George Will’s Less Than Lapidary Column
The 1976 Pulitizer prize winner is phoning it in.
While I still enjoy his appearances on the “This Week” roundtable, George Will’s weekly column has gone downhill in recent years. Not all that long ago, he was writing biting columns such as a 1999 classic about frivolous lawsuits that included this gem:
If toothbrushes are, as charged, “unreasonably dangerous” because of the absence of warnings and instructions, try to imagine the words which, if printed on toothbrush packages, would immunize manufacturers against such a complaint. “Warning: In brushing, too much is too much.” “Instructions: Hold brush in hand. Insert the end with the bristles into your mouth. Move brush up and down. Stop before you wear out your teeth.” Or perhaps: “Look, this toothbrush is not normally a dangerous implement, but neither is it intended for ninnies who can’t figure out how to brush their teeth without doing them irreparable harm.”
Now, most of his columns seem to be precis of recent books with some half-baked political philosophy thrown in.
In eight years, Ronald Reagan appointed 49 percent of the federal judiciary; Bill Clinton appointed 43 percent. Clint Bolick says that the power to nominate federal judges has become “the grand prize in presidential elections,” because presidents now choose appointees with special attention to judicial philosophy and because human longevity has increased.
In his lapidary new book, “Two-Fer: Electing a President and a Supreme Court,” Bolick, of the Hoover Institution at Stanford and the Goldwater Institute in Phoenix, notes that Reagan was especially systematic and successful in appointing judges who would not surprise him, and his successors have emulated him. Since Barack Obama appointed Elena Kagan to replace John Paul Stevens, whose liberalism surely surprised his appointer, Gerald Ford, the court’s liberals are all Democratic appointees, the conservatives all Republican appointees, and both cohorts frequently are cohesive in important cases.
For one thing, is there anyone to whom it isn’t completely obvious that appointing justices to the Supreme Court is a key way in which presidents cement their legacy? Aside from the sort of ninnies who can’t figure out how to brush their teeth?
For another: lapidary? Now, I’m just a simple country boy from Alabama, so I had to look that up. Apparently, a lapidary is someone who cuts, polishes, or engraves gemstones. Used as an adjective, it can mean any number of things: “engraved in stone,” “marked by conciseness, precision, or refinement of expression,” or “suitable for engraving on stone.” Given that the book is only 126 pages, I’m guessing Will means “short.” Certainly, even at that length, it would be a major undertaking to carve it in stone. And, judging from Will’s summary, I don’t think it’s going to stand the test of time in the way of, say, the 10 Commandments.
Regardless, the point of both the book and the column is that, since Justices now stay on the court a very long time, conservatives ought to give up on the idea of judicial restraint and instead embrace Justices who strike down laws that undercut the liberties they imagine to be enshrined in the Constitution.
“When courts fail to enforce the Constitution,” Bolick writes, “typically they say that the proper recourse is through democratic processes — which offers hollow comfort given that presumably it was democratic processes that created the constitutional violation in the first place.” As Madison warned: “Wherever the real power in a government lies, there is the danger of oppression,” and in this nation “the real power lies in the majority of the community.”
Although Hamilton called the judiciary the “least dangerous” branch because it has “neither force nor will, but merely judgment,” it is dangerous to liberty when it is unreasonably restrained. One hopes Romney recognizes that judicial deference to elected representatives can be dereliction of judicial duty.
This argument is not novel; nor does Will add anything to the discussion. Indeed, he ends the column there.
Most conservative jurists, from Robert Bork to Antonin Scalia, agree that fealty to the text of the Constitution trumps deference to the elected representatives of the people. The latter is only due when they’re operating within the scope of their Constitutional power. It gets complicated, however, because of another principle that goes back to the earliest days of the Common Law: stare decisis. Precisely because courts have “mere judgment” as the basis of their power, judges strive for consistency in their rulings. Otherwise, the public will perceive them as arbitrary and capricious rather than neutral arbiters of The Law.
So, for example, Bolick and Will wish to
rectify the court’s still-reverberating mistake in the 1873 Slaughterhouse cases. It then took a cramped view of the 14th Amendment’s protection of Americans’ “privileges or immunities,” saying these did not include private property rights, freedom of contract and freedom from arbitrary government interference with the right to engage in enterprise. This led in the 1930s to the court formally declaring economic rights to be inferior to “fundamental” rights. This begot pernicious judicial restraint — tolerance of capricious government abridgements of economic liberty.
