Making Sense of the Obamacare Ruling

Supreme Politics

Anyone who honestly thinks that the Supreme Court is above politics holds a pleasantly naive understanding of the law and political science.  This includes Justice Scalia to the extent that he's serious when he says that the Court doesn't consider politics (although I think he's just attempting to maintain the useful myth that the Court simply cannot be affected by politics).  Ideally, the Supreme Court would be completely free to stand firm on rules of law and bend the public to those standards.  However, as I believe I have discussed earlier, all rights (and indeed all laws) are only upheld by the Court to the extent that 1) the Court has a reason to believe that it should uphold those particular rights (or laws), and 2) the Court will not face a catastrophic loss of legitimacy as a result of upholding those rights (or laws).  The fact that our rights can be subject to infringement by political pressure certainly justifies removing the Court from that political pressure, and that is why the Supreme Court is the least political of all the branches.  But the reality is that if the Congress and the President can enact laws and enforce them with broad public support and over the objections of the Court, then all rule of law is forfeited for a time.  Some instances of this are President Jackson simply ignoring the judicial branch and forcing the Native Americans to relocate to Oklahoma and President Lincoln simply ignoring the judicial branch and unilaterally lifting the right to writs of habeas corpus.  Both of these instances ushered in fairly long eras of near complete powerlessness of the judicial branch.  The Court must occasionally consider compromising on the existing rules of law in order to maintain its institutional legitimacy and, thereby, its power and the rule of law generally.

On the other side of examples, the Court famously made a determination to preserve its institutional legitimacy, and therefore its power, in the "switch in time to save nine."  This occurred during the New Deal era, and regardless of one's opinion of those policies, they enjoyed broad public support at the time (as well as currently, to be frank).  The Court however repeatedly struck down provision after provision.  President Roosevelt challenged the Court by floating the idea of simply increasing the number of justices on the bench, allowing Roosevelt to nominate all the new members, and all of whom would support his provisions.  In order to shore up the legitimacy of the Court and avoid such a drastic interference with the Judicial Branch, Justice Owen J. Roberts switched his voting to support the New Deal provisions.  While some still express dismay over this change in course (the most notable being Justice Thomas), the fact of the matter is that this switch preserved the legitimacy of the Court, allowing it to issue such controversial rulings (at least for the time) as Brown v. Board of Education and Roe v. Wade without suffering the kind of debilitating loss in public support that would presage an era in which the rule of law is conspicuously absent.  (Another notable example is when Chief Justice Marshall refused to uphold claims to land by an individual who bought the land from a certain Indian tribe, in clear contradiction to the rules of property law.  He refused to follow the "rule of law" because its not the province of the Court to call into question claims to annexed land by the United States as that would set up the Supreme Court as having the power to de-legitimize the entire political underpinnings of the nation, of which the Court is a part.)

Applying these considerations to the ruling on Obamacare, there is a clear case to be made that Chief Justice Roberts "switched" in order to preserve the legitimacy of the Court, thereby preserving the rule of law generally and protecting the people from even greater tyrannical acts which could be contemplated by the President and his various "Czars" or even Congress.  Public support of the Court is at historical lows, due in large part, no doubt, to President Obama's shameless attacks on the Court.  Another defeat of the Democrat agenda by the Supreme Court during an election year would subject the Court to a level of political attack which could further erode its legitimacy.  Just imagine of the Court suffered from such low public support as Congress currently does.  However, by handing this victory to the Democrat agenda, the Court can avoid the criticism that it's rulings are ideological rather than based in good legal reasoning.  While it can be discouraging to see the Court succumb to the attacks of a President, one must bear in mind the reality that the independence of the Court depends upon the support of the people.  The solution to this problem is not in reforming any particular institution, as there is no way to escape political realities, but to hold respect for the Court individually and collectively, politically punishing those who encroach on the Court's independence.  Only then can we guarantee the Court's independence and thereby enjoy the rule of law.  At any rate, Chief Justice Roberts has expressed sensitivity in the past regarding the legitimacy of the Court, and I believe it would be naive to think that these political calculations did not play a significant role in Roberts' decision.  However, it would be foolish, shortsighted, and a grave disservice to the intellect of Roberts to end our analysis here. 


Limiting the Commerce Clause

The dominant issue in the debate over Obamacare was the scope of the Commerce Clause.  The history of the Commerce Clause is interesting in that it has gone through various periods of interpretation, ranging from authorizing expansive powers to authorizing only limited powers.  Under Marshall and for some time thereafter, the Commerce Clause was interpreted expansively - its only significant limitations were to be found in the political process.  This limitation worked to restrict the powers of the Federal government for quite a time.  However, as a laissez-faire economic theory emerged and was integrally connected to natural law legal theories, the Commerce Clause began to be restricted by the Court rather than just through the political process.  These restrictions became even more ingrained as the interests of the industrialist powers in the North and the Southern interest in limiting the powers of the Federal government after Reconstruction converged.  However, as discussed above, the Great Depression spawned a desire for expansive powers under the Commerce Clause which were eventually upheld.  The famous case which exemplifies this switch during the New Deal era is Wickard v. Filburn.  In Wickard, the Court upheld a law which sought to fix the price of wheat and included a provision which restricted wheat farmers to growing only a particular amount of wheat.  If a farmer exceeded his allotted amount, even for home consumption, he would be subject to punishment.

