Reagan Contra Lincoln - and Harry Jaffa

Professor Thomas J. DiLorenzo calls it "Lincoln's Specatular Lie" - Abraham Lincoln's claim that the states do not possess sovereignty because the federal government preceeded and therefore created the states. In reality, the exact opposite is true: the states preceeded and created the Union.

With the Declaration of Independence - which DiLorenzo correctly describes as a declaration of secession from the British Empire - the thirteen colonies seceded as individual states. This sovereignty was later affiirmed in the precursor to the Constitution - the Articles of Confederation, a governing system created by the thirteen states for their common defense.

In ratifying the Constitution itself, the states entered the compact individually. Morton Borden, editor of a 1965 edition of the Antifederalist papers claims that "the people" of the states as a whole ratified the Constitution and that it was the intent of the Framers to establish a "sovereign whole" separate from the thirteen states. However, this runs against the original understanding entirely, as DiLorenzo documents:

No less a figure than James Madison, the Father of the Constitution, explained in Federalist 39 that the Constitution as to be ratified by the people "not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong" (emphasis added).

Lincoln admirer and neoconservative Harry Jaffa of the Claremont Institute has fashioned a career out of perpetuating Lincoln's logic and the concept of "secession as treason" in general.

In the midst of the War in Iraq, neoconservatives like Jaffa have invoked the name of Ronald Reagan to justify our war of "global democratic revolution," implying that the Gipper would have supported such an attack. When folks like Bill Kristol and Fred Barnes trot out this point on Fox News it is never challenged - not that that this is surprising considering the utter lack of right-leaning voices on Fox that aren't neoconservatives.

While the late President Reagan has been recast in the popular mind - particulary among young conservatives - as a full-fledged neoconservative, it is interesting to note that Reagan disagreed with Lincoln - and by extension Harry Jaffa - about what (the states or the federal government) created what first. In his First Inaugural Address, Reagan declared explicitly:

It is my intention to curb the size and influence of the Federal establishment and to demand recognition of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people. All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government. (emphasis mine)

There you have it: Reagan contra Lincoln - and Jaffa.

The Jury is Still Out on John Roberts and Other Court Thoughts

Perhaps out of relief that President Bush did not nominate someone like Attorney General Alberto Gonzales, conservatives throughout the country seem to be in a state of euphoria over the nomination of John Roberts to the Supreme Court. Alas, celebration to me, at this point, seems premature.

Those who hope to overturn Roe v. Wade have latched onto a legal brief Roberts signed off on as a member of George H. W. Bush's Administration to argue that the pro-life movement should throw their lot in behind the nomination. However, during his confirmation hearing before the Senate Judiciary Committee in 2003, Roberts dutifully pledged to uphold the Roe precedent saying, "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." In light of this evidence, my friend Aakash Raut, prudently argues for conservatives to proceed with caution:

Whoa there - Let's slow down, guys...

The thing is, I don't recall having heard of Judge Roberts before tonight. And I know I'm not the only one... Many of his positions are unknown, especially since he doesn't have very many of his views on the official record. He did inveigh against Roe, but only as a representative of his then-client, the Bush 41 administration. Same goes for his filing in favor of the Playboy Channel's First Amendment "rights." I just saw the interim president of Planned Parenthood on Scarborough Country, who said: "This may surprise you, but we're [not taking a position on Roberts]"... They just don't know enough about him. Neither do we.

I think that conservatives need to be very careful before getting excited about this nominee... And we have to be wary of basing our reactions to his nomination upon the fact that liberals will be opposing him.

Despite the intense protest coming from the likes of the National Abortion Rights Action League, raising the specter of Roberts joining a Court majority that would overturn Roe, all evidence points to that decision remaining a staple of American law for many years to come. Assuming - and that is a very large and completely unsubstantiated assumption at this point - that Roberts would vote to overturn Roe, a 5-4 pro-Roe majority consisting of Justices Ginsburg, Stevens, Souter, Kennedy, and Breyer would still reign.