Whatever the merits of the Slaughterhouse decisions–and they’re indeed debatable–we have nearly a century and a half worth of precedents built on top of them. Our entire modern state, such as it is, exists in that environment. To hit a reset and go back to 1872 on the basis of a single judicial appointment–say, Clint Bolick replacing Ruth Bader Ginsburg–would be a shock to the system.
Further, to endorse that sort of judicial activism on the part of a conservative court is of course to do the same in the case of a liberal court. It’s entirely possible that Obama will win a second term, after all. And, if the economy finally rebounds, that he’ll be followed by yet another Democrat. Say, Hillary Clinton. Can Scalia and Anthony Kennedy, both born in 1936 and appointed in 1986, hang on that long? Note that David Souter, born three years later, retired three years ago.
Now, Will may have terrific arguments on all these issues. But the fact that his column doesn’t even contemplate that there may be problems with a Supreme Court that seeks to undercut our entire system of government on the basis of a vision of how government ought to operate–indeed, treating it as obvious that readers will embrace the wisdom of so doing without any argument whatsoever–is bizarre and baffling.
I actually didn’t know Will still was writing that column of his.
In any event, reversing old SCOTUS precedents doesn’t mean that we’ll “go back” to those days nor that our “modern state” negatively will be affected as such. That’s a common, academic-based shibboleth that really needs to be cast into the dustbin. Technological advancements will continue uninterrupted. The advances of the prior decades won’t be erased from the history books.
The conservative approach to Constitutional interpretation deals with federalism and the federal-state dichotomy of regulatory power.
Reinstating Lochner, for example, doesn’t mean that women suddenly will be prevented from bearing their breasts or wearing skirts or that gays will be forced into internment camps. All it would mean is that the alphabet soup of federal regulatory power over private enterprises — FLSA, OSHA, FMLA, ADA, CWA, ESA, FHA, RESPA, TILA, ADEA, OWBPA, COBRA, HIPAA, etc., etc. — largely would be abrogated and that regulation of private contracts would be left to state and local governments. That’s it. That’s all. It actually would increase reliance on the democratic process. State and local elections truly would matter. Rather than sitting around playing “angry birds” or sniffing glue people would have more than a good reason to care about who runs their state legislatures and who sits in their state governors’ houses.
Now, of course, at this point in the debate, the reflexive response from a leftist would be to say something like this: “If you allow states to legislate on their own they’ll discriminate against ______ [fill in the blank with applicable victim’s group].” A tautology. In other words that we need to ignore the Constitution and to have Uncle Fed in control because otherwise those mean, nasty states will run amok and trample over the rights of ______ [fill in the blank with applicable victim’s group]. The answer in large part is that people always possess the ability to vote with their feet.
Presumably, “lapidary” in this context means “jewel-like”, i.e. small and precious (in the sense orf valuable).
Oops, did I actually write “Lochner” up there. Yikes. Early in the a.m. I was thinking about those Slaughterhouse cases but then I also was thinking about going on a separate Lochner rant afterwards. Another time.
@Tsar Nicholas: Nobody’s arguing that we’d literally return to the 1870s. The point is that our modern view of government is based on a century and a half of understandings about the power of Congress, the regulatory state, federal-state relations, and so forth that began with the Slaughterhouse cases. There’s a whole house of cards that would fall if that card were taken away.
@Dave Schuler: Could be. While I don’t believe we need to avoid challenging words altogether, adjectives that don’t readily conjure the image the author intends aren’t useful.
Good non-fiction writing is concise. Will should have just written, “I have no idea what Romney believes, or what he will do. We should vote for him because he will appoint conservative judges. Those judges will find ways to interpret the Constitution that will make conservatives happy.”
Steve
After reading that, I am trying to wrap my head around Bush v. Gore and utterly failing.
The sovereign people, through the individual states, created the federal government. They did so by crafting a contract known as the U.S. Constitution. The states agreed to the terms of the contract, which specified the powers the federal government would have and how the federal government would operate, through the ratification process. That is the origin of the expression “American Exceptionalism”. We chose to be “ruled” by the consent of the governed via a written contract, not by a monarch, emperor, or military dictator.
Every contract requires precise, strict language to facilitate its interpretation and minimize the probability that disputes between the parties arise. The U.S. Constitution is no different. George Will’s point is that the Constitution is NOT, and was never intended to be, a “living” contract whose terms can be interpreted loosely. The Constitution had one purpose when drafted: to explicitly limit the power of the federal government to reduce the likelihood that the federal government would morph into an all powerful, oppressive, tyrannical monstrosity to the detriment of individual liberty.