The Constitution authorizes Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  U.S. Const. art. I, § 8, cl. 3.  Therefore, any law passed under this 

authority must exercise a power which is classifiable as a "regulation."  The power to regulate in the context of the Commerce Clause was defined by the Court in Gibbons v. Ogden as the power to "prescribe the rule[s] by which commerce is to be governed."  Gibbons v. Ogden, 22 U.S. 1, 196 (1824) (emphasis added).  The Court also stated in Gibbons that commerce "is regulated by prescribing rules for carrying on that intercourse."  Id., at 190 (emphasis added).  In accordance with the expansionary effect of the Necessary and Proper Clause, the Court declared that "[t]his power [to regulate interstate commerce] . . . is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the [C]onstitution."  Id., at 196.  As recognized by the Court, those limitations which "are prescribed in the [C]onstitution, id., include those limitations "which inhere[] in the [C]onstitutional grant" of power itself.  NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 30 (1937).  Thus, Congress' authority under the Commerce Clause is to lay out the rules according to which individual behavior must conform while engaging in interstate commercial activity and is limited to that power only.

As such, the Commerce Clause recognizes a clear national interest in interstate commerce, or the national market, and grants Congress the power to regulate individuals' activities in relation to the market pursuant to political and public policy interests.  The Court elaborated on the power to regulate interstate commerce in Jones & Laughlin, stating that "the power to regulate commerce is the power to enact 'all appropriate legislation' for 'its protection and advancement'; to adopt measures 'to promote its growth and insure its safety'; 'to foster, protect, control and restrain.'"  Id., 301 U.S. at 36-37 (citations omitted).  However, Congress' power under the Commerce Clause is still subject to the inherent limitation discussed above - the power to regulate is still only the power to "prescribe the rule[s]."  Gibbons, 22 U.S. at 196.

A second intrinsic limitation on the power granted to Congress by the Commerce Clause was delineated in Gibbons when the Court concluded that "commerce 'among the several States,'" id., at 189, includes commerce which is intermingled with multiple States, or "commerce which concerns more States than one."  Id.  Therefore, should actions under the broadly defined "commerce" cross the boundaries of a State or affect another State, that action is said to be "commerce among the several States," or "interstate commerce."  See id.  Thus, a second intrinsic limitation on Congress' powers under the Commerce Clause is that the activity over which power is being exercised must be in the set of activities classified as "interstate commerce."

In Jones & Laughlin, the Court reasoned that "[a]lthough activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control."  Jones & Laughlin, 301 U.S. at 32.  The Court has recently elaborated on this rule in Lopez by stating that "the proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce."  Lopez, 514 U.S. at 559 (emphasis added).  An individual's activities which in themselves do not have a substantial effect on interstate commerce may nonetheless be regulated by Congress if those activities do have a substantial effect when aggregated with like activities of many other individuals.  See Wickard, 317 U.S. at 127-128.  Therefore, Congress can regulate activities which substantially affect interstate commerce, including an individual's activity which does not substantially affect interstate commerce in itself, so long as that activity, when considered in the aggregate with other similar actors, does substantially affect interstate commerce.

The Court in Raich declared that it "need not determine whether respondents' activities . . . substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding."  Raich, 545 U.S. at 22.  However, the Court has rejected as too attenuated a line of reasoning which "follow[s] the but-for causal chain from the initial occurrence of violent crime . . . to every attenuated effect upon interstate commerce."  United States v. Morrison, 529 U.S. 598, 615 (2000).  Thus, there is a proximate causation requirement connecting the underlying act passed by Congress to the substantial effect on interstate commerce.  As the Court explained in Lopez,

the scope of the interstate commerce power ‘must be considered in the light or our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local.’ 

Lopez, 514 U.S. 557 (citing Jones & Laughlin, 301 U.S. at 30).  Therefore, while it is only necessary for the Court to find that Congress had a rational basis test for concluding that particular intrastate activities have a substantial effect on interstate commerce, the rational basis test is limited by the principle that the line of reasoning must preserve a realm of power over commerce exclusively to the States.

