Right Wing Nut House

This article originally appears at Frum Forum.

In an excellent article in The New Republic, Sean Wilentz takes to task those who wish to resurrect the pernicious doctrine of “nullification” to thumb their nose at the federal government on health care reform.  Unfortunately, Wilentz conflates nullification with the idea of “states’ rights” in general:

Although not currently concerned with racial supremacy, the consequence of their doctrine would uphold an interpretation of the constitutional division of powers that would permit the majority of any state to reinstate racial segregation and inequality up to the point of enslavement, if it so chose.

Is opposition to health care reform at the state level leading to a resurrection of slavery? Really?

That much has been done in the last 100 years to undermine the 10th Amendment is not debatable. That the cause for this was considered just is equally true.

At the same time, in our zeal to improve the lives of American citizens, we have allowed the very concept of federalism to atrophy. Even debating the idea that the 10th Amendment can be redefined so that it can be made relevant in a 21st century industrialized democracy is seen as an exercise in futility.

Clearly, there are many functions of government that do not lend themselves to the concept of federalism. We can’t have 50 different air quality or water quality standards. Nor does the prospect of 50 OSHA’s or MSHA’s, or FDA’s, or any number of federal agencies responsible for our health and safety make any sense.

But is it possible to take a hard look at these agencies and discover a few responsibilities they currently enjoy that might be better performed by states? If it can be done without gutting them, why not try? Shouldn’t states have a lot more to say about how federal lands are used within their boundaries? Those lands are enormously valuable in many respects and yet the states have little say in the leasing and development schemes of the federal government. And it is long past time we take a very hard look at the Department of Education (with a $63 billion budget) and find a way to turn that department into an adjunct to local efforts at teaching our children rather than as a repository for bureaucrats to carve out their petty empires. With educational achievement at historic lows, it is evident that at least some of that money might be better given to states and local school districts to use as they see fit.

The concept of federalism today is a far cry from what the Founders envisioned. But that’s how it should be, and it’s perfectly in keeping with what those men imagined for the future. They may have written the Constitution for a small coastal republic of 7 million citizens, but were prescient enough to give their creation the revolutionary ability to change with a changing country.

Now that we are a continental nation of 300 million – as diverse and vibrant a society that has ever existed -it is time to re-examine and reinvigorate the founding notion that power shared and dispersed among many is the bulwark against which no force can threaten our liberties. Resurrecting the ghosts of the past to discredit this notion should be met with the contempt it deserves.

Another in my series of puny attempts to dissect what’s wrong with modern conservatism. Part II will appear tomorrow.

I debated whether or not to make this a piece about “some conservatives” eschewing reality for an alternate universe or if I should make it about much of modern conservatism’s disconnect from the reality of 21st century America.

In the end, I think it is more important to look at how conservatism as a philosophy has closed itself off so thoroughly from uncomfortable and inconvenient truths about America. The fringe players in the movement with their litmus tests and dreams of going bear hunting with Sarah Palin are not really the problem as I see it.

Their worldview, shaped as it is by wallowing in the echo chamber of conservative media, and warped by a naive and ultimately uninformed ideological prism through which they spout nonsensical, paranoid conspiracies, may be relevant to the political health of the right but has little to do with the breakdown of conservatism as a governing philosophy itself.

In this case, it is conservatism losing its ability to question itself in a rigorous and punishing manner, preferring to maintain a comfort zone in which certain shibboleths of the past rest easily on the mind and prevent the kind of examination of underlying assumptions that any set of philosophical principles needs to maintain touch with the real world.

One might argue that the problem is really with people who hold to those philosophical principles and their refusal to challenge their beliefs. I don’t think this is necessarily true. You can’t sneeze these days without tripping over someone on the right indulging in the kind of “Woe is us” pontificating. I should know. I do it often enough. One would think with all this angst, some truths about why conservatism is where it is today and how it got there would emerge. So far, I have been unimpressed.

There have been some valiant attempts, most notably after Sam Tannenhaus’s Death of Conservatism was published. Rejecting much of Tannenhaus’s critique (as most conservatives should), the author nevertheless wallops a couple of extra base hits while socking at least one, long home run in his analysis; that modern movement conservatism isn’t very conservative at all in that it seeks to overthrow the social order rather than conserve what is best about America while channeling change into productive venues consistent with tradition and the Constitution.

Tannenhaus refers to these right wingers as “revanchists.” Indeed, there is a strong impulse even among so called “reasonable conservatives” that FDR’s New Deal and Johnson’s Great Society need to be repealed or drastically curtailed. In it’s place? There things get kind of fuzzy but what emerges from many conservatives is some kind of “super federalism” where a souped up 10th Amendment would give us 50 different EPA’s or worse, where “market forces” would solve the problems of clean air and clean water.

