the state of the union

I'm not quite sure what to think. He seems to be moving back to the middle, talking about things like tax cuts and competition and so forth, and that's a good thing. But he's very, very diffuse and seems weirdly detached from the political environment, a little bit like he was still a candidate rather than a second-year president. I still think he needs to reshuffle his staff so as to offload the job of prime minister and focus on what he does best: providing a general theme and direction to the country that many, though not all, people remain enthusiastic about. But at least he seemed less ideological which is a step in the right direction.

a bad week for the liberal consensus

When I went to law school in the late 70s-early 80s we learned a pretty coherent view of the world. Religion, and values generally, were private matters. The economy was capitalist, but that was OK, because the long-term trend was toward more Government intervention on behalf of the poor and defenseless and likely to stay that way. Individual rights--the right to birth control, abortion, sexual preference, and a virtually unlimited right of free speech--would continue to grow, with the First Amendment, which some of us suspected was the real religion in New Haven, casting its protective light over every person and every idea. Some of us suspected that this worldview was a little thin and (perhaps) hypocritical: for example, the supposedly liberal faculty contained one woman and no minorities, while the vast majority of the supposedly enlightened students seemed to wind up at corporate law firms. The election of Ronald Reagan, which seemed to contradict nearly all of the existing tendencies, was likewise a discordant note. But (with apologies to Harry Chapin) there were planes to catch and bills to pay, along with high-paying jobs awaiting: other than leaving a few petitions lying on the Dean's chair I don't remember complaining much.

This week's events showed just how far that comfortable worldview has deteriorated. It's not just that a populist conservative won Ted Kennedy's Senate seat in Massachusetts and put a temporary if not permanent end to the health care legislation. (Kennedy was so respected in law school that I remember a serious debate over whether we would take the blame if he, or a member of his family, got yet another woman into trouble.) As if to add insult to injury, the Supreme Court--displaying the very interventionist attitude that liberals used to love--put another nail in the coffin of campaign finance reform in the Citizens United case. That a then Yale professor and later Federal judge (Ralph Winter) was the brains behind the original challenge to campaign finance laws, in Buckley v. Valeo, made the irony all the more poignant.

It was strange, and not a little bit pathetic, to watch liberals try to "spin" the Massachusetts election into an argument for more aggressive pursuit of health care reform, followed quickly by an attempt to discredit the Supreme Court for (in their view) an overly expansive interpretation of First Amendment rights. It may be that they are right on a technical level. Citizens United is indeed a somewhat reckless (if also predictable) decision; and there is something odd about a State Senator who supported the Massachusetts health reform getting elected by opposing its Federal equivalent.

And yet it is the liberals' own hypocrisy that is largely responsible for these setbacks. Having tolerated, or even profited from, an economic system that rewards a few people (largely their own graduates) while leaving little for everyone else, they are now surprised to see the public rise up in a fit of entirely understandable, if at times misdirected, anger. Having created and sustained an absurd political system, in which wealthy or famous individuals and families could effectively buy political power but others were restricted by incomprehensible campaign laws, they are now shocked and surprised to see that system collapsed. Having taught their students that what mattered was not the substance of their values, but the freedom to express them, they are now surprised that the society is all freedom and no or very little substance.

The professors that we most respected in law school were the few who either retained their own personal values, like Arthur Leff or Bob Cover, or those (I am thinking of Marvin Chirelstein in particular) with an ability to retain their sense of humor and not take anything too seriously. For some unknown reason the first two of these died much too young. Here's hoping there are others like them out there . . . or at least someone who knows how to keep people laughing.

china, google, and tom friedman

In the "same newspaper, same day" category: Tom Friedman has a column today on how effectively China's leaders are managing their economy, while page A1 of the Times has a story on how Google--not known for political courage--may leave China in response to censorship by the Chinese Government. It seems that someone, presumably with Government approval, launched a sophisticated barrage of cyberattacks aimed at shutting down the gmail [Google] accounts of political dissidents. The Times and other news outlets reported the story . . . and were themselves censored by the Chinese authorities.

