When I read the preface, I thought: What a great story awaits the reader. The authors of The Constitution: An Introduction, Michael Stokes Paulsen and Luke Paulsen, father and son, spent nine summer vacations together discussing the original Constitution and the Amendments. I wish I could have been privy to the conversations. Did the father ever say to the son, “you changed my mind on this point?” Did the son ever say to the father, “you changed my mind on that point?” After all, I think, the key to introducing America is by way of a dynamic conversation within and between the generations. Their aim is both lofty and restrained: to write an introductory book that is “rigorous, accurate, and scholarly” yet at the same time “brief and readable.” But they fall short.
In both parties’ primaries a real populist is running, the kind of person many of the Framers would have called a demagogue. On the Republican side, the billionaire says we can deport all illegal immigrants and he will persuade Mexico to give the money to build a fence. Although he proclaims himself a conservative, his most substantial complaint about big government appears to be that he is not running it.
On the Democratic side, a self-proclaimed socialist argues that the problem with government is that it is not even bigger. He wants to sharply raise taxes and provide more government jobs. He also wants to criminalize all kinds of voluntary acts, from choosing to work at mutually agreeable wages to trading goods and services with foreigners, including those for whom that trade may mean the difference between subsistence and penury. This tribune of equality would ground down the truly destitute of the world. And, sadly, both these candidates are riding pretty high in the polls.
But these candidacies actually show the relative health of the United States compared to the most comparable democracies—those in Europe. Our populists of right and left are less bad then their populists, less likely to win power, and even in power less likely to do permanent damage.
The first canon of Progressivism is faith in human reason. Politics for the Progressive is a science not in the Aristotelian but in the Baconian sense. Political questions are not prudential complexities to which human judgment approaches better or worse answers but rather moral rigidities with right or wrong solutions wholly within the ambit of the all-powerful human mind. The distance from that schematic to administration by experts is brief. In fairness, that portrayal substantially attenuates the chain. But a recent family visit to Monticello served as a reminder that, however ironically, Thomas Jefferson is one of the chain's first American links.…
For its lay audience City Journal asked me to explain the King v. Burwell decision, which permitted federal exchanges under the Affordable Care Act to receive subsidies. Within its brief compass, I made two points.
First, I suggested, contrary to some conservative commentators, that the majority opinion did not demonstrate that Chief Justice Roberts was unprincipled but that instead the decision followed from a principled purposivist theory of statutory interpretation. I showed why the theory was wrong: like Mike Rappaport, I believe the meaning of the provision was clear and neither purposivist nor intentionalist interpretation should be allowed to defeat a clear meaning. This analysis of Roberts’ opinion comports with my more general view that four justices labeled conservatives are often fractured, because they are more legalists than ideologues, whose different interpretive methods lead to different results that are sound under their principles even when the principles are unsound.
Second, I noted that the effects of purposive interpretation are generally friendly to progressivism because it allows judges to choose overriding purposes that advance progressive goals that were not written into law. But let me be clear that any aid that purposivism gives to progressivism is not a reason to reject purposivism, just an effect of that interpretive method.
Here is an analogy.
Modern progressivism’s relatively weak legislative coalition explains much of the behavior of the Obama administration and the new threats it poses to our constitutional order. As I discuss in an article just published in the City Journal, under FDR and even LBJ, the Democratic party had much more enduring power in Congress. Moreover, these administrations were not nearly so hamstrung as is the Obama administration by deficits and high government spending caused in no small measure by previous progressive experiments. Thus, previous progressive administrations could often be more forthright in the proclamation of their goals and rely on their large legislative majorities to enact and revise the central parts of their programs.
But the Obama administration needs to compensate for its relative weakness by misleading the public and exalting executive power even beyond the previous efforts of progressives. For instance, the President’s repeated promise that you can keep your health care insurance and doctor was necessary to enact the Affordable Care Act, because in our more affluent society the great majority are happy with their health care. As I note in the piece:
For reasons known only to their coaches, the Seahawks decided against going “beast-mode” at the end of last night’s Super Bowl. Instead of running the unstoppable Marshawn Lynch, they flubbed a quick in-route and lost the game in the last seconds. So the Patriots weren’t faced with the challenge of stopping Lynch when it mattered. And that raises to mind a missed opportunity for another Lynch, Loretta Lynch, Obama’s nominee to be Attorney General and chief law enforcement officer of the land. This Lynch, however, has been given the ball. In what some thought might be a Judiciary Committee Superbowl on her nomination, instead turned out to be a fizzle for the constitutionalists. Lynch proved she can shed tackles also (although they were arm-tackles), while making the Republicans sound more like the press-defiant, laconic Marshawn Lynch.
The enigma, and perhaps impetus, of swelling executive power is that when constitutionally asserted, the presidency is shrinking. Witness the White House’s apparent intent to use the State of the Union address to propose that—wait for it—Congress enact national standards regarding how quickly companies must inform customers of data breaches.
Now, hacking is bad and reporting it is good. But it is also time—and the constitutional conservative should reach this conclusion with due reluctance—to abolish the State of the Union address, whose most pernicious effect is its political imperative for the President to propose as many new ideas as possible, regardless of the need for them, while Congress occupies a supine posture of reaction.
Cass Sunstein has offered a new solution to advance good governance in a time of partisanship—what he terms an age of “partyism.” Because a partisan world leads to gridlock in Congress, he suggests that executive agencies should continue to be empowered with substantial latitude to interpret their own statutes. Indeed, Professor Sunstein argues that agencies should gain a “bit more” discretion to construe existing statutes since Congress will not be doing much updating.
Michael Greve offered his own excellent demurral to Professor Sunstein’s solution. Here are two additional points of critique. First, empowering agencies is not neutral with respect to partisanship because bureaucrats lean to the left. Second, empowering agencies is not neutral as an ideological matter. The progressive agenda itself needs substantial discretion to continue the effectiveness and political endurance of much centralized regulation. In contrast, conservatives and libertarians are more sympathetic to market and other forms of decentralized order that will take hold even if federal regulation cannot be updated.
There is substantial evidence to support the first point that most federal employees lean to the left of Republicans.
Recently stumping for his cooperative federalism model of government-funded preschool, Barack Obama claimed that more money should be spent on these programs so that, in effect, women wouldn’t have to stay at home to take care of children. They should be working as the family’s core functions should be institutionalized by the state. This, of course, confirms what many on the Right think about these types of programs. They are back-door ways to ensure government gets more time with your children and you get more time at work, which you’ll need to pay the taxes for this program and the many other progressive bureaucracies.
Taking a different tack is Indiana Governor Mike Pence who says “This is a heart issue for me” when he urges renewal of his pilot program for government-funded preschool education.
Does that mean evidence-based debate on the subject is heartless? Well we’ll see.