MADASHECC : Moms' and Dads' Associated Society Helping to Educate Future Conservative Constitutionalists

April 2010
Stephen Markman
Justice
Michigan Supreme Court

Stephen Markman was appointed Justice of the Michigan Supreme Court in 1999, and was re-elected in 2000 and 2004. Previously, he served as United States Attorney in Michigan; as Assistant Attorney General under President Ronald Reagan, where he coordinated the federal judicial selection process; and as Chief Counsel of the Senate Subcommittee on the Constitution. He has published in such journals as the Stanford Law Review and the University of Chicago Law Review, and has been a distinguished professor of constitutional law at Hillsdale College since 1993.

The following is adapted from a speech delivered in Washington, D.C., on February 25, 2010, at an event sponsored by Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship.

AS ASSISTANT ATTORNEY GENERAL under President Ronald Reagan, I prepared a report for Attorney General Edwin Meese entitled “The Constitution in the Year 2000: Choices Ahead.” This report sought to identify a range of areas in which significant constitutional controversy could be expected over the next 20 years. As critical as I believe those controversies were, they pale in significance before the controversies that will arise over the next several decades. The resolution of these emerging controversies will determine whether the Constitution of 2030 bears any resemblance to the Constitution of 1787—the Framers’ Constitution that has guided this nation for most of its first two centuries and has rendered it the freest, most prosperous, and most creative nation in the history of the world.

Proponents of a “21st century constitution” or “living constitution” aim to transform our nation’s supreme law beyond recognition—and with a minimum of public attention and debate. Indeed, if there is an overarching theme to what they wish to achieve, it is the diminishment of the democratic and representative processes of American government. It is the replacement of a system of republican government, in which the constitution is largely focused upon the architecture of government in order to minimize the likelihood of abuse of power, with a system of judicial government, in which substantive policy outcomes are increasingly determined by federal judges. Rather than merely defining broad rules of the game for the legislative and executive branches of government, the new constitution would compel specific outcomes.

Yes, the forms of the Founders’ Constitution would remain—a bicameral legislature, periodic elections, state governments—but the important decisions would increasingly be undertaken by courts, especially by federal courts. It will be the California referendum process writ national, a process by which the decisions of millions of voters on matters such as racial quotas, social services funding, and immigration policy have been routinely overturned by single judges acting in the name of the Constitution—not the Framers’ Constitution, but a “constitution for our times,” a “living constitution,” resembling, sadly, the constitutions of failed and despotic nations across the globe.

This radical transformation of American political life will occur, if it succeeds, not through high-profile court decisions resolving grand disputes of war and peace, abortion, capital punishment, or the place of religion in public life, but more likely as the product of decisions resolving forgettable and mundane disputes—the kind mentioned on the back pages of our daily newspapers, if at all. Let me provide a brief summary of six of the more popular theories of the advocates of the 21st century constitution. In particular, it is my hope here to inform ordinary citizens so that they will be better aware of the stakes. For while judges and lawyers may be its custodians, the Constitution is a document that is the heritage and responsibility of every American citizen.

1. Privileges or Immunities Clause

Since shortly after the Civil War, the privileges or immunities clause of the 14th Amendment has been understood as protecting a relatively limited array of rights that are a function of American federal citizenship, such as the right to be heard in courts of justice and the right to diplomatic protection. In defining the protections of the privileges or immunities clause in this manner, the Supreme Court in the Slaughterhouse Cases (1873) rejected the argument that the clause also protects rights that are a function of state citizenship, asserting that this would lead to federal courts serving as a “perpetual censor” of state and local governments. This decision has served as a bulwark of American federalism.

Although a considerable amount of federal judicial authority has since been achieved over the states through interpretations of the due process clause of the 14th Amendment, many proponents of a 21st century constitution seek additional federal oversight of state and local laws. Their strategy in this regard is to refashion the privileges or immunities clause as a new and essentially unlimited bill of rights within the 14th Amendment. The practical consequences of this would be to authorize federal judges to impose an ever broader and more stultifying uniformity upon the nation. Whatever modicum of federalism remains extant at the outset of this century, considerably less would remain tomorrow.

2. Positive Rights

For the 21st century constitutionalist, perhaps the greatest virtue of redefining the privileges or immunities clause is the prospect of transforming the Constitution from a guarantor of “negative liberties” into a charter of “affirmative government,” guaranteeing an array of “positive” rights. As President Obama has observed in a radio interview in criticism of the legacy of the Warren Court of the 1950s and 1960s, “[It] never ventured into the issues of redistribution of wealth and . . . more basic issues of political and economic justice in this society. . . . [T]he Warren Court . . . wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution. . . that generally the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.”

President Obama is correct. The Framers’ Constitution defines individual rights in terms of what the government cannot do to you. For example, the government cannot inflict cruel and unusual punishment, and therefore the individual has a constitutional right not to be subject to such punishment; the government cannot engage in unreasonable searches and seizures, and therefore the individual has a constitutional right not to be subject to such searches and seizures, and so forth. By contrast, the Framers’ Constitution does not guarantee rights to material goods such as housing, education, food, clothing, jobs, or health care—rights that place a related obligation upon the state to obtain the resources from other citizens to pay for them.

Proponents of a 21st century constitution have many grievances with the individual rights premises of our Constitution as written—such as the largely procedural focus of the 14th Amendment’s due process clause, with its old-fashioned conception of such rights as those to “life, liberty, and property”; the negative cast of the specifically-defined rights in the Bill of Rights; and the limited application of the equal rights clause to things that have been enacted by legislatures (as opposed to things that they should have been required to enact). Each of these “limitations” poses significant barriers to what 21st century constitutionalists hope to achieve in reconfiguring America. This explains their interest in employing the privileges or immunities clause, which seems to them open-ended and susceptible to definition by judges at their own discretion.