That’s just one example, of course. And I should hasten to add that any good conservative supports a reasonable brand of federalism, not to mention a prudent regard for liberty and the taxpayer’s money that would force us to question the efficacy of hundreds if not thousands of federal programs. But, what many of the revanchists seek is not a “return” to first principles in the Constitution but rather a form of government more akin to an Articles of Confederation on steroids.

Another Tannenhaus point scored deals with the notion that movement conservatives positively hate government - government of any kind. It goes far beyond the healthy suspicion that all conservatives should possess of the positive impact government programs can have on society, and devolves into paranoia about any government program or effort to address stubborn national problems.

Here is where conservatism itself goes off the rails and feeds this paranoia, preventing conservative ideas from being brought to bear on national issues like health care, immigration, loss of industry, globalization, and adequate, sensible regulation of everything from financial institutions to the environment.

For it is not necessarily people who have become hostile to government but rather conservatism as a governing philosophy that has walled itself into a corner, refusing to confront a modern America that is less white, less agrarian, more urbanized, more technical, and developing a growing tolerance for government solutions to prickly, systemic problems experienced by ordinary Americans.

That last is the killer. Since the end of World War II and the rise of modern conservatism, it is been de rigueur for the right to promote the idea that government can be cut down to size, shrunk to an ill-defined outline that bears more of a resemblance to 19th century America than a modern society with all the miseries and challenges that reality entails.

The thrust of conservative critiques of the welfare state from Hayek to Kirk to Reagan has been that government is bigger than it should be as a result of it trying to do more than is necessary for the functioning of a constitutional republic. Indeed, a strict constructionist reading of the Constitution would cause anyone to question the manufactured justifications for everything from overly zealous government interference in commerce to the legislating of cultural issues from the bench. Conservatives rightly believe that “original intent” are not dirty words and that First Principles are in many ways as valid today as they were 220 years ago.

But over the decades, conservatism lost its flexibility in delineating a coarse ideology from this philosophy. By this I mean that conservatism has eschewed thoughtfulness for conformity. I’m not sure if you can actually pinpoint a moment where ideology trumped reason, although my personal line in the sand was the 1992 Republican convention and the rise of the culture warriors.

But that may have been the denouement to a decade or more of slow rot eating away at the foundations of a carefully nurtured worldview that fought for principle while recognizing that America was changing and that conservatism as a governing philosophy must change with it. The idea of reforming government - Reagan’s grand notion of a New Federalism, lower taxes, fewer regulations, and freer people - died in the fires of a cultural backlash that has come to define modern conservatism.

This is where conservatism lost touch with reality. The moment that the war itself became more important than the principles espoused, all semblance of rationality was tossed out the window and in its stead arose a mindless, knee jerk opposition to government and, of course, the left. As the living embodiment of Big Government, liberals became an enemy and not the political opposition. Rather than fighting to apply conservative principles to the art and artifice of government, the right chose to immolate reason, and turn its back on the reality of modern American in order to destroy their enemies.

As practiced by the most influential conservatives today, this is what passes for conservative thought. Tannenhaus correctly surmised that movement conservatism has won the battle against the pragmatists and now dominates the conservative discussion. I don’t agree with what he believes this fact necessarily portends for the future - a continued decline in influence and relevance of the right. In fact, as I will show tomorrow, there is cause for some hope that younger, more intellectually muscular conservatives who are questioning everything while searching for a new conservative paradigm that would re-integrate movement conservatives into a re-energized whole, may be the beginning of a conservative revival.

Tomorrow: Reports of the death of Culture 11 have been greatly exaggerated.

TENTH AMENDMENT: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Does the US Constitution give the federal government the right to dictate to a state how long it must supply unemployment compensation insurance? Or where it must spend its money on health care? Or how it runs its welfare programs?

It’s called “The Forgotten Amendment” for good reason. While everyone waxes poetic about their love for the Bill of Rights - the first ten amendments to the Constitution - some of us are very selective in which of those amendments we actually recognize and support.

While the left can bore you to death telling you how much they adore the First Amendment and how only the most expansive interpretation of it can be accepted, something sticks in their throat when applying the exact same rationale to the Second Amendment. Here, only the narrowest of definitions should be used (”Militia” means militia, goddamnit!).

And when it comes to the Ninth and Tenth Amendments, liberals have thrown a cloak of invisibility over them. If they have to talk abut them, it is usually to accuse the proponents of these building blocks of federalism of being closet Kluxers. “States rights” has a malodorous stench attached to the concept due to the justification for Jim Crow by southern racists in pre-civil rights days where these misunderstood amendments were used to assert the sovereignty of the state to order its own affairs.

There is no denying this. But should this historical truth necessarily forever and in every circumstance delegitimize those who wish to assert the view that those powers not enumerated in the Constitution are reserved for the states and individuals? Should this be the only definition of states rights — that it means a roll back of civil rights gains?

