Don't Use the Obamacare Fight to Re-Litigate the New Deal

Conservatives should be careful in how they attack Obamacare.

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Being first and foremost a poet, Peter Viereck had a pair of wonderfully original terms to describe the various beasts who, in lazy journalistic parlance, passed for "conservative" but were reactionary or counter-revolutionary in their aims.

There were the " plutocranks," who self-interestedly defended the concentration of wealth in juridical language.

And there were the " ottantottists":

A reactionary king of Piedmont-Sardinia became almost a figure of fun by wandering about mumbling pathetically the word "ottantott," Italian for '88. Thereby he meant to say: all problems would vanish if only the world turned its clock back to 1788, the year before the Revolution. We may accordingly coin the adjective "ottantottist" for the counter-revolutionary and authoritarian conservative...

On the loose today is a hybrid—ottantottists who defend not monarchy but rather plutocracy.

They smell blood in next year's Supreme Court case on Obamacare, and they're using fiscal anxieties to make what is essentially a moral and legal case against the broader welfare state.

[See a collection of political cartoons on healthcare.]

There's a case to be made, by each side, on the narrow merits (or demerits) of Obamacare, especially its mandate that individuals are at least minimally covered by a health insurance plan. (Per the Atlantic's Clive Crook, I find the mandate unobjectionable in principle, but I believe there are other, less legally novel ways to deal with the "free-rider" problem.)

But a well-educated faction of conservatives see it as a vessel for larger ambitions: It's a chance for the court to restore the proper constitutional understanding of untrammeled economic liberty.

To put it mildly, such ambitions scare the crap out of me.

As befits his late-career migration into extreme libertarianism, George Will embraces the full-monty ottantottist-plutocrankish position:

This might galvanize a Supreme Court majority to say "Enough!" and begin protecting individual liberty from a Commerce Clause that the court itself has transmogrified into an anti-constitutional gift to Congress of virtually unlimited police power. This case can begin restoring Madison's constitutional architecture for a government limited by the enumeration of its powers.

Will here is talking in Federalist Society tongues; this kind of thing has been brewing in conservative legal circles for a couple decades.

[Vote: Should the Supreme Court Rule Obama's Healthcare Law Unconstitutional?]

Back in 1992, David E. Bernstein glimpsed a future in which the Supreme Court returned to its pre-New Deal jurisprudence, before progressives "eviscerated constitutional protection of economic liberty." (Bernstein recently published a full-length treatment of the topic.)

Have we presently arrived at that future?

Twice-failed Democratic presidential candidate Adlai Stevenson remarked in 1952:

The strange alchemy of time has somehow converted the Democrats into the truly conservative party in the country—the party dedicated to conserving all that is best and building solidly and safely on these foundations. The Republicans, are behaving like the radical party—the party of the reckless and embittered, bent on dismantling institutions which have been built solidly into our social fabric.

Could Stevenson's "strange alchemy of time" actually see this reversal accomplished more than half-century later?

Bernstein wrote in '92:

[T]he Constitution would never have been ratified if the commerce clause had been as broadly understood in the late 18th century as it came to be during the New Deal era. If the clause had granted Congress the power to regulate labor, agriculture, and manufacture, whether interstate or not, in minute detail, as claimed by the New Deal Court, a majority vote of Congress and a signature by the President could have outlawed slavery. Surely the southern states would never have ratified the Constitution had the commerce clause been understood as having such broad implications.

My jaw slackened as I read that paragraph.

I take the point that it would have been a very bad thing, historically speaking, had the Constitution not been ratified. I realize, too, there is a jurisprudential argument that says segregation under Jim Crow laws could have and should have been dealt with through the civil-rights amendments to the Constitution—not through the interstate commerce clause.

[Opinion: Founding Fathers Would Not Approve of Occupy Wall Street]

But would that have been enough?

If, in 21st-century America, a United States senator from a border state is still publicly airing misgivings about how the forcible desegregation of motels and restaurants circumscribes the right of private ownership, doesn't that indicate that the commerce clause was the last practical resort? Would the civil rights amendments have had sharp-enough claws to cut through the fabric of racism as it was lived on the ground?

Look, I believe in property rights. I believe our entitlement system needs to be reformed—and sooner rather than later. But, to paraphrase Stevenson, I think the fabric needs to be patched up, not torn to shreds.

I think, furthermore, that the Founders took a nuanced view of property rights; their principal aim was a procedural good order—a "more perfect union"—that would benefit property owners and non-property owners—women, men, and slaves—alike. "Life" and "liberty"  precede property for a reason: they are preconditions of economic rights.

[See a collection of political cartoons on the economy.]

As Viereck noted:

A mere conservatism of the pocketbook deserves that bad name; far from being a bulwark against revolution, its irresponsibility often provokes revolution. More responsible conservatives, like Disraeli or John Adams, defend property, their material base, only when linked with a moral base: service to the community. They distinguish sharply between a traditional, rooted property of service and a grasping, rootless property, not yet mellowed by time. It is only the loose journalistic use of "conservative," not the use by serious philosophical conservatives like Burke, Maistre, or Coleridge, that identifies conservatism with economic commercialism or with the particular position held by America's Old Guard Republicans.

This isn't another version of the "stakeholder vs. shareholder" argument about corporations. Even the Austrian archconservative Catholic theorist Erik von Kuehnelt-Leddihn agreed with Viereck's sentiment about property. In 1952's Liberty or Equality: The Challenge of Our Time, he wrote:

A ruler has the same obligation to the right use of power as the owner of property. Both—power and property—have to be used to foster the common good. Their misuse or abuse should result in confiscation or deposition.

Will used to argue that Americans had agreed to an "ethic of common provision." This ethic has been broadly ratified, legitimized, consented to. It very obviously did not put us on the "road to serfdom." (I'd love for Bernstein and co. to explain to me how economic liberty has been so "eviscerated" as to give us Countrywide Financial, 30:1 leverage ratios, and Mantoloking.)

I join Will in proclaiming "Enough!"

Corrected on : Corrected 11/22/11: An earlier version of this article suggested that slavery was not addressed with constitutional civil rights amendments, and had to be solved with the interstate commerce clause of the Constitution. However it was segregation under Jim Crow laws that was overturned using the interstate commerce clause.