The reservation to the States of an exclusive realm of power over commerce has been a recent development, achieved by requiring that the intrastate activities being regulated by Congress must be non-economic.  See, e.g., Lopez, 514 U.S. at 559-560.  In establishing this requirement, the Court observed that they had "upheld a wide variety of congressional Acts regulating intrastate economic activity . . . . [T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.  Even Wickard . . . involved economic activity."  Id., at 559-560 (emphasis added).  In Morrison, the Court reaffirmed its analysis in Lopez, saying that "a fair reading of Lopez shows that the noneconomic . . . nature of the conduct at issue was central to our decision in that case."  Morrison, 529 U.S. at 610 (emphasis added).  In Raich, the Court defined "economic" as "'the production, distribution, and consumption of commodities.'"  Raich, 545 U.S. at 25.  Thus, the growing of a product, e.g. wheat as in Wickard and marijuana as in Raich, can therefore be considered economic because that activity can be classified as "production."  Hence, Congress' power to reach intrastate activities which have a substantial effect on the national market only applies to intrastate activity which is itself economic activity.

The Obamacare ruling seems to further solidify the emergence of a new era of Commerce Clause jurisprudence in which the Court limits the scope of Congressional power by recognizing an exclusive realm of power over commerce for the States.  In the Obamacare ruling, Justice Roberts emphasized that the Congressional power to regulate commerce "presupposes the existence of commercial activity to be regulated.  National Federation of Independent Business v. Sebelius, S.Ct. at 16 (2012).  "If the power to 'regulate' something included the power to create it, many of the provisions in the Constitution would be superfluous."  Id.  Furthermore, Commerce Clause precedent "construing the scope of the commerce power . . . have one thing in common: They uniformly describe the power as reaching 'activity.'"  Id.  "Wickard has long been regarded as 'perhaps the most far reaching example of Commerce Clause authority over intrastate activity,' Lopez, 514 U.S., at 560, but the Government's theory in this case would go much further."  Id., at 17.  "Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and . . . empower Congress to make those decisions for him."  Id., at 16.  "Accepting the Government's theory would give Congress the . . . license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government."  Id., at 18.  "The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding."  Id.  "The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.  Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States."  Id., at 20.  Thus, the Court has extended the trend to moderate Congress' power under the Commerce Clause by enforcing an exclusive realm of power over commerce for the States; an individual mandate on a State level is perfectly Constitutional, at least from an analysis considering the power to affect commerce.

John Roberts' John Marshall Moment?

What Roberts gives with the one hand, he seems to take with the other.  In a move that has infuriated Conservative partisans, Roberts upheld the individual mandate as a valid exercise of Congress' powers under the Tax and Spend Clause.  Roberts' ruling inevitably recalls a similar ruling early in our Nation's history, Marbury v. Madison, and I suspect that Justice Roberts would like his ruling to be analogous to Justice Marshall's in Marbury.  A brief explanation of Marbury may therefore inform our analysis of the Obamacare ruling.

"In 1800, the incumbent President, John Adams, lost in a hotly contested election. . . . Jefferson ultimately prevailed, based on a vote in the House of Representatives.  Adams was a Federalist, and the Federalists were determined to exercise their influence before Republican, Jefferson, took office. . . . On February 13, 1801, Congress enacted the Circuit Judge Act, which reduced the number of Supreme Court Justices from six to five, decreasing the opportunity for Republican control of the Court.  The Act also eliminated the Supreme Court Justice's duty to serve as circuit judges and created 16 new judgeships on the circuit courts. . . . On February 27, 1801, less than a week before the end of Adams's term, Congress adopted the Organic Act of the District of Columbia, which authorized the President to appoint 42 justices of the peace.  Adams announced his nominations on March 2, and on March 3, the day before Jefferson's inauguration, the Senate confirmed the nominees. . . . A few commissions, including one for William Marbury, were not delivered before Jefferson's inauguration.  President Jefferson instructed his Secretary of State, James Madison, to withhold the undelivered commissions.  William Marbury filed suit in the United States Supreme Court seeking a writ of mandamus to compel Madison, as Secretary of State, to deliver the commission.  A writ of mandamus is a petition to a court asking it to order a government officer to perform a duty."  Justice Marshall was placed in an awkward position.  On the one hand, he himself was a Federalist, generally striving to solidify the Federal Government's power after the disastrous experiment with the Articles of Confederation.  There was undoubtedly a large amount of political pressure from his peers to hamper Jefferson's efforts to implement the Republican agenda by forcing him to appoint their man to the position.  On the other hand, "Marshall had no choice but to deny Marbury relief: the Jefferson adminstration surely would have refused to comply with a court order to deliver the commission.  In addition, there was a real possibility that Jefferson might seek the impeachment of the Federalist justices in an attempt to gain Republican control of the judiciary."

Therefore, Marshall "betrayed" is peers and handed Jefferson and the Republicans a victory.  However, what he seemed to give with one hand, he took away with the other.  Madison would not be compelled to deliver the commission to Marbury, but in order to reach that conclusion, Marshall laid the groundwork for actually advancing the Federalist agenda.  First, he protected the Court from political interventions by Jefferson, thereby assuring that the Federalist interpretation of the Constitution would persist in the Court for some time.  Second, he established the principle of judicial review of both legislative and executive acts, simultaneously bringing Jefferson and the Republicans under Federalist scrutiny in the Court while expanding the power of the Federal Supreme Court - it would have been very easy to extend the English jurisprudential system in which no court has the authority to invalidate an act of the legislature.  If there is an analogy between the Obamacare ruling and Marbury, it will be in one of these regards: 1) protecting the independence of the Court; 2) advancing a particular political agenda while seeming to advance its opposite; and/or 3) expanding the power of the Federal Government.

