Institutionalism vs. Constitutionalism

As I keep saying, there are different kinds of conservatism.  Michael Gerson makes that point in his discussion of Supreme Court Justice John Roberts’ ruling on Obamacare:

His health-care ruling did expose a division between two varieties of judicial conservatism — institutionalism and constitutionalism — that can lead to very different outcomes.

Roberts has emerged as the great institutionalist, concerned primarily about the place of the Supreme Court in American political life. In this view, the court maintains its power by exercising it sparingly — deferring whenever possible to the legislative branch. Institutionalism embodies a temperamental conservatism — a commitment to continuity, humility and prudence.

The main constitutionalists on the court are Antonin Scalia and Clarence Thomas, focused on the rigorous application of the words of the founding document. In this view, the meaning of the text is primary, whatever the political consequences of applying it. Constitutionalism is often accompanied by an understandable complaint: If the conservative response following every period of liberal activism is humility and continuity, then the ideological ratchet turns only leftward.

My natural sympathies are with institutionalism as an antidote to judicial arrogance. Donning a black robe does not assume or create a superior knowledge of public policy. Roberts’s desire to defer, particularly on a divisive issue in the middle of a presidential election, is the right tendency, the correct Burkean instinct.

But judges are also not hired as political philosophers, Burkean or otherwise. Their legitimacy comes from a credible application of the law. And the outcome of the health care case came down to one point of law: Roberts’s interpretation of the statute as a constitutional tax rather than an unconstitutional mandate. In his ruling, Roberts admits this view is hardly the most obvious one: “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.”

The problem is that Roberts’s interpretation is not fairly, or even remotely, possible. If the law had been written in the Roberts version — as a regressive federal tax on the uninsured — there is no chance it would have passed Congress. More to the point, the law that Roberts describes would have covered a different number of the uninsured. Academic studies indicate that people respond differently to tax penalties than they do the legal mandates. “When the imperative to buy insurance,” notes Yuval Levin, “is instead presented as a choice between two options, more people will likely choose the cheaper option (which, for almost everyone, will be paying the tax rather than buying the coverage).”

Why did Roberts not account for this policy distinction? The most natural interpretation is that he didn’t know anything about it. Which is precisely the point. Roberts is not a health policy expert. His clever reinterpretation of the health law would actually change its outcome. This is not an alternate reading but an alternate universe.

Even in a short time, Roberts’s decision has not worn well. What initially seemed wise now smacks of mere cleverness — less a judge’s prudence than a lawyer’s trick. To find the health-care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king — hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.

via Michael Gerson: John Roberts’s alternate universe – The Washington Post.

Lots of good lines here:  Outcome-based jurisprudence.  Obamacare as a tax on the uninsured.  Fairly-possible interpretations.

I don’t know that a Burkean kind of conservative–one who is protective of traditions, institutions, and culture–would really defer to such a recent decision that has not yet become a tradition.

Still, what do you think of this philosophical dichotomy?  Where else do you see it?

Parade politics

We went to the 4th of July parade here in our small northern Virginia town.  I love the way such institutions usually include politicians marching down the parade route, waving and smiling to voters no matter how hot it gets.  It is a sign of American liberties that we don’t have to kiss up to our rulers–our rulers have to kiss up to us!

Anyway, Virginia is one of those battleground states, a toss-up that will help determine who wins the presidential election.  There are many polls, which are inconclusive.  I will offer political observers a bit of evidence from the parade.  When the Democratic Party contingent came by with their cool cars, pro-Obama signs, and supporters handing out Obama tracts, NO ONE CLAPPED.  The crowd was pretty boisterous otherwise, with everybody applauding each float and firetruck and antique car.  But when the Obama people marched by, an ominous silence accompanied them up and down the parade route.  I felt embarrassed for them.  I at least waved.

Now when the corresponding group of Republicans with their pro-Romney signs marched by, there was some applause, though it seemed notably unenthusiastic.

My impression is that, based on the parade sampling, Virginia voters a aren’t wild about Romney, but they like him better than Obama.

We’ll see how that stands up on election day.