Now, that contract our predecessors ratified provided ways for the sovereign people to give the federal government more power, or take power away from it. Those are the constitutional amendment process and holding a Constitutional Convention. For over a century, the sovereign people have passively permitted activists judges, activist Supreme Court Justices, and wayward Congresses to usurp power from the sovereign people by breaching the contract the people made to create the federal government. George Will wants that to stop, if not be reversed. I’m with him.
@James:
Two things stick out to me here:
1. I decided a while back that most (granted, not all) conservatives who call for “judicial restraint” actually preferred/wanted judicial activism in their favor (two prominent examples: Terri Schiavo and Bush v. Gore). Will is, somewhat remarkably, being explicit about this (I have little doubt that if we perused his archive we would find a large number of columns vehemently opposed to judicial activism as a basic principle).
and
2. A lot of convservativism is, really, reactionary in orientation.
@Steven L. Taylor: Both good points… especially:
And given that we’re in the midst of a moment of rapid social/technological/economic change, it should be unsurprising that the more reactionary aspects of the conservative base are in ascendance.
Here’s the problem with Will and a lot of other conservatives who used to seem smart. If they were writing and thinking about the world as it exists today and what we’ve actually learned about it since 1980, they’d be forced to give up or greatly modify a lot of things they believed in 1980 but have since proven inaccurate, exaggerated or outright false. But the more you avert your eyes from uncomfortable reality, the more you have to retreat to silliness exemplified by the use of the word “lapidary” as Will uses it.
Mike
But Will is not wrong. The judicial nominations from both Bushes and Reagan allowed things like Citizens United and Heller, and if the court strucks down the HCR then a big part of the Liberal jurisprudence regarding the Commerce Clause would also go down. In fact, Romney could push the court even further to the right.
@André Kenji de Sousa: True.
A question for the Supreme Court is what happens when the U.S. becomes a one-party-state. Will the Supreme Court become irrelevant when all nine justices come from the same part of the political spectrum. Or will the justices not feel the need to tow party lines when there only one party.
As the U.S. becomes a one party state, I would guess that the Supreme Court becomes irrelevant because they will tow the party line of those who appointed them and with the other two branches of government governed by the same party, who will to anything to implement what the Supreme Court mandates.
As the U.S. becomes a one party state, the most postions will be the policy advisors in the Whise House since those people will be the real cabinet and be able to make or break industries, career fields, states, cities, or any political block. In the future, Clouts will become the new Supremes and people who pay no more attention to the Supreme court than people pay attention to the Cabinet Secretaries today.
@superdestroyer:
Johnny could only sing one note
And the note he sings was this
Ah!
Poor Johnny one-note
sang out with “gusto”
And just overlorded the place
Poor Johnny one-note
yelled willy nilly
Until he was bleu in the face
For holding one note was his ace
Couldn’t hear the brass
Couldn’t hear the drum
He was in a class
By himself, by gum!
— Johnny One-Note from Babes in Arms
@superdestroyer:
Easily the dumbest thing I’ve heard today. God, I miss the bliss of ignorance at times.
@Steven L. Taylor
I started as a conservative; I left when fear became the driving ideology. A lot of modern American conservatism is primarily reactionary, the days before Clinton v. Gingrich were more about pragmatism. Some, like Tsar Nicky, still (appear to) anchor their views in pragmatic terms, and can honestly debate the finer points without dissolving into platitudes and dog whistles.
@Phillip:
He’s got his hobby horse and by God he’s going to ride it. New drinking game: take a shot every time Superdestroyer mentions “one party state.”
I would like to see a definitive list of these “things” as they could well alter opinions about the current Constitution and supporting judicial acts. One cannot assimilate just “things” very well.
@michael reynolds:
Good God, man: are you trying to kill us all via alcohol poisoning?
@Steven L. Taylor:
Reactionary meaning ultraconservative, or reactionary meaning walking back what seem to be non-conservative laws, but not necessarily from an ultraconservative viewpoint?
It is not my opinion that many or most conservatives are of the Ultra variety, but it is inherent in the conservative lexicon that some recently passed progressive laws and regulations should be rescended, particularly Obamacare, and reworked.
@mannning: Reactionary meaning, returning to a prior state. Arguing we should return to the jurisprudence of the 1870s is, by definition, reactionary. It is not about conservation, but about retrogressive change.
@Steven L. Taylor: Don’t even ask what you have to do when SD brings up academics, east coast radicals, or minorities.
@Steven L. Taylor:
Exactly.
Its also marked in a belief that our best days are behind us — that only by returning to the values, morals, and laws of the America of our youth (or increasingly our parents youth) can the nation be saved. Which is a critical notion in a LOT of Tea Party rhetoric.