Protecting the Independence of the Court

This was discussed to some extent in the section above, entitled Supreme Politics.  However, here the point is slightly different that merely the legitimacy of the Court.  Here, the point is to keep the Court free from the interfering hands of politicians in either the Legislature or the White House.  The two points are certainly related - to the extent that the Court is viewed as legitimate, there is less incentive for politicians to meddle with the Court, but if the Court is viewed as illegitimate, there is greater incentive for politicians to meddle.  Therefore,  protecting the legitimacy of the Court will tend to protect the political independence of the Court.  Such political independence is clearly desirable both to protect the principle of separation of powers (as a desirable form of government in itself) and to prevent "the mob" from determining the outcomes of legal proceedings.  Therefore, the Obamacare ruling has at least this parallel with Marbury - that the Chief Justice took an unexpected action in order to preserve the independence of the Court, thereby preserving the separation of powers and the rule of law.

Advancing a Particular Political Agenda While Seeming to Advance Its Opposite

First, Justice Roberts may have freed the Court for some time from the blatant attacks of President Obama and some of the Democrats.  By giving them this victory, their critique, that the Court has been "hijacked" by a bunch of conservatives who are intent on advancing their own political cause, has been blunted.  They can no longer credibly argue that the Court is at the mercy of conservative ideologues.  The potential parallel to Marbury here is that Justice Roberts will now be free to make decisions which are informed from his own political views without being demonized in any credible fashion, just as Marshall preserved the Federalist bent in the Court.  However, the concern is that Roberts has actually tipped his hand that he succumbs to pressure.  Therefore, my particular concern is that Roberts hasn't actually freed himself to make rulings without being attacked, but has actually invited greater interference, but how this plays out has yet to be seen.  At any rate, I do believe that this was part of Roberts' calculation.

Second, Justice Roberts may have actually brought the Congressional power to Tax under greater scrutiny.  Just as the above consideration, how this plays out has yet to be seen.  However, Roberts may have followed in his mentor's footsteps.  Justice Rhenquist successfully ushered in the new era of a more limited power under the Commerce Clause by succinctly describing the scope of that power in a manner which was both consistent with precedent but also laid the groundwork enforcing clear limits.  Here, Roberts may have done the same with the Tax power.  He has fairly succinctly described the power of Congress to Tax, but has also described some limiting principles.  The concern here is that by allowing Congress to tax people for merely existing, the so-called limiting principles are far from being truly restrictive.  But, like I said, how this plays out has yet to be seen.  My hope is that Justice Roberts has done precisely this - upholding a far-reaching tax, but laying the groundwork to advance his political philosophy which would ultimately limit that power to tax.  I suspect that this will not play out as I hope because, as indicated above, it would seem that in order to meaningfully enforce the restrictions indicated, the Court will have to either outright reject the present ruling or to make such distinctions as will make clear that the ruling does NOT mean that Congress can tax people for merely existing.  

However, there is at least one more interpretation, and one which I think is more likely that the previous two.

Expanding the Power of the Federal Government

The final potential parallel with Marbury is that Justice Roberts is actually a closet Federalist, i.e. his true political philosophy is one which seeks to secure and even extend the power of the Federal government.  While I have no doubt that Roberts is more supportive of a powerful Federal Government than the other "conservative" justices, I would like to think that he hasn't actually staked out a long-lasting stance where he sides with the "liberal" justices.  However, this may be the case.  He may have announced himself to be a big-government conservative.  Thus, in order to advance his political philosophy which would allow for actions by the Federal Government on many issues, he simply had to support the power of the Federal Government to act on these matters in general, and that the true limitation is to be found merely in the political process.  From what he has written in his opinion, this may well be the best explanation.    

Therefore, I suspect that this last possibility is most probable, and that Roberts does see his ruling as being analogous to Marbury.  Roberts hopes to have preserved the independence of the Court, thereby allowing him to issue rulings with greater freedom from the attacks of politicians.  Roberts has staked out his position as a big government conservative, allowing for a large amount of Federal action on various matters, like Justice Marshall.  Along this line, Roberts views his ruling as actually advancing his political views by 1) allowing the federal government to act on a plethora of issues, and 2) exposing President Obama to the attack of being an oppressive taxer and hopefully ushering in a rather immediate political sensibility more attuned to Roberts' own big government conservatism.  Indeed, the day may come, not too long from now, that Republican partisans will rely on the powers that Justice Roberts has recognized, and that those Republicans will, in the long run, have to thank Roberts.  At least, I suspect that that is Roberts' own view, and that is how I make sense of the Obamacare ruling.

Inalienable Rights as Legal Rights?