One has to wonder, if China is doing so well, what are the authorities so afraid of? One possibility is that they are smarter than their western admirers, and recognize that the latest crop of positive statistics (China passes Japan, Chinese buy more cars than Americans) may be less significant than sometimes thought: or, to borrow the language of financial prospectuses, past performance is no guarantee of future results. It may be that there are simply too many censors in China with too little work to do. Whatever the case, it would seem that the time for wide-eyed, 1960s-style fawning over Chinese achievements should be long past: and the time for realistic assessment, which recognizes the magnitude of Chinese accomplishments but also how far the country still has to go, long overdue.

plus ca change plus ca change

As we get older it sometimes seems, as the French say, "plus ca change, plus c'est la meme chose:" the more things change, the more they stay the same. But sometimes we are reminded that things change faster than we care to admit. Two recent experiences highlighted this for me.

First, I decided to watch "The Candidate," a 1974 or so Robert Redford movie, together with my politically addicted son. He noticed the politics and campaign strategy. I noticed the large American cars, the cigarettes, and the fact that everyone--including or perhaps especially the "liberal" politicians--completely ignored anything that women said on any subject. Was this only 35 years ago, and did this really seem normative to us so recently?

The second occurred when I spellchecked a short article I was writing on electoral reform. The spellchecker, which can't be more than ten years old, rejected the words "Barack," "Obama," and "Palin" outright; rendered "cellphone" as "cellophane"; and insisted that "youtube" consisted of two separate words. Did we really do without this things, and how then did we survive?

Maybe things just seem to stay the same because we read back the present into the past. My kids have this delightful way of beginning sentences with phrases like "in the old days, you know, around 2005." Perhaps they know more than we think they do.

the supreme court and the health care bill

The blogosphere, including but not limited to our friends at Balkinization, has lately been alive with talk about a hypothetical constitutional challenge to the now all-but-inevitable health care bill. Would the Supreme Court have the temerity to strike the law down, and (if so) how would or should "progressives" (that is, Democrats) react?

So far as I can tell there are two principal constitutional dangers. The first is that the whole bill might be held unconstitutional because it requires people to buy health insurance they don't want from private vendors. The second is that the so-called "Nebraska compromise," by forcing other states to (effectively) pay Nebraska's medicaid costs, might be unconstitutional and (assuming the bill was not severable) take the rest of it down too. Neither of these arguments is likely to convince liberal professors, but the Supreme Court isn't particularly liberal. Should it decide to overturn the bill, various bloggers (notably Sanford Levinson) are suggesting various forms of defiance, which they support with allusions ranging from Bush v. Gore to Dred Scott, Plessy, and other low points of constitutional adjudication.

I'm not a constitutional lawyer, and I'm not especially liberal, so to some degree is simply entertainment for me (so far). But I would make a couple of points:

1. I'm not convinced that the constitutional argument against the law is so weak, or at least, that it is necessarily inconsistent with existing precedents in the Scalia (sorry, Roberts) Court. Certainly the Court--or a portion of it--has been aggressive in its approach to federalism and limitations on Government power. Unlike Bush v. Gore, then, there seems to be a genuine issue of principal rather than politics at stake.

2. Nor would a holding against the bill necessarily be counter-majoritarian, to use a favorite academic term. Most of the country doesn't seem to like the bill very much, as expressed in numerous opinion polls. Indeed, one of the principal reasons Democrats are rushing it is to finish before they're voted out (maybe) next year.

3. It's entertaining, but also a bit scary, to see prestigious professors argue that everything in the way of the health bill--the Senate rules, the Supreme Court, public opinion itself--be treated as an obstacle to overcome rather than a precedent to be respected. Advocates are paid to take whatever position is in their clients' interest. Scholars are expected to do better, and their repeated willingness to adopt an "ends over means" jurisprudence is chilling and dangerous. If the Democratic Congress and President are voted out of office, will they find a reason to ignore that result too?

Not especially relevant, but I'm especially entertained by the role of Yale professors (not including Levinson) in arguments of this type. I attended Yale in the late 70s-early 80s, where professors celebrated exactly the kind of Supreme Court activism that they now condemn. These "progressives" also presented us with a faculty that had no minorities and one woman among thirty or more tenured members (the Dean explained helpfully that the school would not compromise its standards in order to hire such people). There is a book out there that says schools like Yale are neither liberal nor conservative but merely trendy, taking whatever positions they believe will appeal to elite applicants and potential future donors. If the shoe fits, wear it.