Whatever decision the Supreme Court announces on Obamacare tomorrow, the various liberal missives of anticipatory anxiety in recent days have already revealed a great deal about the Left’s attitude toward our constitutional system. What we’ve learned can hardly come as news to conservatives, but it has been put forward in an unusually clear and undiluted form, and so is worth some thought. A few reflections below the fold (as this is a day that seems to call for long posts).
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The basic message of these left-leaning diatribes is pretty simple: A majority of the Court could only disagree with liberals about whether requiring all Americans to buy health insurance is beyond the proper bounds of the Congress’s power to regulate commerce if that majority acted in a purely political or partisan way; there is no room for disagreement regarding the actual interpretation of the actual Constitution.
E.J. Dionne says that if the Court overturns any part of Obamacare, “we will need a fearless conversation about how a conservative majority of the court has become a cog in a larger right-wing project to make progressive political and legislative victories impossible.” James Fallows says that “the Roberts majority is barreling ahead without regard for the norms, and it is taking the court’s legitimacy with it.” Yale law professor Akhil Amar thinks the proper outcome is so obvious that if even four justices disagree with him then the Court must be a sham—and he takes it personally. “If they decide this by 5-4,” he told Ezra Klein, “then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” Other examples abound this week.
It would be easy to criticize all this for its sheer unselfconscious lack of seriousness: These people are actually saying that any outcome except the one they want must be driven by an outcome-oriented political crusade. Only their view could result from an actual engagement with the question before the Court, and any other view could only be a function of corruption or of cynicism. It must be nice to be so enlightened.
More interesting, however, is what such an argument implies about one’s view of politics. Dionne, Fallows, Amar, and similar observers on the Left seek to draw a stark distinction between political and judicial thought, and it reveals their very low opinion of political ideas. They imply that there ought to be no connection between the most basic political divisions that define our public life—crudely encompassed in the Left/Right division—and ways of understanding the Constitution. This is a profound mistake, and a very telling one. As the Left often does, they underplay the substantive seriousness and significance of the Left/Right divide, presumably because they do not think of themselves as possessed of a particular worldview and believe they are merely objectively analyzing the obvious realities of the world around us. But there’s much more than they think to the Left/Right divide.
To put the matter much too broadly, the Left/Right divide begins in a disagreement about the nature of the liberal society; the Left and the Right are really two kinds of liberalism. I took up this subject in NR last fall, writing:
The difference between these two kinds of liberalism — constitutionalism grounded in humility about human nature and progressivism grounded in utopian expectations — is a crucial fault line of our politics, and has divided the friends of liberty since at least the French Revolution. It speaks to two kinds of views about just what liberal politics is.
One view, which has always been the less common one, holds that liberal institutions were the product of countless generations of political and cultural evolution in the West, which by the time of the Enlightenment, and especially in Britain, had begun to arrive at political forms that pointed toward some timeless principles in which our common life must be grounded, that accounted for the complexities of society, and that allowed for a workable balance between freedom and effective government given the constraints of human nature. Liberalism, in this view, involves the preservation and gradual improvement of those forms because they allow us both to grasp the proper principles of politics and to govern ourselves well.
The other, and more common, view argues that liberal institutions were the result of a discovery of new political principles in the Enlightenment — principles that pointed toward new ideals and institutions, and toward an ideal society. Liberalism, in this view, is the pursuit of that ideal society. Thus one view understands liberalism as an accomplishment to be preserved and enhanced, while another sees it as a discovery that points beyond the existing arrangements of society. One holds that the prudent forms of liberal institutions are what matter most, while the other holds that the utopian goals of liberal politics are paramount. One is conservative while the other is progressive.
The principles that the progressive form of liberalism thought it had discovered were much like those that more conservative liberals believed society had arrived at through long experience: principles of natural rights that define the proper ends and bounds of government. Thus for a time, progressive and conservative liberals in America — such as Thomas Jefferson and Thomas Paine on one hand and James Madison and Alexander Hamilton on the other — seemed to be advancing roughly the same general vision of government. But when those principles failed to yield the ideal society (and when industrialism seemed to put that ideal farther off than ever), the more progressive or radical liberals abandoned these principles in favor of their utopian ambitions. At that point, progressive and conservative American liberals parted ways — the former drawn to post-liberal philosophies of utopian ends (often translated from German) while the latter continued to defend the restraining mechanisms of classical-liberal institutions and the skeptical worldview that underlies them.
That division is evident in many of our most profound debates today, and especially in the debate between the Left and the Right about the Constitution
It is not by coincidence that the Constitution is central to the argument. The constitution largely embodies in its forms and structures the more conservative form of American liberalism, and from the moment the progressive movement was born its adherents understood that the Constitution as traditionally understood must be their foremost target for reform. The first real skirmishes between conservatives and progressives (about a century ago) were explicitly about the Constitution, and many subsequent ones have been too.
It thus makes sense that the Left/Right divide should be embodied in a divide on the Court—a divide about serious questions of interpretation in light of a serious dispute about the purpose and character of our society, not a divide over “money, party, and party loyalty,” as Akhil Amar puts it. Many people who are liberals or conservatives are (at least implicitly) liberals or conservatives for a serious set of reasons, and that serious set of reasons also shapes how they understand and approach the Constitution.
There is a serious debate to be had between the partisans of these two sets of views, and it is a debate that often is had among Supreme Court justices in their written opinions. If we understand the contours of that debate, we can have some sense of where serious people on either side are likely to fall much of the time. After all, the liberals on the Supreme Court are at least as predictable (indeed more so, as is evident in the Obamacare speculation) as the conservatives. Dionne, Amar, and Fallows are too. And that makes sense: They hold certain views for reasons that we and they can understand, and they seek to apply them thoughtfully to particular instances.
This debate is indeed a political debate, in the best and highest sense. But that does not make it a cynical debate, or an illegitimate one. On the contrary. The apparent inability of many left-wing commentators to see that point tells us more than all their diatribes in recent days. Their anger about the very possibility that the Court might disagree with them about Obamacare suggests that they do not believe that there can be such a thing as a serious political debate—they take serious and political to be opposites. And it shows.