Inalienable rights do not change or differ depending on time or place. Inalienable rights derive from the nature of the necessary and symbiotic relationship between individuals and society at large. To call them inalienable, however, is not to say that they cannot be subjugated by law. History, and indeed contemporaneous events, demonstrate that many governments do deny their citizens their inalienable rights. To call rights inalienable, then, is to say that in denying people the free exercise of those rights is to do violence to them and to society itself and is therefore immoral, destructive, and unsustainable, making the government which systematically denies such rights to its people utterly illegitimate.

Before analyzing various principles which are alleged to be inalienable rights, a word regarding the nature of rights themselves is warranted. I propose that a right is nothing more than a rational expectation derived from the framework of social relations. The rational expectation may derive, as in the case of transitory rights, from a statute, a Constitutional provision, or other explicit agreement which is subject to change. Inalienable rights, however, derive from the relationship of society and individuals itself, and cannot legitimately be subjugated by any such transitory right. They are implicit rights, rights which exist as a necessary part of the relationship between individuals and society. However, every right enforced by law is ultimately derived from transitory rights expressed in statutes or Constitutions. Even the rights defined in a Constitution are transitory because a Constitution must provide for changes in society and for greater awareness of rights. In other words, as a social compact, a Constitution is itself subject to change, and must be so.

The challenge then is to determine how and to what extent inalienable rights can become governing principles guiding the application of all other legal rights. It seems to me, that the key lies in beginning the inquiry with the judiciary. The judicial branch should be so steeped in commitment to inalienable rights that even if a Constitution should express something contrary to them, the courts will be able to subjugate the Constitutional provision to the inalienable rights. This however, would seem to provide an enormous amount of power to the courts, a power which might become tyrannical in practice. On the other hand, the courts are in themselves incredibly weak. The great secret of their power lies in not issuing rulings which are liable to be disregarded by the other branches of government, or if their rulings are so disregarded, to be able to muster the public support to "punish" the other branches by electing others in place of those who have disregarded the courts. Thus, the courts are actually incapable of tyrannically governing the norms of society because broad public discontent with their rulings results in an epoch in which the courts lose almost all legitimacy. This has happened on several occasions in American history. However, these examples are not so much examples of checks on the tyrannical tendencies of the courts as they are of the courts' incapability to stem the tide of illegitimate, tyrannical actions which enjoy broad public support.

Thus we see, that in all reality, legal recognition of inalienable rights depends on broad public support, and willingness to act, for those rights. This is not to say that inalienable rights are themselves whatever a lot of the people want. Rather, the legal effect which inalienable rights enjoy will be determined by the commitment of the people to them. Thus, it is possible for public support to depart from inalienable rights in favor of laws which might be contrary to them. The tragedy of such a situation is that the people are then so un-self-aware that they don't even realize the violence that they are doing to themselves. It is therefore essential to a legitimate government that the people 1) are capable of expressing their support or disfavor for certain provisions in a meaningful way, and 2) are educated enough to understand what rights are inalienable and to understand why they are inalienable. Thus, oddly enough, we find that in a legitimate government, people have the right to some amount of free speech and freedom of conscience as well as the right to a basic education. These of course need to be further elaborated, but serve as a good starting point for a discussion of inalienable/fundamental/ universal/human rights.

The Creation of a Good Society

I see in the Pilgrims our true American heritage.  Today, they are largely ignored or ridiculed for their inconsistencies regarding religious freedom, but this stems from the notion that the concept of religious freedom was their biggest contribution to the world, whereas it is much more than that.  Ignoring or belittling the Pilgrims for what we perceive as inconsistencies does a great disservice to ourselves by blinding us to our true American heritage.  The Pilgrims were not so interested in the idea or principle of religious freedom as such.  They were more interested in the freedom to live their lives and to create a society based upon the principles they believed in, to create their own Good Society.  "Disgusted by the habits of a society which the rigor of their own principles condemned, the Puritans went forth to seek some rude and unfrequented part of the world where they could live according to their own opinions and worship God in freedom."  "These men possessed, in proportion to their number, a greater mass of intelligence than is to be found in any European nation of our own time [1830's].  All, perhaps without a single exception, had received a good education, and many of them were known in Europe for their talents and their acqui[sitions].  The other colonies had been founded by adventurers without families; the immigrants of New England brought with them the best elements of order and morality; they landed on the desert coasts accompanied by their wives and children.  But what especially distinguished them from all others was the aim of their undertaking....they [did not] cross the Atlantic to improve their situation or to increase their wealth; it was a purely intellectual craving that called them from the comforts of their homes; and in facing the inevitable suffering of exile their object was the triumph of an idea." (Democracy in America, Alexis de Toqueville) This idea was Puritanism.  Whether you agree with the Puritan ideal or not, they believed that the principles of the Puritan faith would establish a Good Society. Being unable to establish it or to live it freely in England, they set out to a new land in order to create their Good Society, founded on the principles of Puritanism (which helps explain the inconsistencies in religious tolerance we perceive today).  It is probable that never before in the history of the world had a group of educated people separated themselves from society with the conscious purpose of creating their own Good Society and constructing their own social contract.  This 'Social Liberty' was the freedom they sought (as opposed to religious freedom) and this is our true American heritage.