As various advocates of a 21st century constitution have urged, a privilege or immunity might be interpreted to allow the invention of a host of new “rights,” and thus be construed to guarantee social or economic equality. However pleasing this might sound to some people, there should be no mistake: adopting this interpretation will supplant representative decision-making with the decision-making of unelected, unaccountable, and life-tenured judges. Should the privileges or immunities clause be used in this way, as a charter of positive rights, ours will become an America in which citizens are constitutionally entitled to their neighbors’ possessions; in which economic redistribution has become as ingrained a principle as federalism and the separation of powers; in which the great constitutional issues of the day will focus on whether porridge should be subsidized and housing allowances reimbursed at 89 or 94 percent of the last fiscal year level; and in which a succession of new “rights” will be parceled out as people are deemed worthy of them by berobed lawyers in the judiciary.

3. State Action

A barrier posed by both the due process and the privileges or immunities clauses, and viewed as anachronistic by 21st century constitutionalists, is the requirement of state action as a precondition for the enforcement of rights. In the Civil Rights Cases (1883), another post-Civil War precedent, the Supreme Court asserted that these provisions of the 14th Amendment prohibited only the abridgment of individual rights by the state. “It is state action of a particular character that is prohibited. . . . The wrongful act of an individual is simply a private wrong and if not sanctioned in some way by the state, or not done under state authority, the [individual’s] rights remain in full force.” However, for advocates of 21st century constitutionalism, if fairness and equity are to be achieved, the Constitution must become more like a general legal code—applicable to both public and private institutions.

Consider, for example, Hillsdale College. Despite being the embodiment of a thoroughly private institution, government officials have sought to justify the imposition of federal rules and regulations upon Hillsdale by characterizing the college as the equivalent of a state entity on the grounds that it received public grants-in-aid. When in response to this rationale, and in order to retain its independence, Hillsdale rejected further grants, the government then sought to justify its rules and regulations on the grounds that Hillsdale was the indirect beneficiary of grants-in-aid going to individual students, such as GI Bill benefits. Once again in response to this rationale, Hillsdale asserted its independence by barring its students from receiving public grants, even those earned as in the case of GI benefits, and instead bolstered its own private scholarship resources. We have witnessed a steadily more aggressive effort by governmental regulators to treat private institutions as the equivalent of the state, and thereby to extend public oversight.

However, it would be more convenient simply to nullify the state action requirement altogether. Professor Mark Tushnet of Harvard Law School, for example, would reconsider the Civil Rights Cases:

The state-action doctrine contributes nothing but obfuscation to constitutional analysis. It works as a bogeyman because it appeals to a vague libertarian sense that Americans have about the proper relation between them and their government. It seems to suggest that there is a domain of freedom into which the Constitution doesn’t reach. We would be well rid of the doctrine.

If Professor Tushnet succeeds in this mission, Hillsdale’s policies concerning such things as tuition, admissions, faculty hiring, curriculum, and discipline will each have to pass the scrutiny, and receive the imprimatur, of judges.

4. Political Questions

In areas that were once viewed as inappropriate for judicial involvement, federal courts have begun to assert themselves in an unprecedented and aggressive manner. The limited role of the judiciary, for example, with regard to matters of national defense and foreign policy is not explicitly set forth in the Constitution, but such matters have from time immemorial been understood to be non-justiciable and within the exclusive responsibility of the elected branches of government. As far back as Marbury v. Madison (1803), Chief Justice John Marshall recognized that “Questions in their nature political . . . can never be made in this Court.”

Yet just in the last several years, the Supreme Court, in a series of 5-4 decisions, has overruled determinations made by both the legislative and executive branches regarding the treatment of captured enemy combatants. Most notably, the Court ruled in Boumediene v. Bush (2008) that foreign nationals captured in combat and held outside the United States by the military as prisoners of war—a war authorized by the Congress under Article I, Section 8, and waged by the President as Commander-in-Chief under Article II, Section 2—possess the constitutional right to challenge their detentions in federal court. Thus, in yet one more realm of public policy—one on which the sovereignty and liberty of a free people are most dependent, national defense—judges have now begun to embark upon a sharply expanded role.

If there is no significant realm left of “political questions,” if there are no longer any traditional limitations upon the exercise of the judicial power, then every matter coming before every president, every Congress, every governor, every legislature, and every county commission and city council can, with little difficulty, be summarily recast as a justiciable dispute, or what the Constitution, in Article III, Section 2, describes as a “case” or “controversy.” As a result, every policy debate taking place within government, at every level, will become little more than a prelude for judicial resolution.

5. Ninth Amendment

Another looming constitutional battleground concerns the meaning of the Ninth Amendment to the Constitution: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Many 21st century constitutionalists understand this amendment to say that there is some unknown array of unenumerated rights that lie fallow in the Constitution, waiting only to be unearthed by far-sighted judges.

Professor Thomas Grey of the Stanford Law School has suggested, for example, that the Ninth Amendment constitutes a “license to constitutional decisionmakers to look beyond the substantive commands of the constitutional text to protect fundamental rights not expressed therein.” Rights to abortion, contraception, homosexual behavior, and similar sexual privacy rights have already been imposed by judges detecting such rights in the Ninth Amendment. The problem is that, in the words of Justices Stewart and Black, this understanding of the amendment “turns somersaults with history” and renders the courts a “day-to-day constitutional convention.”

The more conventional understanding of the Ninth Amendment has viewed it in the historical context of the Bill of Rights, of which it is a part. By this understanding, it was written to dispel any implication that by the specification of particular rights in the Bill of Rights, the people had implicitly relinquished to the new federal government rights not specified. Like the Tenth Amendment—which serves as a reminder that powers neither given to the federal government nor prohibited to the states in the Constitution are reserved to the states or to the people—the Ninth Amendment was adopted to emphasize that our national government is one of limited powers. Its principal purpose was to prevent an extension of federal power, not to provide an open-ended grant of judicial authority that would have the opposite effect.