George Will has been right about two things in 25 years.
…He said “George Bush (the Lesser) drove the US into a ditch” on one of the Sunday gasbag shows.
…He was also right on something about baseball.
@mannning:
And where might we find this “conservative lexicon”? Who wrote it? Who decided it? Who speaks for conservatives? (and not the Ultra kind, as you mentioned). At the very least, “conservative” politicians can’t retract their positions fast enough for the base when they step out of line.
In all honesty, Bolick and Will are probably right about The Slaughterhouse Cases but, as you state, the idea that the Supreme Court is going to undo a century and a half of jurisprudence is just silly. In fact, when the gun control cases (D.C. v. Heller and Chicago v. McDonald) were before the Court, the Plaintiffs made the argument that Bolick is making. Justice Scalia, by no means a liberal, was rather incredulous about it from the start, asking them why the Court woudl even think about reversing a decision that hasn’t been challenged in a century when they could decide the core issue in the case without having to do so.
Will has written columns like this before. He joined many of those on the right who have talked about rescinding the 17th Amendment and returning to the days when the Senate was made up of members appointed by the legislatures of the several states. Regardless of the merits of the argument, the idea that we’d reverse history like that is absurd.
Quite honestly, that’s kind of how I feel about arguments against the Electoral College, or assertions that the filibuster must be eliminated. Tradition, for better or worse, is a strong force and absent some radical reason to do so reversing it is highly unlikely and potentially highly disruptive
Will on the supreme court and Will on global change both illustrate his decline as a serious writer. I read this blog on a daily basis because its authors, most of them a lot more conservative than I am, strike me as people who have something interesting to say. Will used to be like that, but no longer.
@michael reynolds: @Steven L. Taylor: Sure, laugh now. But when we’re in a one party state run by Saul Alinsky and his fellow travelers, few of whom are white, you won’t think it so funny.
@James Joyner: Indeed.
@James Joyner:
When the one-party-state, in fact, if not in design, finally comes around because more than 50% of Americans are automatic Democratic Party voters, it will be the Harvard-Yale-Columbia-Princeton types that run the country just like the do today.
You live close to DC, Maryland, and Baltimore. You should realize what a one-party-state looks like where the primary is the real election and the general election is barely mentioned by the media. Think about how many people will be voting in DC and Maryland in November and will not vote in a single election that is decided by less than 10%.
M.R., who lives in California where the Republican Party is irrelevant to policy and governance, should also be able to realize what a single party state looks like.
Just look at the mental gymnastics that progressives have to do to convince themselves that the two party system will survive. Does anyone truly believe that Hispanics who currently qualify for government set asides and quotas is doing to vote for the smaller government, lower taxes party. And if both parties are not going to differ on taxes, regulations, and the size of the public sector, then why should two parties exist. Does anyone really believe that two parties can exist when they only differ a few, irrelevant social issues?
James; I’m sympathetic with your comments about Will. Frankly the man has been phoning it in for some years now. That said, I think you chose the wrong target to drive that point home.
Witness; No, unfortunately there are a large number of people who don’t understand the Supreme Court implications of electing a president. That’s largely because such matters are not seriously talk in our government schools as they once were. At least, prior to the point at which government became so seriously involved with the school systems. In your case, and in mime, he may be preaching to the choir. But I wonder how many of his readers, particularly new ones, are among those to which this kind of thing is a completely new revelation.
As an aside, that column of Will’s as regards lawsuits, fairly well parallels one that I wrote back and early nineties. I’ll include it here, in the hope that some of you find it amusing.
@Steven L. Taylor:
Exactly what are the essential differences between the jurisprudence of today and that of the 1870s? Or is that simply a dramatic number devised to make some sort of point? I do believe that conservatives today do indeed want to roll back much of the Obama legislation and regulations, and to appoint solid conservatives to the courts, but that hardly qualifies as rolling back to the 1870s. Perhaps you are implying that any roll back at all is to be condemned as “purely reactionary”. If so, then most of us are indeed reactionary in your terms. So be it.
@mannning: The reference to the 1870s is from the post itself. I was not choosing a random number.
@superdestroyer: I lived in Alabama when it was a one-party state. Indeed, the first gubernatorial election I voted in (1984) was one where the winner of the Democratic primary was guaranteed to win the general election. The same was true in the 1988 election except that, well, it wasn’t. The Democrats overturned the primary, won by Charlie Graddick, and handed it to Bill Baxley, arguing that Republican crossover voters constituted Graddick’s margin of victory. The Republican nominee, sacrificial lamb Guy Hunt, won the election. Only one Democrat has been elected governor since.