The creation of the United States of America is an extension of this noble heritage.  The American people were accustomed to being able to establish themselves in societies they preferred and shuddered at the idea that an island thousands of miles away would presume to tell them how to live.  Jefferson referenced this sentiment, citing an attempt on the part of the American colonies to reconcile themselves with Britain, when he wrote, "We have reminded them of the circumstances of our emigration and settlement here." The American commitment to Social Liberty was so strong that they fought the strongest nation in the world hoping desperately to preserve it. 

Coupled with this commitment to Social Liberty, the seemingly endless frontier offered not only amazing natural resources, but a source of hope and inspiration; a 'new world' where anyone's Good Society could be established.  I am well aware of the resulting plight of Native Americans, and how their versions of a Good Society were unfairly trampled underfoot.  The Americans and Europeans certainly could've done much better in engaging the Native Americans.  However, focusing on this once again falls into the problem of focusing on one aspect of the times and applying our current points of view to it, at the risk of blinding us to all else that was good.  The lessons from the failures of the past must be learned, but it is also necessary to embrace the good so that we can determine its value to us today. The settling of the American frontier had its positive side as well as its negative.  These coincided remarkably with the settling of the East Coast.  There were two classes of settlers, adventurers and devoted intellectuals.  Adventurers brought with them drunkenness, disorder, and violence while devoted intellectuals brought with them vision, order, productivity, and experimentation.

The current political, economic, and social crises in America stem from an increasing polarization of the citizens.  As unique individuals, we all have a unique view of what constitutes a Good Society.  When the system doesn’t operate ‘correctly’ or when we see something happen and say, ‘That’s not right,’ we are comparing the reality which surrounds us with our own perception of a Good Society.  Though we are often not fully aware of what our own version of a Good Society is, we each believe in that version so strongly, so powerfully, so personally that we each believe we know what is most important, and that our particular view is the mold for the rest of the nation.  This perception, buried deep within us, is not unique to any individual, any party, or even any single faction within a party.  Parties and factions exist precisely because of our strong beliefs in our own perspectives.  However, the idea that anyone's beliefs (yours or mine) are correct for everyone else lies at the heart of the problems facing America. The majority of Americans today are educated, but there is no allowing for the expression of this education in the establishment of today's Good Societies. 

Differing views of a Good Society easily come into conflict on the national level.  It is easy to see a great variety of opinions on all topics and if we are all to remain members of the same society, we must either be continuously in conflict against each other or we must somehow be reconciled.  The United States is currently in a state of perpetual conflict because we are all trying to tell each other what the Good Society should be, rather than recognizing that there are vastly different conceptions of the Good Society.  When one considers the number of citizens, the free exchange of ideas, and political representation, among many other factors, it can be difficult to imagine the country any other way.  Hence, party politics has assumed a level of dominance in America, even during Washington’s presidency.  It can be truthfully said that the persistence of the United States as a single body politic or as a single society in the face of ongoing internal conflict is a uniquely American triumph. However, this perception that our particular view is best and needs to be imposed on the national level is intolerant and, if realized, destructive of the very diversity we praise, leading to the creation of a 'centralized administration' to impose that will on the rest of the nation.

In his work, "Democracy in America", M. de Toqueville commented on the dangers of centralized administrations. "[A] centralized administration is fit only to enervate the nations in which it exists, by incessantly diminishing their local spirit.  Although such an administration can bring together at a given moment, on a given point, all the disposable resources of a people, it injures the renewal of those resources.  It may ensure a victory in the hour of strife, but it gradually relaxes the sinews of strength.  It may help admirably the transient greatness of a man, but not the durable prosperity of a nation.... However enlightened and skillful a central power may be, it cannot of itself embrace all the details of the life of a great nation.  Such vigilance exceeds the powers of man.  And when it attempts unaided to create and set in motion so many complicated springs, it must submit to a very imperfect result or exhaust itself in bootless efforts.... [Centralization] easily succeeds, indeed, in subjecting the external actions of men to a certain uniformity, which we come to love for its own sake, independently of the objects to which it is applied, like those devotees who worship the statue and forget the deity it represents.... it excels in prevention, but not in action.  Its force deserts it when society is to be profoundly moved, or accelerated in its course; and if once the co-operation of private citizens is necessary to the furtherance of its measures, the secret of its impotence is disclosed.  Even while the centralized power, in its despair, invokes the assistance of the citizens, it says to them: "You shall act just as I please, as much as I please, and in the direction which I please.  You are to take charge of the details without aspiring to guide the system; you are to work in darkness; and afterwards you may judge my work by its results."  These are not the conditions on which the alliance of the human will is to be obtained; it must be free in its gait and responsible for its acts, or (such is the constitution of man) the citizen had rather remain a passive spectator than a dependent actor in schemes with which he is unacquainted."