6. Transnationalism

Professor Harold Koh of the Yale Law School, and now State Department Legal Counsel, is perhaps the leading proponent of what he calls “transnationalism,” which he contrasts with the “nationalist philosophy” that has characterized American constitutional law for the past 220 years.

Transnationalists believe that international and domestic law are merging into a hybrid body of transnational law, while so-called nationalists persist in preserving a division between domestic and foreign law that respects the sovereignty of the United States. Transnationalists believe that domestic courts have a critical role to play in incorporating international law into domestic law, while so-called nationalists claim that only the political branches are authorized to domesticate international legal norms. Professor Koh predicts that these disagreements will play out in future Supreme Court confirmation hearings, and that these appointments will be “pivotal” in determining by 2020 the direction in which the jurisprudence of the United States proceeds.

In practice, transnationalism would legitimize reliance by American judges upon foreign law in giving meaning to the United States Constitution; it would bind federal and state governments to international treaties and agreements that had never been ratified by the United States Senate much less enacted into law by the Congress; it would render both the domestic and international conduct of the United States increasingly beholden to the review and judgment of international tribunals in Geneva and the Hague; it would expose American soldiers and elected leaders to the sanctions of international law for “war crimes” and “violations of the Earth”; and it would replace the judgments of officials representing the American people, and holding paramount the interests of the United States, with the judgments of multinational panels of bureaucrats and judges finely balancing the interests of the U.S. with those of other nations—including authoritarian and despotic governments—throughout the world.

* * *

It is with the intention of generating debate, and of providing a roadmap to help us better navigate the constitutional forks-in-the-road that will soon be facing our nation, that I offer these thoughts. While there has never been a time in our history in which there was not serious constitutional debate among our people, I would submit that there have been few times in which this debate was more fundamental in defining the American experiment.

Reprinted by permission from Imprimis, a publication of Hillsdale College.

May/June 2010
Charles Kesler
Editor
Claremont Review of Books

The New New Deal
Charles R. Kesler is the Dengler-Dykema Distinguished Professor of Government at Claremont McKenna College and editor of the Claremont Review of Books. His articles on contemporary politics have appeared in several newspapers and journals, including the Los Angeles Times, the Wall Street Journal, the Washington Times, National Review, and the Weekly Standard. He is editor of the Signet Classic edition of The Federalist Papers, editor of and a contributor to Saving the Revolution: The Federalist Papers and the American Founding, and co-editor, with William F. Buckley, Jr., of Keeping the Tablets: Modern American Conservative Thought.

The following is adapted from a lecture delivered at Hillsdale College on February 1, 2010, during a four-day conference on “The New Deal,” co-sponsored by the Center for Constructive Alternatives and the Ludwig von Mises Lecture Series.

IN PRESIDENT Obama, conservatives face the most formidable liberal politician in at least a generation. In 2008, he won the presidency with a majority of the popular vote—something a Democrat had not done since Jimmy Carter’s squeaker in 1976—and handily increased the Democrats’ control of both houses of Congress. Measured against roughly two centuries worth of presidential victories by Democratic non-incumbents, his win as a percentage of the popular vote comes in third behind FDR’s in 1932 and Andrew Jackson’s in 1828.

More importantly, Obama won election not as a status quo liberal, but as an ambitious reformer. Far from being content with incremental gains, he set his sights on major systemic change in health care, energy and environmental policy, taxation, financial regulation, education, and even immigration, all pursued as elements of a grand strategy to “remake America.” In other words, he longs to be another FDR, building a New New Deal for the 21st century, dictating the politics of his age, and enshrining the Democrats as the new majority party for several decades to come. Suddenly, the era of big government being over is over; and tax-and-spend liberalism is back with a vengeance. We face a $1.4 trillion federal deficit this fiscal year alone and $10-12 trillion in total debt over the coming decade. If the ongoing expansion of government succeeds, there will also be very real costs to American freedom and to the American character. The Reagan Revolution is in danger of being swamped by the Obama Revolution.\

To unsuspecting conservatives who had forgotten or never known what full-throated liberalism looked like before the Age of Reagan, Obama’s eruption onto the scene came as a shock. And in some respects, obviously, he is a new political phenomenon. But in most respects, Obama does not represent something new under the sun. On the contrary, he embodies a rejuvenated and a repackaged version of something older than our grandmothers—namely the intellectual and social impulses behind modern liberalism. Yet even as President Obama stands victorious on health care and sets his sights on other issues, his popularity and that of his measures has tumbled. His legislative victories have been eked out on repeated party line votes of a sort never seen in the contests over Social Security, Medicare, and previous liberal policy successes, which were broadly popular and bipartisan. In short, a strange thing is happening on the way to liberal renewal. The closer liberalism comes to triumphing, the less popular it becomes. According to Gallup, 40 percent of Americans now describe themselves as conservative, 35 percent as moderates, and only 21 percent call themselves liberal. After one of its greatest triumphs in several generations, liberalism finds itself in an unexpected crisis—and a crisis that is not merely, as we shall see, a crisis of public confidence.

To try to understand better the difficulties in which the New New Deal finds itself, it might be useful to compare it to the original. The term itself, New Deal, was an amalgam of Woodrow Wilson’s New Freedom and Teddy Roosevelt’s Square Deal, and was deliberately ambiguous as to its meaning. It could mean the same game but with a new deal of the cards; or it could mean a wholly new game with new rules, i.e., a new social contract for all of America. In effect, I think, the term’s meaning was somewhere in between. But FDR liked to use the more conservative or modest sense of the term to disguise the more radical and ambitious ends that he was pursuing.