Andy Griffith, Moravian

Andy Griffith died at age 86.  It turns out, he was Moravian, a church with Reformation roots going back to John Hus, with a big influence of Lutheran Pietists.  From journalist Andrew Herrmann:

Griffith’s story was rooted in the Moravian Church, a Christian sect started in Eastern Europe that sent missionaries to the U.S. in the 1700s — one group founded Winston-Salem, N.C. As a teenager, Griffith was attracted to Grace Moravian Church in Mount Airy, N.C. because the minister gave music lessons. Grace had a brass band and Griffith wanted to play the trombone.

Griffith studied to become a Moravian clergyman at the University of North Carolina at Chapel Hill and, after a semester or two, he asked his bishop if he could prepare for the ministry by majoring in music. The bishop said no.

Griffith dropped the idea of becoming a pastor, but he eventually took his brand of preaching to a different venue: “The Andy Griffith Show,” a weekly, half-hour morality play about life in a small town.

There were winks and nods to his faith: The local All Souls Church was led by the Rev. Hobart M. Tucker — he of the unforgettable sermon: “Dice Are Loaded Against the Evil Doer.” Another episode featured American and Russian diplomats meeting in the basement of Mayberry’s Moravian Church.

On Tuesday, hours after the news of Griffith’s death, Tony Haywarth, Grace Moravian Church’s current pastor, put out a statement thanking God “for the place Andy has in our hearts, for his wonderful Christian ministry, and for the joy he continues to bring into this world.”

via ‘Do the right thing’ — Andy Griffith left lessons for the greater good – Chicago Sun-Times.

I would argue that The Andy Griffith Show–with Sheriff Taylor, Barney Fife, Aunt Bee, Opie, Gomer, and even more brilliant comic characters–was NOT mere cornpone nostalgia, as it is often portrayed, but one of the greatest comedies in the history of television.

An explication of “The Star Spangled Banner”

David P. Goldman offers a close reading of our national anthem, which is not just a hard-to-sing-song but a striking and meaningful poem, one that connects the survival of Ft. McHenry during the War of 1812 to the survival of the nation in every generation:

. . .It behooves us to sing a national anthem that begins and ends with questions. In this respect, “The Star-Spangled Banner” is an unusual poem. To begin a poem with a rhetorical question is a common enough device (“Why! Who makes much of a miracle?,” “What is so rare as a day in June?” or “Who rides in the night through wind and wild?”). Key’s opening question, though, is not rhetorical, but existential. The hearer from whom the poet demands a response has kept the poet’s company in an anxious vigil. The question itself thus places the hearer alongside the poet in that vigil.

The poet withholds the name of the object we are trying to espy in the first light: It is “what so proudly we hailed,” “whose broad stripes and bright stars” streamed valiantly over the rampart as the poet and his interlocutor watched through the perilous night. And this precious thing could be glimpsed intermittently only by the light of the enemy’s munitions, through the glare of rockets and the flash of exploding bombs: these, the missiles of the foe, gave proof through the night that the our flag — at last the object is named — was still there.

But now the first light of the dawn has come. The bombardment has ceased. The poet asks that the listener say whether, in the dim sunrise, he still can see the flag above the ramparts. It is an anxious moment; the hearer has watched through the night to see if the US position has held or fallen; in a few moments he will see in the first light of day whether the flag is still there. All the fears of the nightly vigil are bound up in this moments of anticipation. Even more: the hopes and fears of generations hang upon what the hearer will see as day breaks..

And then the poet repeats the injunction “Say!” and changes the question. The opening question — can you still see our flag? — is a synecdoche of sorts for a bigger question — does that flag “yet wave/O’er the Land of the Free and the Home of the Brave”? The second question refers not only to the battle at hand, but to the destiny of the country. The question is not only whether the flag of freedom still flies over America but also whether America itself is still brave and free.

The fearful vigil through the nocturnal bombardment, the fleeting glimpse of the national colors, the moment of truth in the gathering light of dawn — these are a metaphor for the national condition. The flag enduring the enemy bombardment is only a symbol for the true subject of the poem, namely the reaction of the hearer himself. The opening “Say!” placed us at the poet’s side at dawn; the second “Say!” makes this a metaphor for the national condition. Key addresses the second “Say!” to all generations of Americans: Are you still brave enough to be free? Your national existence, implies the poet, will be a long vigil, in which America’s true character will be glimpsed sporadically in the reflection of enemy attacks.