Sadly, the history of the United States only shows an increasingly centralized administration through which the party in power may impose its will on the rest of the nation, creating an increasingly homogenous society, while leaving hostility and apathy in its wake. The dynamic strength of America is being sapped. I for one would prefer to see this level of conflict turned to productivity and a flourishing in society (a sort of societal eudaimonia) rather than the current levels of hostility and apathy.  I would rather see tolerance and coexistence and a sharing of ideas towards productive resolutions of problems than to see our country as a miracle because it hasn't imploded on itself. 

By no means do I intend to offer some utopian society without government, as both political extremes advocate.  Some communist utopia is as illusory as some free-market/free-society utopia.  These extremes are clearly unrealizable, and the slightest amount of reflection only shows their absurdity.  Government is necessary and good.  However, I would argue that much is to be gained by recognizing that far fewer values than we might expect are truly "fundamental." Those values which are Constitutionally guaranteed throughout the Nation, should be those which arise necessarily from the mutually dependent relationship between individuals and society. All else, like it or not, is subject to local flavor.

Legitimate Government

By way of review, there are three legitimate interests of government which overlap to some degree, but which also stand in opposition to each other to some degree - liberty, equality, and fraternity (human fellowship). Liberty allows for freedom of action, but paradoxically requires restrictions imposed by law. Equality seeks to demolish social stratification and encourages hard work in the lower classes and demands it in the upper classes. Equality strives for equal results, but through hard work and other social improvements, such as universal education. Fraternity demands that the well-being of each member of society be considered and fostered to the extent possible on a systemic level, that each member of society be provided with a purpose if necessary, but also that social structures should be as lateral (non-hierarchical) as possible.

In considering any public policy concern, these are the three factors which must be weighed against each other, and a sort of cost-benefit analysis conducted. Legitimate government allows for this analysis in such a way as to maximize adherence to the conclusion, but also in such a way as to most easily discard irrational and clearly erroneous conclusions. I suspect that there is never one clear answer to any given problem, but rather that there is a set of acceptable answers from which to choose, and that each society must be free to conduct their own cost-benefit analysis and determine their own solutions.

First, these three principles (particularly those of equality and fraternity) indicate a basic governmental system based in a democratic process. However, it does not indicate a pure democracy. Pure democracy would simply mean that the will of the majority prevails in every circumstance brought before it. This can be dangerous, as some of the ancient Athenians would no doubt testify. It was because of the will of the majority that Socrates was sentenced to death, an indisputable failure of pure democracy. Pure democracy can infringe on the liberty interests of others by including clearly erroneous and illogical solutions into the set of possible solutions for society to choose from. Thus, there must be a democratic system, limited to some degree by a Constitution. A Constitution is principally a guarantor of the liberty interests of minorities from the vagaries of a democracy. This restricts the set of available solutions to those which result from a logical cost-benefit analysis. Other elements may be included in any particular Constitution, but this is the primary purpose in a legitimate government.

Second, the liberty interests may be divided into two categories. Transitory vs. inalienable. Transitory rights are those which may vary from society to society and from time to time. For example, France has recently decided to provide its citizens with the right to get faulty breast implants removed at no direct cost to the patient. This may or may not change in France, but certainly varies by society. Other rights are deemed inalienable. Thomas Jefferson famously wrote that life, liberty, and the pursuit of happiness are inalienable rights. However, this is largely based on John Locke's philosophy, which seems to me to have some serious flaws. Chiefly, Locke's approach is far too atomistic, taking individuals as the basic unit of society. However, as I've indicated in previous posts, I really disagree with this view. Individuals depend on society and society depends on individuals. Neither is more basic than the other. Thus, society (and government as the rough expression of the will of society), far from being a system perversely imposed upon individuals, is part of an essential relationship. It is in the nature of this relationship that any inalienable rights arise, not in the nature of the "basic" individual. Therefore, life, liberty, and the pursuit of happiness may indeed be inalienable rights, but this should be revisited and reanalyzed rather than taken as gospel truth. To be complete, a Constitution ought to indicate what are recognized as inalienable rights, as well as provide for a means by which any new insights may be accommodated and made part of the Constitution.

Thus, we see that a legitimate government is democratic at its base, limited by a Constitution, which provides for both transitory and inalienable rights. Any other differences in how particular societies solve similar problems and balance the interests of liberty, equality, and fraternity is irrelevant, so long as the process itself is legitimate. This should be the primary goal of each independent state, and perhaps, the goal of our foreign policy.

Fraternite

I have delayed writing this post. I fear that other conservatives might feel that I am off base, that I am actually a "bleeding-heart liberal," and no conservative at all. However, I believe that for the conservative movement in America to flourish, we must accommodate the values which lie at the heart of our classical liberal tradition. Failure to do so will only further alienate others from our cause, or if we are successful politically but have surrendered those values then we will only succeed in moving America towards a dictatorial form of government because the only interest in such political success is merely the possession and exercise of power.