In its own time, the New Deal was extremely popular. Among its novel elements was a new kind of economic rights. The Progressives at the turn of the century had grown nervous over the closing of the American frontier and the rise of large corporations—developments they thought threatened the common man’s equality of opportunity. Aside from anti-trust efforts and war-time taxation, however, the Progressives did not get very far toward a redistributive agenda, and were actually wary of proclaiming new-fangled rights. They were more comfortable with duties than rights, and disapproved of the selfish penumbras cast by the natural rights doctrines of old. Woodrow Wilson and Teddy Roosevelt preached moral uplift—doing your duty in a more socialized or socialistic era. They tended to associate rights talk with individualism of the backward-looking sort. It took the cleverness of FDR and his advisors to figure out how rights could be adapted to promote bigger government and to roll back the old regime of individualism and limited government.

What was this new concept of rights? Instead of rights springing from the individual—as God-given aspects of our nature—FDR and the New Dealers conceived of individualism as springing from a kind of rights created by the state. These were social and economic rights, which FDR first proclaimed in his campaign speeches in 1932, kept talking about throughout the New Deal, and summed up toward the end of his life in his annual message to Congress in 1944. These were the kinds of rights that the New Deal especially promoted: the right to a job, the right to a decent home, the right to sell your agricultural products at a price that would allow you to keep your farm, the right to medical care, the right to vacations from work, and so on. FDR elevated these rights to be parts of what he called “our new constitutional order.”

Of course, not all of these rights were enshrined in law. After all, President Obama has only just now enshrined a dubious right to health care into law. And not one of these rights was actually added to the Constitution, despite Roosevelt’s pitching them as what he called a “second Bill of Rights.” And the fact that none of them was ever formulated into a constitutional amendment is entirely consistent with FDR’s and modern liberals’ belief in a living constitution—that is, a constitution that is changeable, Darwinian, not frozen in time, but rather creative and continually growing. Once upon a time, the growth and the conduct of government were severely restricted because a lot of liberal policies were thought to be unconstitutional. In fact, many New Deal measures proposed by FDR were struck down as unconstitutional by the Supreme Court in the 1930s. But nowadays it’s hard to think of a measure expanding government power over private property and enterprise that the Court, much less Congress, would dismiss out of hand as simply unconstitutional.

If you consider the financial bailouts or the re-writing of bankruptcy law involved in the GM and Chrysler deals, these are the kinds of things that politicians in sounder times would have screamed bloody murder about as totally unconstitutional and illegal. But hardly a peep was heard. After all, once we have a living constitution, we shouldn’t be surprised to find we have a living bankruptcy law, too. The meaning of the law can change overnight as circumstances dictate—or as the political reading of circumstances dictates.

Despite not being formally enshrined in the Constitution, most of these new rights—what we’ve come to call entitlement rights—did get added to the small “c” constitution of American politics anyway, either during the New Deal or during its sequel, the Great Society. Social Security, Medicare, Medicaid, and kindred welfare state programs moved to the center of our political life, dominating the domestic agenda and eventually usurping the majority of federal spending, now delicately termed “uncontrollable.”

The social and economic rights inherent in these entitlements purported to make Americans secure, or at least to make them feel secure. “Necessitous men are not free men,” FDR liked to say—which meant that freedom required government to take care of a person’s necessities so that he might live comfortably, fearlessly, beyond necessity. The long-term problem with this was that the reasons given to justify the relatively modest initial welfare rights pointed far beyond themselves. No one ever doubted, for instance, that good houses, well-paying jobs, and decent medical care were fine things. But the liberal alchemy that transformed these fine things into “rights” was powerful magic. Such rights implied, in turn, duties to provide the houses, jobs, and medical care now guaranteed to most everyone.

And on whom did the duties fall? Liberalism never came clean on that question. It pointed sometimes to the rich, suggesting that enough of their wealth could be redistributed to provide the plenty that would be required to supply houses and medical care and jobs to those who lack them. But liberalism also liked to say that the duty to provide these things fell broadly upon the American middle class—that these were basically insurance programs into which people paid and from which they took out their benefits when needed.

Could future benefits be cut or eliminated? Liberals breathed nary a word about such unhappy scenarios, selling the new rights as though they were self-financing—that is, as if they would be cost-free in the long-term, if not a net revenue generator. In fact, entitlements are the offspring of formulas that can be trimmed or repealed by simple majorities of the legislature. And the benefits have to be paid for by someone—as it turns out, primarily by the young and the middle class.

The moral costs of the new rights went further. Virtue was the way that free people used to deal with their necessities. It took industry, frugality, and responsibility, for example, to go to work every morning to provide for your family. It took courage to handle the fears that inevitably come with life, especially in old age. But the new social and economic rights tended to undercut such virtues, subtly encouraging men and women to look to the government to provide for their needs and then to celebrate that dependency as if it were true freedom. In truth, the appetite for the stream of benefits promised by the new rights was more like an addiction, destructive of both freedom and virtue.

The new entitlements pointed to a beguiling version of the social contract. As FDR once described it, the new social contract calls for the people to consent to greater government power in exchange for the government providing them with rights: Social Security, Medicare, Medicaid, Obamacare, etc. The more power the people give government, the more rights we receive. FDR’s New Deal implied that there’s nothing to fear from making government bigger and bigger, because political tyranny—at least among advanced nations—is a thing of the past.

In truth, however, the new socio-economic rights were group rights, not individual rights. They were rights for organized interests: labor unions, farmers, school teachers, old people, blacks, sick people, and so forth. Collectively, these rights encouraged citizens to think of themselves as members of pressure groups or to organize themselves into pressure groups. Subtly and not so subtly, citizens were taught to identify their rights with group self-interests of one kind or another.

These new group rights were conspicuously not attached to obligations. The old rights—the individual rights of the Declaration of Independence and the Constitution—had come bound up with duties. The right to life or the right to liberty implied a duty not to take away someone else’s life or someone else’s liberty. The new rights, on the other hand, had no corresponding duties—except perhaps to pay your taxes. The new rights pointed to a kind of moral anarchy in which rights without obligations became the currency of the realm—in which rights, understood as putative claims on resources, were effectively limited only by other, stronger such claims. The result was, at best, an equilibrium of countervailing power.