Again, Key’s question is not rhetorical, but existential: the answer to the question depends on the response of we who hear it. There are few instances of the second person in poetry with which to compare this, although the device is very ancient. A few come to mind. One is the Song of Deborah in Judges 5:2. Another is Simonides’ epitaph for the three hundred Spartans who held the pass against the Persians at Thermopylae in 480 BC. “O passer-by: tell the men of Lacedaemon that we died doing our duty.” The poignancy of the epitaph is that these dead men must ask a passer-by to bring the news to their homeland. The reader of the epitaph figuratively becomes the messenger. In John Donne’s familiar “Ask not for whom the bell tolls/It tolls for thee,” the subject becomes not death in general, but the very personal death of the hearer. And the second-person address in Francis Scott Key’s anthem asks each of us: “Are you good enough to be an American?” It is a question we should ask ourselves every day.

via Spengler » A National Anthem that Begins and Ends with a Question.


Happy Fourth of July!

I remember growing up in a culture of patriotism.  Community events would feature patriotic speeches.  Politicians of all parties would wax eloquent about the greatness of America.  In school we actually had classes on “Americanism” in which we learned about American heroes, studied the principles of democracy, analyzed the virtues of free market capitalism, and lauded the distinct American ideology of liberty, equality, and individualism.  We also learned all about flag etiquette.

I now see that much of that was a reaction to the Cold War and to the ideological conflict with Communism.  (This was in the late 1950s and early 1960s.)  I also see quite a bit of idolatrous civil religion.  Still, there is a virtue in loving one’s country, and I remember the thrill I experienced upon first seeing the monuments and historic buildings of Washington, D.C.

Does any of that kind of patriotism still exist any more?

Of course then came the Viet Nam war.  The nation was split generationally and culturally more than politically, at least at first.  (The president who presided over that war was arguably the most liberal of them all, Lyndon Baines Johnson, and most Democrats, such as those in my hometown–we had never met a Republican–were all for him.)  But, by the time I was in college, my peers mostly opposed the war and grew cynical about America, to the point of out-and-out anti-Americanism.

The other side with its patriotism turned kind of nasty too, with its “America, Love It or Leave It” bumper stickers and its “My Country, Right or Wrong” loyalties.

Then came further disillusionment with Nixon, then Carter’s “malaise.”  But Ronald Reagan made  it possible to “feel good about America again.”  The end of the Cold War with the decisive victory of American ideals over those of Communism made us giddy with patriotism.

Today, though, I don’t see much of that.  The left is still cynical about America, but now that can increasingly be said also of the right.  The anti-government fervor is so strong that it sometimes bleeds over to complaints about our institutions, our history, and our culture.

When some of these folks do praise America, they do so because they say it gives them freedom.  But that’s a love of freedom, rather than a love of country per se, with America treated as an instrumental good, rather than as something good in itself.

Does any of the old-style patriotism still exist?  Should it exist, or is its passing a good thing?  Is nationalism too atavistic, too potentially war-like, to be encouraged too much?  Or is there a love of country that needs to be preserved and possibly even taught in schools?

“I love my country, it’s the government I’m afraid of”

Tourist shops here in the D.C. area sell a t-shirt that says, “I love my country, it’s the government I’m afraid of!”  (sic, the comma splice)   I believe it was first worn by liberals opposed to George W. Bush.  Now it’s being worn by conservatives opposed to Barack Obama.  (I present this as evidence for my assertion that both liberals and conservatives have become cynical when it comes to patriotic ideals.)

Now I understand the point.  It’s possible to love America with its purple mountain majesties, its history, its people, and its ideals while being utterly opposed to the government.  That’s a commendable distinction.  At the same time, in a democratic republic, the people choose their leaders and elect their government, so there is going to be a connection between the country and the government.  There is a fine line between hating a nation’s government and hating the nation.

In the older patriotism of my childhood, which I talk about in that other post, there was a palpable distinction–parallel to the rejection by orthodox Christianity of the Donatist heresy–between the office and the person who holds the office.  Critics respected the office of the presidency or of a Senator or Congressman, even if they attacked a particular office holder.  A person might complain about politicians in Washington, but not “Congress” as a whole.

Today. . . .I don’t know.  I worry about the preservation of our institutions if hardly anyone has any respect for them.

I suppose some people are afraid of their country–thinking the American people are essentially racist, plutocratic, and oppressive– but love their government, which they want to protect them from society.  Is there a similar danger in the sentiment on the t-shirt?