make our choices for us, and we shouldn’t ask it to. But it does have a legitimate role in ensuring that the information relevant to those choices is accurate and intelligible.
Again, we can argue about the details. No doubt the Consumer Financial Protection Bureau that Warren conceived and hoped to lead is imperfect in some respects, as is every human creation. If so, experience will expose its flaws, and the political process can improve it. But the claim that it rests on a necessary presupposition of individual incompetence—and worse, the denial of individual autonomy—is unfounded. And so is Will’s root-and-branch dismissal of modern liberalism.
William Galston is a senior fellow at the Brookings Institution and a contributing editor for The New Republic.
William Galston
October 8, 2011 | 12 George Will and I have something in common: We were both trained in the close reading of political texts. Will recently applied his interpretive skills to a statement by Elizabeth Warren, who is running for the Democratic senatorial nomination in Massachusetts. Here is what Warren said:
There is nobody in this country who got rich on his own. Nobody. You built a factory out there—good for you. But I want to be clear. You moved your goods to market on the roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police forces and fire forces that the rest of us paid for. … You built a factory and it turned into something terrific or a great idea—God bless, keep a big hunk of it. But part of the underlying social contract is [that] you take a hunk of that and pay forward for the next kid who comes along.
After applying to Warren’s words William F. Buckley’s description of John Kenneth Galbraith—a pyromaniac in a field of straw men, refuting propositions no one asserts—Will moves to the gravamen of his argument: Warren’s vision entails a collectivist political agenda. He tartly and uncharitably described that agenda as follows:
[Its] premise is that individual is a chimera, that any individual’s achievements should be considered entirely derivative from society, so that the achievements need not be treated as belonging to the individual. Society is entitled to socialize—i.e., conscript—whatever portion it considers its share. It may, as an optional act of grace, allow the individual the remainder of what is misleadingly called the individual’s possession.
I have never met Warren. For all I know she may privately embrace the premise Will sketches. But even a cursory inspection of her public words reveals that she is saying nothing of the sort. Rather, she is making a straightforward argument. Without the enabling framework that only government can create, individuals cannot securely enjoy the fruits of their endeavors. Every return on investment, then, is actually a return on two sources of investment, one reflecting individual choice, the other public decisions. Taxation is not theft; nor is it, as the late philosopher Robert Nozick once put it, “on a par with forced labor.” Rather, it reflects the return on the public investment to which nearly everyone contributes. It does not rest on the claim that all resources are collective and that individuals receive what is theirs as an act of grace, but rather on the more modest claim that we all owe something in return for the collective goods without which our individual striving cannot succeed.
And Warren is saying something else as well—that (to quote a thinker with whom Will has more than a passing acquaintance), “Society is indeed a contract … a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.” Warren’s homely phrase, “pay forward,” captures the moral bond that connects this generation with the next. If we don’t adequately provide for their future, we are breaking that bond. A decent political community has the right—indeed the obligation—to honor that bond—if necessary, by compelling individuals who refuse to look beyond their own immediate concerns to contribute their share to the common future.
To be sure, these general arguments don’t come close to settling the question of who should pay how much in taxes. That’s what elections and political contestation are about. But they do establish a sturdy foundation for the idea that individual choice does not create all our obligations and there is nothing in principle objectionable when society presents its bill to each of us. I hope that is one of the straw men that Will (unlike some of his less tutored conservative brethren) never intended to deny.
Not content to accuse Warren of collectivism, he proceeds to accuse her of determinism, or at least to tar her of that sin by guilty association. Warren’s statement, he contends, is a “footnote to modern liberalism’s more comprehensive disparagement of individualism and the reality of individual autonomy. A particular liberalism, partly incubated at Harvard, intimates the impossibility, for most people, of self-government—of the ability to govern oneself.” This premise—public incompetence—is said to warrant a “tutelary government” that owes “minimal deference to people’s preferences.”
As Will might say, Well. Let us set aside Galbraith, John Rawls, and the bedraggled remnant band of Marxists clinging to the doctrine of false consciousness, none of whose views can be fairly be imputed to Elizabeth Warren. As I understand it, her case for reasonable regulation does not ignore, but rather reflects, people’s preferences. We don’t want to be misled or cheated, but the complexity of modern contractual arrangements can baffle even the most educated among us. So we collectively opt for a framework that protects us against those who have more time and expertise to devise deceptions than we do to ferret them out. No, government shouldn’t make our choices for us, and we shouldn’t ask it to. But it does have a legitimate role in ensuring that the information relevant to those choices is accurate and intelligible.
Again, we can argue about the details. No doubt the Consumer Financial Protection Bureau that Warren conceived and hoped to lead is imperfect in some respects, as is every human creation. If so, experience will expose its flaws, and the political process can improve it. But the claim that it rests on a necessary presupposition of individual incompetence—and worse, the denial of individual autonomy—is unfounded. And so is Will’s root-and-branch dismissal of modern liberalism.
William Galston is a senior fellow at the Brookings Institution and a contributing editor for The New Republic.
Thursday, October 6, 2011
Gordon Wood - Empire of Liberty
I just finished this definitive history of the US from 1789 to 1815. Gordon Wood is the premier historian of the revolutionary period. I will have a conclusive summary soon.
Subscribe to:
Posts (Atom)