President Obama’s New New Deal doesn’t look so distinctive when you view it in this historical light. The collectivization of health care, for instance, is a hearty perennial of liberal politics and fulfills a 65-year-old promise made by FDR. Moreover, in cultivating the aura of a prophet-leader, uniquely fit to seize the historical moment and remake his country, Obama follows the theory and example of Woodrow Wilson. But there are signs of a few new or distinctive principles in this current leftward lurch, and I will mention two.

First, there is the postmodernism that crops up here and there. Postmodernism insists that there’s no truth “out there” by which men can guide their thoughts and actions. Postmodern liberals admit, then, that there is no objective support—no support in nature or in God or in anything outside of our wills—for liberalism itself. Liberalism in these terms is just a preference. The leading academic postmodernist, the late Richard Rorty, argued that liberals are moral relativists who feel an “aversion to cruelty,” and it’s that aversion that makes them liberals. And indeed, if one admits that all moral principles are relative, the only thing that really sets one apart as a liberal is a certain kind of passion or feeling. President Obama calls this feeling empathy. And yes, of course, all this implies that conservatives don’t have feelings for their fellow human beings—except perhaps a desire to be cruel to them.

Now I don’t mean to suggest here that President Obama is a thoroughgoing postmodernist, because he’s not. But neither is he just an old-fashioned progressive liberal of the 1930s variety. New Deal liberals believed in the future. In fact, they believed in a kind of predictive science of the future. Post-modernists reject all truth, including any assertions about progress or science. Postmodernists speak of narrative—one of those words one hears a lot of these days in politics—rather than truth. Narrative means something like this: Even if we can’t find meaning in any kind of objective reality out there, we can still create meaning by telling each other stories, by constructing our own narratives—and the more inclusive and empathetic these narratives, the better. President Obama often speaks this postmodern language. For example, here is part of a discussion of the Constitution and the Declaration of Independence in his book, The Audacity of Hope:

Implicit in [the Constitution's] structure, in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility of any idea or ideology or theology or “ism,” any tyrannical consistency that might lock future generations into a single, unalterable course, or drive both majorities and minorities into the cruelties [notice cruelty: he's against it] of the Inquisition, the pogrom, the gulag, or the jihad.

Obama’s point here is that absolute truth and ordered liberty are incompatible, because absolute truth turns its believers into fanatics or moral monsters. Now granted, it was certainly a good thing that America escaped religious fanaticism and political tyranny. But no previous president ever credited these achievements to the Founders’ supposed rejection of absolute truth—previously known simply as truth. What then becomes of those great self-evident truths that President Obama’s admitted hero, Abraham Lincoln, celebrated and risked all to preserve? And that Martin Luther King, Jr., invoked so dramatically?

Postmodernism came out of the 1960s university—though it flowered, if that’s the right word, in subsequent decades, especially after the collapse of Communism. President Obama is a child of the ’60s—born in 1961. The Sixties Left was in some ways strikingly different from the Thirties Left. For one thing, the ’60s left was much more—as they liked to say in those days—“existentialist.” That is, ’60s leftists admitted to themselves that all values are relative, and therefore irrational. But they still believed or hoped that morality could be felt, or experienced through the feelings of a generation united in its demands for justice now. Shared feelings about values became a kind of substitute for truth among protesting liberals in the ’60s, which goes far to explaining the emotionalism of liberals then and since. But when the country refused to second their emotions—when the country elected President Nixon in 1968 and again, by larger margins, in 1972—the kids grew bitter and increasingly alienated from the cause of democratic reform, which used to be liberalism’s stock-in-trade. In this context, President Obama represents not only a return to a vigorous liberal reform agenda like the New Deal, but also a kind of bridge between the alienated campus left and the political left.

The second new element in President Obama’s liberalism is even more striking than its postmodernism. It is how uncomfortable he is with American exceptionalism—and thus with America itself. President Obama considers this country deeply flawed from its very beginnings. He means not simply that slavery and other kinds of fundamental injustice existed, which everyone would admit. He means that the Declaration of Independence, when it said that all men are created equal, did not mean to include blacks or anyone else who is not a property-holding, white, European male—an argument put forward infamously by Chief Justice Roger Taney in the Dred Scott decision, and one that was powerfully refuted by Abraham Lincoln.

In short, President Obama agrees with his former minister, Reverend Jeremiah Wright, much more than he let on as a presidential candidate. Read closely, his famous speech on that subject in March 2008 doesn’t hide his conclusion that Wright was correct—that America is a racist and ungodly country (hence, not “God Bless America,” but “God Damn America!”;). Obama agrees with Wright that in its origin, and for most of its history, America was racist, sexist, and in various ways vicious. Wright’s mistake, Obama said, was underestimating America’s capacity for change—a change strikingly illustrated by Obama’s own advances and his later election. For Obama, Wright’s mistake turned on not what America was, but what America could become—especially after the growth of liberalism in our politics in the course of the 20th century. It was only liberalism that finally made America into a decent country, whereas for most of its history it was detestable.

Unlike most Americans, President Obama still bristles at any suggestion that our nation is better or even luckier than other nations. To be blunt, he despises the notion that Americans consider themselves special among the peoples of the world. This strikes him as the worst sort of ignorance and ethnocentrism, which is why it was so difficult for him to decide to wear an American flag lapel pin when he started running for president, even though he knew it was political suicide to refuse wearing it.