Brotherhood - Fellowship - Family - these are the concepts communicated by the term "Fraternite." "Brotherhood" is a bit too exclusionary of a term for today's world and the term "Family" might introduce unsettling paternalistic tendencies in a discussion of government, law and public policy. "Fellowship," or "Human Fellowship," I think most accurately captures the intended meaning. Two thoughts regarding "Human Fellowship" occur to me; 1) each person has a role, a place in society, a purpose; and 2) the interests of others, i.e. their welfare, plays a role in public policy decisions and in structuring the law.

In an order of Human Fellowship, each person has a role, a recognized and valued responsibility, a purpose. The importance of having a valued role in society is demonstrated by the psychological harm to those who are long-term unemployed during major economic downturns. They are rejected in their previous role by society, then effectively told that there is no place for them elsewhere. They are unneeded, undesired. This is a horrible situation which ought to be avoided if at all possible. In a stable social order, the various possible roles in society are well defined, although such a social order often includes limitations placed on individuals' eligibility for those roles. Thus, one's purpose in life is generally defined at birth. Such a system is undoubtedly disconcerting to the modern mind, but we ought not to overlook the positives. There would, I believe, be great comfort in knowing that one's role is valued, has a proud history, and that one need not constantly consider whether their life is "fulfilling." However, we should not over-idealize something which is problematic. In such a system, the talented and skilled would often be consigned to roles into which they do not fit. They would likely experience intense internal conflict between the comfort previously indicated and the knowledge, even if vague, that one is not living up to their potential. Thus, there is great value in allowing individuals to find their own role in society. However, this approach often results in a social order of change, with ill-defined roles, making the search for one's own role incredibly more difficult. Although people have the liberty to choose their own course in life, and what role they will fill, there is near constant anxiety that one is not fulfilling THEIR role. From the above, it may seem to some that a stable social order has more to offer than a changing one. I believe, however, that this is an illusion. There is no such thing as a truly stable social order. The very nature of society is to change and evolve over time as conditions change and the members which make it up change. The values and needs of society are in a constant state of flux, sometimes changing quickly, sometimes slowly, but always moving on to something different. To rigidly hold on to any specific social order and its accompanying roles will only cause society to stagnate, whither and die. Thus, a healthy vibrant society requires a social order which can accommodate such change but still provide a valued role for every member of it.

In terms of the economy, I believe that there is value in the social safety nets which have been created, e.g. social security, medicare, unemployment benefits. However, I think these safety nets can overlook a necessary factor. These programs often focus on the need for people to know that they are valued, even when they are the lowliest of society. This is only half of the picture. They also need to know that they serve a purpose, that their role is valued. Because people identify themselves by the role they play, to indicate that their role is valued is to indicate that they are valued. Thus, in some cases, to truly extend the benefits of the social safety nets, it would also be necessary to extend a role for the beneficiary to play. This leads to my second thought on "Human Fellowship," that the welfare of others plays a role in public policy decisions and the structure of the law.

I will consider here the structure of the law. Interestingly, the basic social structure indicated by "Fraternite" is not hierarchical but lateral. If one were to think of it in terms of an actual family, it might be similar to one in which the siblings have all grown up, and the parents have now deceased. There is no set hierarchy, but there is mutual support and concern, each fulfilling a role according to their abilities and the needs of the others. Is it possible to create a legal structure which approaches such a lateral structure? While allowing anybody to serve in the government and requiring periodic reviews of public servants' performance is possibly the best governmental structure, what of the structure of the law itself? I am struck here by the fact that in such a familial approach, the concern with "justice" is less pronounced. While we all want to be treated fairly, there are times at which it is best to overlook one's own interest in "justice" and look more towards repairing and strengthening relationships. I don't believe that in one's personal life one should overlook when others have slighted you, but rather than being chiefly concerned with oneself and one's own hurt and demand for "justice," one should realize that the slight has harmed your relationship and appropriate measures should be taken to repair it. Sometimes such measures mean to reestablish appropriate boundaries of behavior, but not always, and even when it does, the means by which those boundaries are reestablished are important as it will redefine the relationship. Similarly, the law is chiefly concerned with relationships and the strain and harm done to them by the acts of at least one party. A legal structure based on "Human Fellowship" would focus chiefly on the relationship, considering how to repair it and what means to employ in reestablishing appropriate boundaries of behavior.

This was the basic idea of the prison system when it was first established. Alexis de Tocqueville (the author of Democracy in America) was technically sent to our new nation to study our revolutionary prison system. It had piqued the interest of those in Europe because the theory of our prison system was to reform those who were incarcerated. Historically, offenders were simply punished, often publicly. The punishment itself was meant to reinforce appropriate behavior in others. Those crazy Americans thought that they could reform members of society who had strayed and accordingly abolished cruel and unusual punishments. This interest in reforming wayward members of society, or rather, in repairing social relationships, is I think a proud American tradition that we should bear in mind, and which our legal system should more adequately reflect.