I have little doubt that, if the Republican Party continues to take the stance it does now on Hispanic* issues, they’ll find it increasingly hard to win elections in a growing number of states. I also have little doubt that, as time goes on, the Republican Party will change its position of Hispanic issues and therefore be more competitive for Hispanic votes.
___________________
*There’s no uncontroversial word that describes Americans whose ancestry is from Central and South America and the Spanish-speaking Caribbean.
@James Joyner:
The example of Alabama demonstrates that the courts in one party states just becomes an apparatus of the ruling party. The elected judges were members of the ruling elite and made ruling that protected the ruling elite.
If the U.S goes 20 years or more with Democrat presidents, do you doubt that all of the sitting justices will be hard core Democratic Party activist who are vested in the Democratic Party maintaining power? Look at what the Supreme Court was willing to give FDR after more than 12 years in office.
@superdestroyer: Man… BINGO… I’m still drunk after reading that post.
@James Joyner:
Ahhh James, but you forget that we won’t have time to be sorry as all of us whities will be first up against the wall (those that are not sent to the slave camps).
@mattb: ” (those that are not sent to the
slaveFEMA camps).”Get it right, ok?
In light of the last ten-plus years of US history, it seems pretty clear that the policy of lifetime tenure for pundits has brought much greater harm to America than anything teachers’ unions have ever done.
@reflectionephemeral: In my opinion, pundits are the one class for whom the policy: “kill them all, God will sort them out” actually makes sense.
Maybe we could just mute them after five years? Five years of pontificating, five years of silence?
@Phillip:
You should be well-aware of the main conservative lines of thought by now, and of the various spokesmen for that movement over time. But, perhaps not. The message has been distorted by many who haven’t paid attention to the larger scope of the movement, but rather would sieze upon some minor ploy and call it to be true of all conservatives. This is one of the characteristics of the liberal approach in their battle to remain relevant in the face of the financial disasters that liberal policies in government have wrought on the nation for many years, culminating with the Obama $3 Trillion splurges. You should be well aware also that Republicans are not all conservatives, and that even libertarians have flirted with the Republican party at times.
It should also be obvious that I can speak only for myself on conservatism, although there are major threads of policies most conservatives I know seem to espouse. Some of them that come to mind at the moment that I will sketch out are:
1. Fiscal responsibility, balanced budgets accounting for, and paying down, our debts
2. Social responsibility
3. Strong defense of the nation, and the freedom and liberty we enjoy
4. Strong defense of the sovereignty of the nation, its prerogatives and its borders
5. Equal opportunity for all (and not equal outcome)
6 Support for the Constitution as plainly read, and not considering it a living document to be changed at the whim of a few.
7. Limited government, but also taking into consideration the growth of the nation
8. Natural rights, natural duties, and natural law
9. Religious freedom, along with the other freedoms: speech, association, movement..
10. The duty of judges to interpret the law and not to create it.
11. Supports capitalism and free markets insofar as practical, with regulation as needed.
12. Supports family values
13. Supports States Rights
14. Supports defense of the nation against terrorism at home and abroad
15. Careful introduction of changes where clearly needed and generally approved.
16. Subsidiarity where possible
17. Support states financially in their efforts to produce students qualified to succeed in life, and able to analyze and think for themselves.
18. and lots more…
As Brad Minor*, drawing upon Kirk and others, published in American Conservatism, and added to by me:
1. Realism, not Relativism*
2. Skepticism, not Progressivism *
3. Evolved Order, not Constructivism *
4. Federalism, not Statism*
5. Capitalism, not Collectivism *
6. Theism, not Secularism *
7. Sovereignty, not Internationalism
8. Personal Responsibility, not Central Solutions to All Problems
9. Moral Rectitude, not Hedonism
10. Firm rejection of liberalism, socialism, communism, and pacifism
11. Charity, not welfare, insofar as possible, but aid the truly needy.
Of course, the Devil is in the details, but Joyner would not appreciate publication of the entire Encyclopedia of conservative thought here.
@James Joyner:
You do know that conservatives are the ones who are keeping the legacy of Saul Alinsky alive, this is despite the fact that most Americans probably think that Saul Alinsky is the Executive Producer of “Jersey Shore” or “Housewives of Orange County.”
@al-Ameda: The Saul Alinksy ref is tongue-in-cheek, I assure you.
I think my last (and perhaps definitive) post on that topic was here.
@al-Ameda: @Steven L. Taylor: Quite. That thread, incidentally, remains #1 on Google for “political science Alinsky.” QED.