As President Obama hinted in his Berlin speech during the campaign, he really thinks of himself as a multiculturalist, as a citizen of the world, first, and only incidentally as an American. To put it differently, he regards patriotism as morally and intellectually inferior to cosmopolitanism. And, of course, he is never so much a citizen of the world as when defending the world’s environment against mankind’s depredations, and perhaps especially America’s depredations. In general, the emotionalist defense of the earth—think of Al Gore—is now a vital part of the liberalism of our day. It’s a kind of substitute for earlier liberals’ belief in progress. Although his own election—and secondarily liberalism’s achievements over the past century or so—help to redeem America in his view, Obama remains, in many ways, profoundly disconnected from his own land.

This is a very different state of mind and character from that of Franklin Roosevelt, who was the kind of progressive who thought that America was precisely the vanguard of moral progress in the world. This was the way Woodrow Wilson, Lyndon Johnson, and every great liberal captain before Obama thought about his country—as a profoundly moral force in the world, leading the nations of the world toward a better and more moral end point. Obama doesn’t think that way, and therefore his mantle as an American popular leader—despite his flights of oratorical prowess—doesn’t quite fit him in the way that FDR’s fit him. One can see this in the tinges of irony that creep into Obama’s rhetoric now and then—the sense that even he doesn’t quite believe what he’s saying; and he knows that but hopes that you don’t.

Obama’s ambivalence is, in many ways, the perfect symbol of the dilemma of the contemporary liberal. How can Obama argue that America and liberalism reject absolute truths, and in the same breath affirm—as he did recently to the United Nations—that human rights are self-evidently true? You can’t have it both ways, though he desperately wants and tries to. Here, surely, is the deepest crisis of 20th-century American liberalism—that it can no longer understand, or defend, its principles as true anymore. It knows that, but knows as well that to say so would doom it politically. Liberals are increasingly left with an amoral pragmatism that is hard to justify to themselves, much less to the American public. The problem for liberals today is that they risk becoming confidence men, and nothing but confidence men.

Copyright © 2010 Hillsdale College.

Reprinted by permission from Imprimis, a publication of Hillsdale College.

I have missed a few of the Imprimis publications, so I encourage you to go back at the Hillsdale College link and read them.  This here is truly an inspiring speech, given by a man who I believe is gearing up to begin a presidential campaign.  I like what he says, and if they are his true beliefs, and not just what a man vying for the highest office in the land is saying to manipulate you into supporting him, then I will keep a close eye on Rep. Pence in the months and years to come.

But, as always, I am reluctant to support any candidate these days.  I have such a distrust for politicians that it’s hard for me to trust that Rep. Pence will be the kind of President that he speaks of here in this speech. Time will tell, and as I’ve said, I’ll keep my eye on him.  But if Allen West happens to run for President, I will have then forgotten Mike Pence’s name.

Whatever happens, it’s a good speech and I hope you’ll read it.

Long Live the Republic!

Mike Pence

U.S. Representative

Indiana’s Sixth Congressional District

 

 

The Presidency and the Constitution

MIKE PENCE graduated from Hanover College in 1981 and earned his J.D. from Indiana University School of Law in 1986. After running for Congress in 1988 and 1990, he was named president of the Indiana Policy Review Commission, a state think tank based in Fort Wayne, Indiana, in 1991. He was first elected to Congress from Indiana’s 6th District in 2000 and was most recently elected to a fifth term in 2008. That same year he was elected to serve as House Republican Conference Chairman. During the 109th Congress, he also served as chairman of the House Republican Study Committee, the largest caucus in the House of Representatives.

 

The following is adapted from a speech delivered on the Hillsdale College campus on September 20, 2010.

THE PRESIDENCY is the most visible thread that runs through the tapestry of the American government. More often than not, for good or for ill, it sets the tone for the other branches and spurs the expectations of the people. Its powers are vast and consequential, its requirements impossible for mortals to fulfill without humility and insistent attention to its purpose as set forth in the Constitution of the United States.

 

Isn’t it amazing, given the great and momentous nature of the office, that those who seek it seldom pause to consider what they are seeking? Rather, unconstrained by principle or reflection, there is a mad rush toward something that, once its powers are seized, the new president can wield as an instrument with which to transform the nation and the people according to his highest aspirations.

But, other than in a crisis of the house divided, the presidency is neither fit nor intended to be such an instrument. When it is made that, the country sustains a wound, and cries out justly and indignantly. And what the nation says is the theme of this address. What it says—informed by its long history, impelled by the laws of nature and nature’s God—is that we as a people are not to be ruled and not to be commanded. It says that the president should never forget this; that he has not risen above us, but is merely one of us, chosen by ballot, dismissed after his term, tasked not to transform and work his will upon us, but to bear the weight of decision and to carry out faithfully the design laid down in the Constitution in accordance with the Declaration of Independence.

* * *

The presidency must adhere to its definition as expressed in the Constitution, and to conduct defined over time and by tradition. While the powers of the office have enlarged, along with those of the legislature and the judiciary, the framework of the government was intended to restrict abuses common to classical empires and to the regal states of the 18th century.

Without proper adherence to the role contemplated in the Constitution for the presidency, the checks and balances in the constitutional plan become weakened. This has been most obvious in recent years when the three branches of government have been subject to the tutelage of a single party. Under either party, presidents have often forgotten that they are intended to restrain the Congress at times, and that the Congress is independent of their desires. And thus fused in unholy unity, the political class has raged forward in a drunken expansion of powers and prerogatives, mistakenly assuming that to exercise power is by default to do good.

Even the simplest among us knows that this is not so. Power is an instrument of fatal consequence. It is confined no more readily than quicksilver, and escapes good intentions as easily as air flows through mesh. Therefore, those who are entrusted with it must educate themselves in self-restraint. A republic is about limitation, and for good reason, because we are mortal and our actions are imperfect.

The tragedy of presidential decision is that even with the best choice, some, perhaps many, will be left behind, and some, perhaps many, may die. Because of this, a true statesman lives continuously with what Churchill called “stress of soul.” He may give to Paul, but only because he robs Peter. And that is why you must always be wary of a president who seems to float upon his own greatness. For all greatness is tempered by mortality, every soul is equal, and distinctions among men cannot be owned; they are on loan from God, who takes them back and evens accounts at the end.