Obviously, the left wishes to pimp that notion till it cries uncle. Here’s Ed Kilgore doing just that in a post yesterday:

As someone just old enough to remember the last time when politicians in my home southern region made speeches rejecting the Supremacy Clause and the 14th amendment, I may take this sort of activity more seriously than some. But any way you slice it, Republicans are playing with some crazy fire. For all the efforts of its sponsors to sell the “sovereignty resolution” idea as a grassroots development flowing out of the so-called Tea Party Movement, its most avid supporters appear to be the John Birch Society and the Council of Conservative Citizens, the successor to the White Citizens Councils of ill-fame. And given the incredibly unsavory provenance of this “idea,” it’s no surprise that these extremist groups are viewing the “movement” as an enormous vindication of their twisted points of view.

If John C. Calhoun offered the definitive articulation of the nullification theory, his nemesis, President Andrew Jackson, offered the definitive response, which holds true today. He said the doctrine was “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.”

This wildly exaggerated notion that the Tenth Amendment Movement is largely the creation of Birchers and Kluxers is ridiculous on its face. Neither of those groups has the organization or wherewithal to ramrod an effort that has seen resolutions asserting state sovereignty introduced in 35 states.

Further, bring up Jim Crow is a gigantic strawman. The drive to pass these measures is animated largely by the Democratic Stimulus Bill that is mandating wholesale changes to state law and in some cases, violating state constitutions with mandates for which there will be no funding once federal money is cut off.

Looking at the stim bill last March, Ronald Rotunda writing in the Chicago Tribune pointed out that the federal government was reserving for itself almost unlimited power to dictate to the states:

Because some governors might not accept the money, Congress added a unique provision, in subsection 1607(b): “If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.”

If state law does not give the state legislature the right to bypass the governor, how can Congress just change that law? Where does Congress get the power to change a state constitution?

It might appear quaint to note that the U.S. Constitution does not create a central government of unlimited powers. Congress only has those powers that the Constitution gives it either expressly or by implication. That’s a lot of power, to be sure, but it’s not unlimited.

Kilgore and his ilk are throwing around terms like “nullification” when in actuality, the states only wish to continue to exercise authority in those areas that they have traditionally been granted the power to do so by the Constitution.

It is the federal government that is trying to change things, not the states.

This is not about civil rights, or nullification, or secession, or any other bugaboo with which liberals are trying to smear and besmirch the efforts of state sovereignty supporters. And since the left is positing the ridiculous notion that the exercise of 10th amendment rights by the states threatens the republic, then one is left with the real reason for their gripe; they object to the concept of federalism as it was envisioned by the Founders.

We all know about “enumerated powers” expressed in the Constitution itself. No one is arguing with those. It is the “reserved powers” justified by the “necessary and proper” clause in the the Constitution that are at issue. What “implied” powers does the federal government possess? Liberals seem to be saying that those powers are defined by Congress and the feds alone — anything Congress wants to do relative to the exercise of state powers, it can do.

This is what the Tenth Amendment Movement is seeking to fix; a constitutional basis for the exercise of state authority in matters clearly not the business of the federal government.

Can Congress mandate that states increase the number of weeks that an unemployed worker can receive benefits without also paying for it? Whether you happen to think this is a good idea or not (and I think it was necessary in these hard times), the question of whether Congress can mandate such a change in state law - especially since once the stim bill money is cut off, the states are responsible for increasing taxes to pay for the measure - becomes a matter of state power versus federal power.

Wasn’t the Tenth Amendment designed to keep the federal government from dictating in such a manner to the states while preventing the feds from overriding state law? I am not a constitutional scholar but it makes sense to me that even an expansive, broad minded reading of the Constitution would get into trouble when trying to justify such actions.

I accept the notion of federal primacy where civil rights are concerned, as well as regulatory authority relating to the health and safety of Americans. But as Professor Rotunda mentioned above, this authority has its limits. And the supporters of the Tenth Amendment Movement are seeking to define those limits to prevent the power grab being made by this Democratic Congress and Administration, using the excuse of an economic crisis to aggrandize power unto themselves at the expense of the traditional rights of the state and individuals.

There are several angles that the Tenth Amendment Movement is beginning to play out across the land. In Montana, the state legislature is seeking to assert sovereignty over a limited interpretation of gun rights:

In a bill passed by the Legislature earlier this month, the state is asserting that guns manufactured in Montana and sold in Montana to people who intend to keep their weapons in Montana are exempt from federal gun registration, background check and dealer-licensing rules because no state lines are crossed.

That notion is all but certain to be tested in court.

The immediate effect of the law could be limited, since Montana is home to just a few specialty gun makers, known for high-end hunting rifles and replicas of Old West weapons, and because their out-of-state sales would automatically trigger federal control.

Still, much bigger prey lies in Montana’s sights: a legal showdown over how far the federal government’s regulatory authority extends.

It is fighting federal mandates on state spending that is driving this movement forward, not Bircher paranoia or hopes by the Klan to return to the days of Jim Crow. And how this issue is finally settled will decide the fate of federalism and with it, the limits on power we wish to see on the federal government.

We are a federal republic. It’s about time we started acting like one again.