The Light And Dark Of Conservatism

I chose to listen to the immediate reaction to the Supreme Court’s ruling today on Fox “News” Channel. And, of course, I wasn’t disappointed. The spin began immediately, particularly the idea that this is really a win for Romney, who will find his base newly “energized,” just like in the 2010 election.

Well, that may be right, but what struck me about the right’s reaction to the ruling is just how far conservatism, as a philosophy, has strayed from its parenting.

If political conservatism has any legitimacy at all, that legitimacy is found in conservatism’s traditional  respect for, and interest in maintaining, social stability. This implies a resistance to radicalism and opposition to those who would seek to disrupt an otherwise stable social order.

That traditional stance of conservatism is what originally attracted me to it, way back when I called myself one. And it is that centuries-old conservative posture that radicals and extremists like Justice Antonin Scalia and Clarence Thomas and Rush Limbaugh have undermined, if not completely eradicated. In short, what we see from the right these days would shock conservatism’s father, Edmund Burke.

I say all that to say that it turns out that the real conservative, among those on the Supreme Court who generally are called conservative, turns out to be John Roberts.

Justice Roberts joined the four “liberal” justices (more about that another day; judging by this decision, I see only two consistent “liberals” on this court, Ginsburg and Sotomayor) in the decision to uphold the constitutionality of the insurance mandate in the Affordable Care Act.

Granted, Roberts found the constitutionality of the mandate by essentially not interpreting it as a mandate at all, but as a tax levied on those who choose not to buy health insurance. And it is in that interpretation that Roberts actually exercised the restraint that conservatives are famous for advocating, but infamous for failing to honor when it goes against their political preferences.

Roberts wrote of the ACA:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

That, my friends, is the stance of a conservative jurist, one who is willing to honor his principles even if it means offending his own politics, or his own party. Cited in the majority opinion today was Hooper v. California, which included this language:

…every reasonable construction must be resorted to, in order to save a statute from unconstitutionality…

Again, that is how a conservative should look at his job of interpreting a law passed by the people’s representatives, the Congress. That is the opposite of a Scalia, who pretends to adhere to some lofty principle of originalist interpretation, but who really is a radical who refuses to find any construction of a statute that would save it from unconstitutionality—if he doesn’t like the statute in question. And we knew he didn’t like it from the oral arguments, during which he absolutely embarrassed himself as a jurist.

It would have been remarkable, and a small step towards getting extremists like Rush Limbaugh to sober up a little bit, if Scalia—one of Limbaugh’s intellectual heroes—had railed against the law all he wanted, but found, as Roberts did, a legitimate constitutional hook—and the taxing power of the federal government is legitimate and constitutional—to hang the ACA on.

But, no, the heavy lifting was left to John Roberts, who in his conservative reading of the Constitution rejected (wrongly, in my view) the government’s first rationale for the mandate (the Commerce Clause) and its second rationale for the mandate (the Necessary and Proper Clause), but found merit in its third rationale for the mandate, the taxing power of the government.

In other words, Roberts gave deference to the Constitution itself, which prioritizes the will of the people as expressed through the people’s Congress, instead of his own policy inclinations and judgments.

If that kind of conservatism were the kind dominating the Republican Party today, this country would be a much better place to live, and would have a much greater hope of maintaining a stable—and ultimately just—social order.

Alas, as Fox “News” and Mitt Romney and the right-wing punditry make clear, as they drone on about this dark day, conservatism itself is in a very dark place.


  1. ansonburlingame

     /  June 28, 2012


    I have already posted my own view of this decision. Based on calling the ACA mandate a TAX makes it an easy decision that even I would have agreed upon. Congress for sure has the power to levy taxes, just about any taxes they choose to levy.

    I have yet to read the decision or the dissent but I suspect the dissent will argue that the legistative record shows that it was NOT Congresses INTENT to levy a tax and instead used the commerce clause to authorize that legislation. The Court struck down that rational it seems, using the commerce clause to make people buy “stuff”.

    I completely accept the SCOTUS ruling and say now lets move FORWARD to consider the essential question of how to deliver HC to all Americans and PAY FOR such worthwhile efforts.
    You and I will strongly disagree over how to do that, provide and pay for HC to all Americans but that is a political argument now, not a legal one. SCOTUS has said Congress can raise taxes to pay for it, a simple call in my view. But a tax is a tax, whether progressives call it such or not, it seems to me.

    They can call it what they like on the “evening news” but they got called on that “spin” by SCOTUS today,

    So be assured in the coming and ongoing political debate about the real issue, HC for all Americans, I will read your suggestions but will emphasize and ask how you will TAX Americans, any Americans to achieve a worthy goal.



  2. Duane,

    I applaud your thoughts on the sad state of Republican conservatism these days and how it seems to be moving vigorously and inexorably to the right of John Birch and Attila The Hun. That’s one reason I left the GOP in 1979. But even since then, as you aptly point out, it has gotten much worse.

    I ran across a quote the other day (you know how I love them quotes) that describes, accurately I think, the right wing nuts like Limbaugh and Beck and Hannity and Coulter and the Tea Partiers, and their ilk. Anyway, here’s the quote:

    “. . . never admit a fault or wrong; never concede that there may be some good in your enemy; never leave room for alternatives; never accept blame; concentrate on one enemy at a time and blame him for everything that goes wrong; people will believe a big lie sooner than a little one; and if you repeat it frequently enough people will sooner or later believe it.”

    This quote came from a 1943 report by Walter C. Langer to the Office of Strategic Services (later the CIA) which was part of a psychological analysis of Adolf Hitler. Now, I don’t use the Hitler reference lightly. But the penumbra of that quote seems to fall easily on the Neo-Cons, IMHO.

    Likewise, this perversion of political philosophy taints the main stream Republicans who are willing to work with the Democrats in moving the country forward. In that regard, it ought to be clear too that a Goldwater, a Reagan, or a Dole would never make it through the primaries these days, given their propensity for promoting country over party.

    But the most disturbing part of the right wing extremism is that it reveals where Romney will get his marching orders if he wins. Against this possibility, the debate over health care becomes trivial.



    • Herb,

      That is a fantastic quote, one which aptly describes the state of right-wing media, both television and radio.

      And speaking of Republicans who are “willing to work with the Democrats in moving the country forward,” I was mildly pleased at our own Roy Blunt’s appearance Thursday morning on The Daily Rundown with Chuck Todd on MSNBC. He actually suggested that it is time that folks realize that they can’t get everything they want and must be willing to settle for less than that.

      While I think Roy Blunt has been part of the problem, I do realize that there is a teensy-weensy bit of pragmatism in his makeup, and I am hopeful that reality will fan it into a flame.

      As for Romney and his marching orders, I am on record as saying that what is so damn scary about him is precisely what you say. Because he is running for office simply to hold the office, if he is successful he will do any goddamn thing it takes to please the people he believes put him there–the extremists. Scary, indeed.



  3. Jane Reaction

     /  June 28, 2012

    Randy and Herb: I have probably a one inch stack of old RNC Sustaining Member and other GOP cards myself piled up to about 8 years ago. I am thinking now of building a little ‘house of cards’ to burn them in effigy.


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