It is a tragedy indeed that new generations taking office attribute failures in governance to insufficient power, and seek more of it. In the judiciary, this has seldom been better expressed than by Justice Thurgood Marshall, who said: “You do what you think is right and let the law catch up.” In the Congress, it presents itself in massive legislation, acts and codes thousands of pages long and so monstrously over-complicated that no human being can read through them—much less understand them, much less apply them justly to a people that increasingly feel like they are no longer being asked, but rather told. Our nation finds itself in the position of a dog whose duty it is not to ask why—because the “why” is too elevated for his nature—but simply to obey.

America is not a dog, and does not require a “because-I-said-so” jurisprudence; or legislators who knit laws of such insulting complexity that they are heavier than chains; or a president who acts like, speaks like, and is received as a king.

The president is not our teacher, our tutor, our guide or ruler. He does not command us; we command him. We serve neither him nor his vision. It is not his job or his prerogative to redefine custom, law, and beliefs; to appropriate industries; to seize the country, as it were, by the shoulders or by the throat so as to impose by force of theatrical charisma his justice upon 300 million others. It is neither his job nor his prerogative to shift the power of decision away from them, and to him and the acolytes of his choosing.

Is my characterization of unprecedented presumption incorrect? Listen to the words of the leader of President Obama’s transition team and perhaps his next chief-of-staff: “It’s important that President-Elect Obama is prepared to really take power and begin to rule day one.” Or, more recently, the latest presidential appointment to avoid confirmation by the Senate—the new head of the Consumer Financial Protection Bureau—who wrote last Friday: “President Obama understands the importance of leveling the playing field again.”

“Take power. . .rule. . .leveling.” Though it is the model now, this has never been and should never again be the model of the presidency or the character of the American president. No one can say this too strongly, and no one can say it enough until it is remedied. We are not subjects; we are citizens. We fought a war so that we do not have to treat even kings like kings, and—if I may remind you—we won that war. Since then, the principle of royalty has, in this country, been inoperative. Who is better suited or more required to exemplify this conviction, in word and deed, than the President of the United States?

* * *

The powers of the presidency are extraordinary and necessarily great, and great presidents treat them sparingly. For example, it is not the president’s job to manipulate the nation’s youth for the sake of his agenda or his party. They are a potent political force when massed by the social network to which they are permanently attached. But if the president has their true interests at heart he will neither flatter them nor let them adore him, for in flattery is condescension and in adoration is direction, and youth is neither seasoned nor tested enough to direct a nation. Nor should it be the president’s business to presume to direct them. It is difficult enough to do right by one’s own children. No one can be the father of a whole continent’s youth.

 

Is the president, therefore, expected to turn away from this and other easy advantage? Yes. Like Harry Truman, who went to bed before the result on election night, he must know when to withdraw, to hold back, and to forgo attention, publicity, or advantage.

 

There is no finer, more moving, or more profound understanding of the nature of the presidency and the command of humility placed upon it than that expressed by President Coolidge. He, like Lincoln, lost a child while he was president, a son of sixteen. “The day I became president,” Coolidge wrote, “he had just started to work in a tobacco field. When one of his fellow laborers said to him, ‘If my father was president I would not work in a tobacco field,’ Calvin replied, ‘If my father were your father you would.’” His admiration for the boy was obvious.

Young Calvin contracted blood poisoning from an incident on the South Lawn of the White House. Coolidge wrote, “What might have happened to him under other circumstances we do not know, but if I had not been president. . . .” And then he continued,

“In his suffering he was asking me to make him well. I could not. When he went, the power and glory of the Presidency went with him.”

A sensibility such as this, and not power, is the source of presidential dignity, and must be restored. It depends entirely upon character, self-discipline, and an understanding of the fundamental principles that underlie not only the republic, but life itself. It communicates that the president feels the gravity of his office and is willing to sacrifice himself; that his eye is not upon his own prospects but on the storm of history, through which he must navigate with the specific powers accorded to him and the limitations placed on those powers both by man and by God.

* * *

The modern presidency has drifted far from the great strength and illumination of its source: the Constitution as given life by the Declaration of Independence, the greatest political document ever written. The Constitution—terse, sober, and specific—does not, except by implication, address the president’s demeanor. But this we can read in the best qualities of the founding generation, which we would do well to imitate. In the Capitol Rotunda are heroic paintings of the signing of the Declaration of Independence, the victory at Saratoga, the victory at Yorktown, and—something seldom seen in history—a general, the leader of an armed rebellion, resigning his commission and surrendering his army to a new democracy. Upon hearing from Benjamin West that George Washington, having won the war and been urged by some to use the army to make himself king, would instead return to his farm, King George III said: “If he does that, he will be the greatest man in the world.” He did, and he was.

To aspire to such virtue and self-restraint would in a sense be difficult, but in another sense it should be easy—difficult because it would be demanding and ideal, and easy because it is the right thing to do and the rewards are immediately self-evident.

A president who slights the Constitution is like a rider who hates his horse: he will be thrown, and the nation along with him. The president solemnly swears to preserve, protect, and defend the Constitution. He does not solemnly swear to ignore, overlook, supplement, or reinterpret it. Other than in a crisis of existence, such as the Civil War, amendment should be the sole means of circumventing the Constitution. For if a president joins the powers of his office to his own willful interpretation, he steps away from a government of laws and toward a government of men.

