Two points in lieu of an argument

by Henry Farrell on May 12, 2010

Have just finished writing two papers with hard deadlines – now in the throes of grading – so two quick points, which either sort-of-resonate-with or half-contradict each other in ways that I don’t have time to think or write about.

First: ungovernability. Or, rather, “ungovernability.” Chris got a lot of flak in comments for suggesting that centrists and center-right people in the media were going to come out with suggestions that a bit of dictatorship might not be a bad idea. As he pointed out, there used to be a lot of people on the right and center-right who made these arguments – and not just about countries in the developing world. Crouch and Pizzorno’s _The Resurgence of Class Conflict in Western Europe_ is particularly good on this, as I recall. That said, unlike Chris, I don’t have strong expectations that this set of rhetorical tropes is going to emerge in the very near future (although it may in the medium term). The old crop of center-right dictator-fanciers were fans of dictatorships not because they were opposed to democracy _tout court_, but because they were opposed to certain parts of the economy being subject to political control. This is not so much of an issue these days. From a certain point of view, the European Central Bank is a more-than-acceptable functional substitute for General Augusto Pinochet. Indeed, being less publicly embarrassing, it is arguably superior. One of these days soon, by the way, I’m going to write my post on the editorial policy of the _Economist_ during the Irish Famine – it wasn’t one of its finer moments.
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Here’s how it ends …

by Chris Bertram on May 12, 2010

So how will the new Tory-Lib Dem coalition work out? Here’s my prediction. The Tories are supremely political, and they will be looking for an opportunity to go to the country again and secure an overall majority for themselves before they have to implement voting reform. Easier said than done, of course, if you are in the middle of implementing unpopular spending cuts. But Europe could provide an issue: pick a fight with Brussels over “British sovereignty” and force the Lib Dems to take a pro-European stand and bring the coalition down. Then have the election on the single issue of Britain versus Europe. Result. The Lib Dem vote collapses as those who oppose the coalition’s record vote Labour and (Labour supporters, burned by Clegg this time, refuse to vote tactically again).

Via Yglesias, Dave Weigel takes a look at the new Maine GOP platform, which ain’t exactly Olympia Snowe all over. But neither of them mentions how the authors of this document take the text of the Preamble to the Constitution and wrench it around in ways contrary to an originalist reading of the text. Example: in order “to insure Domestic tranquility”, the Maine GOP prescribes “a. Promote family values. i. marriage is an institution between a man and a woman. ii. Parents, not government, are responsible for making decisions in the best interest of their children, whether disciplinary, educational, or medical. iii. We recognize the sanctity of life, which includes the unborn.”

Here I was, thinking the Framers were worried about Shays’ Rebellion-type stuff.

Igor Volsky rounded up some conservative muttering. This bit seems to me a bit off, however:

But the GOP can’t ask Kagan to be both a constitutional originalist and an opponent of the new health care law. In fact, given the long-standing Supreme Court precedent surrounding the federal government’s ability to regulate interstate commerce, should Kagan agree with Republicans’ claims that the lawsuits violate the 10th amendment, she would be seen as a judicial activist.

The point, rather, should be that conservatives can’t ask Kagan to be a constitutional originalist – and decide the health care case in the negative on that basis – without highlighting the fact that originalism gives no weight to precedent and is not an attitude of deference to the legislative branch. There’s no guarantee the original meaning was what precedent has long said it is. It would not exactly be a surprise if legislators today are doing things the framers didn’t have in mind.

‘Let justice be done, though the heavens fall’ is supposed to be the motto of the judicial activist advocate of a ‘living constitution’; but the more usual sort of ‘living constitution’ attitude is slightly backwards-looking Burkeanism: respect precedent. Rule out the former, you rule out the latter. ‘Let a 200-year old conception of justice be done, though the heavens fall’ is not a better way to keep the heavens from falling and is, in fact, plausibly more likely to let them fall. (It isn’t all that preposterous that strict originalism would rule out paper money, after all. There are a lot of words you might use to describe the court unilaterally ruling that all US dollars are not legal tender, but ‘restrained’ is not high on that list.) If what you want most is judicial restraint, and no activist judges, originalism is near to the worst of all possible judicial philosophies.

This is not to say that originalists can’t find ingenious ways to square the circle, making space for precedent by adding sophisticated additional premises and superfine epicycles to their philosophies. Scalia has done so: “I’m a conservative, I’m a textualist, I’m an originalist, but I’m not a nut.”

Originalism is a philosophy of fiery revolution, wrapped in a rhetorical shell of keeping everything the same. (That’s what American conservatism is, too, in a nutshell. That’s why Americans are philosophical conservatives but operational liberals, come to think of it. But maybe that’s too much for one post.)