Is the Constitution a fluctuating and inconstant document, a collection of suggestions whose purpose is to stimulate debate in a future to which the Founders were necessarily blind? Progressives tell us that even the Framers themselves could not reach agreement in its regard. But they did agree upon it. And they wrote it down. And they signed it. And they lived by it. Its words are unchanging and unchangeable except, again, by amendment. There is no allowance for a president to override it according to his supposed superior conception. Why is this good? It is good because the sun will burn out, the Ohio River will flow backwards, and the cow will jump over the moon 10,000 times before any modern president’s conception is superior to that of the Founders of this nation.

Would it be such a great surprise that a good part of the political strife of our times is because one president after another, rather than keeping faith with it, argues with the document he is supposed to live by? This discontent will only be calmed by returning the presidency to the nation’s first principles. The Constitution and the Declaration should be on a president’s mind all the time, as the prism through which the light of all question of governance passes. Though we have—sometimes gradually, sometimes radically—moved away from this, we can move back to it. And who better than the president to restore this wholesome devotion to limited government?

* * *

And as the president returns to the consistent application of the principles in the Constitution, he will also ensure fiscal responsibility and prosperity. Who is better suited, with his executive and veto powers, to carry over the duty of self-restraint and discipline to the idea of fiscal solvency? When the president restrains government spending, leaving room for the American people to enjoy the fruits of their labor, growth is inevitable. As Senator Robert Taft wrote: “Liberty has been the key to our progress in the past and is the key to our progress in the future…. If we can preserve liberty in all its essentials, there is no limit to the future of the American people.”

 

Whereas the president must be cautious, dutiful, and deferential at home, his character must change abroad. Were he to ask for a primer on how to act in relation to other states, which no holder of the office has needed to this point, and were that primer to be written by the American people, whether of 1776 or 2010, you can be confident that it would contain the following instructions:

You do not bow to kings. Outside our shores, the President of the United States of America bows to no man. When in foreign lands, you do not criticize your own country. You do not argue the case against the United States, but the case for it. You do not apologize to the enemies of the United States. Should you be confused, a country, people, or region that harbors, shelters, supports, encourages, or cheers attacks upon our country or the slaughter of our friends and families are enemies of the United States. And, to repeat, you do not apologize to them.

Closely related to this, and perhaps the least ambiguous of the president’s complex responsibilities, is his duty as commander-in-chief of the military. In this regard there is a very simple rule, unknown to some presidents regardless of party: If, after careful determination, intense stress of soul, and the deepest prayer, you go to war, then, having gone to war, you go to war to win. You do not cast away American lives, or those of the innocent noncombatant enemy, upon a theory, a gambit, or a notion. And if the politics of your own election or of your party intrude upon your decisions for even an instant—there are no words for this.

More commonplace, but hardly less important, are other expectations of the president in this regard. He must not stint on the equipment and provisioning of the armed forces, and if he errs it must be not on the side of scarcity but of surplus. And he must be the guardian of his troops, taking every step to avoid the loss of even a single life.

The American soldier is as precious as the closest of your kin—because he is your kin, and for his sake the president must, in effect, say to the Congress and to the people: ÒI am the Commander-in-Chief. It is my sacred duty to defend the United States, and to give our soldiers what they need to complete the mission and come home safe, whatever the cost.

If, in fulfilling this duty, the president wavers, he will have betrayed his office, for this is not a policy, it is probity. It is written on the blood-soaked ground of Saratoga, Yorktown, Antietam, Cold Harbor, the Marne, Guadalcanal, the Pointe du Hoc, the Chosin Reservoir, Khe Sanh, Iraq, Afghanistan, and a thousand other places in our history, in lessons repeated over and over again.

* * *

The presidency, a great and complex subject upon which I have only touched, has become symbolic of overreaching. There are many truths that we have been frightened to tell or face. If we run from them, they will catch us with our backs turned and pull us down. Better that we should not flee but rather stop and look them in the eye.

What might our forebears say to us, knowing what they knew, and having done what they did? I have no doubt that they would tell us to channel our passions, speak the truth and do what is right, slowly and with resolution; to work calmly, steadily and without animus or fear; to be like a rock in the tide, let the water tumble about us, and be firm and unashamed in our love of country.

I see us like those in Philadelphia in 1776. Danger all around, but a fresh chapter, ready to begin, uncorrupted, with great possibilities and—inexplicably, perhaps miraculously—the way is clearing ahead. I have never doubted that Providence can appear in history like the sun emerging from behind the clouds, if only as a reward for adherence to first principles. As Winston Churchill said in a speech to Congress on December 26, 1941: “He must indeed have a blind soul who cannot see that some great purpose and design is being worked out here below, of which we have the honor to be the faithful servants.”

As Americans, we inherit what Lincoln in his First Inaugural called “the mystic chords of memory stretching from every patriot grave.” They bind us to the great and the humble, the known and the unknown of Americans past—and if I hear them clearly, what they say is that although we may have strayed, we have not strayed too far to return, for we are their descendants. We can still astound the world with justice, reason and strength. I know this is true, but even if it was not we could not in decency stand down, if only for our debt to history. We owe a debt to those who came before, who did great things, and suffered more than we suffer, and gave more than we give, and pledged their lives, their fortunes, and their sacred honor for us, whom they did not know. For we “drink from wells we did not dig” and are “warmed by fires we did not build,” and so we must be faithful in our time as they were in theirs.

Many great generations are gone, but by the character and memory of their existence they forbid us to despair of the republic. I see them crossing the prairies in the sun and wind. I see their faces looking out from steel mills and coal mines, and immigrant ships crawling into the harbors at dawn. I see them at war, at work and at peace. I see them, long departed, looking into the camera, with hopeful and sad eyes. And I see them embracing their children, who became us. They are our family and our blood, and we cannot desert them. In spirit, all of them come down to all of us, in a connection that, out of love, we cannot betray.

They are silent now and forever, but from the eternal silence of every patriot grave there is yet an echo that says, “It is not too late; keep faith with us, keep faith with God, and do not, do not ever despair of the republic.”

Reprinted by permission from Imprimis, a publication of Hillsdale College.