Perhaps the most disturbing aspect of the entire controversy surrounding the Court is how accepted the philosophy of judicial supremacy has become in American politics. Specifically, I'm referring to the concept - popular on the right and left - of appealing to the Court as the highest authority in the land on Constitutional issues. Want to strike a blow for the pro-life movement? Do you oppose affirmative action? How do you feel about the use of medical marijuana? All you have to do is get the right people on the Supreme Court to have your political views imposed on the entire country.

For more than thirty years now, conservatives have adopted a strategy of "capturing the Court" to rescind the advances of a cultural revolution hostile to traditional morality and the Christian religion in particular. They have marched hand-in-hand with the Republican Party, donated large amounts of time and money to the partisan cause, and urged the election of GOP presidents in the hope overturning decisions like Roe. What has it gotten them? A Court - 7 of 9 justices of which were appointed by Republicans - that rules in favor of race preferences in the name of "diversity," overturns state sodomy laws, and is generally deferential to federal power.

"American conservatism is a failure," wrote the late Dr. Sam Francis in his 1993 book Beautiful Losers. "Virtually every cause to which conservatives have attached themselves for the past three generations has been lost, and the tide of political and cultural is not likely to anytime soon." Twelve years hence, it is difficult to look back and not agree with Dr. Francis' assessment. One of the biggest reasons for this failure - particularly the failure of cultural conservatives - is the Court takeover strategy.

The startling fact is that Congress, under Article III Section 2 of the Constitution, has the power to overturn Roe v. Wade by simply asserting its authority to limit the appellate jurisdiction of the Supreme Court. This would, in effect, return the issue of abortion to where it was decided from the founding of the country to 1973 - to the people of the several states. Adopting a strategy of persuading the Congress to exercise this power would be infinitely more wise and efficient than playing the Supreme Court game.

It's Been a While

It's been over two months since I've written in this space - a consequence of the time restraints 15 credit hours of summer classes places on you.

During my hiatus, Aakash Raut was kind enough to invite me to guest blog over at his excellent University Blog. My sole entry focused on the Old Right and the importance of resurrecting it in order to roll back the size and scope of the federal leviathan.

Speaking of that Leviathan...

... it continues to grow and morph into something the Framers of our Constitution could hardly imagine. And, as is case for the bulk of the modern era, this latest expansion was aided and abetted by the Supreme Court of the United States.

In early June, the Court struck down California's statute legalizing medical marijuana by a 6-3 vote (Gonzales v. Raich). The constitutional reasoning for this assertion of federal police power: the interstate commerce clause.

The Constitution's interstate commerce clause (Article I, Section 8) gives Congress the power to "regulate interstate commerce." Originally intended to set up a free-trade zone amongst the states, the commerce clause has been used time and time again by the Supreme Court to justify expansion of the role of the federal government in the lives of American citizens.

In Wickard v. Filburn (1942), the Court upheld the constitutionality of federal regulation of locally grown wheat for personal consumption as stipulated by the Agricultural Adjustment Act - a legislative item part of FDR's New Deal agenda of central economic planning via cartels and price controls. Wickard provided a direct template for Bush Administration lawyers to argue the case for - and for the Supreme Court to ultimately justify - overturning the will of the people of California while authorizing criminal prosecutions of doctors who dare prescribe marijuana to patients in debilitating pain suffering from terminal illnesses.

The reaction of the political left to this decision has been interesting to watch. In my post on Aakash's blog I noted the sudden resurgence of interest among progressives in federalism and states' rights. Progressive concerns center around the Bush Administration and a Republican Congress using the power of the federal government to ease environmental regulations and generally threaten left-wing public policies in states like New York and California. While I applaud this nostalgia for Jeffersonian Republicanism within the Democratic Party, I can't help but believe it to be at best inconsistent if not disingenuous - especially in the light of modern American history.

In the 1940s, liberals were among FDR and the New Deal's biggest champions and they praised Wickard as a departure from the conservative jurisprudence offered by the Court throughout the 1930s. On a related historical point, it is interesting to note that during this time period it was the political left - led by FDR - that complained about an "activist" Supreme Court that was declaring many parts of the New Deal unconstitutional. Indeed, Franklin D. Roosevelt spearheaded an effort to appoint additional justices to the Court, thereby giving the Court a decisive progressive majority. Ultimately, Roosevelt's scheme to pack the Court would be one of his largest political setbacks as he watched the US Senate shoot down his proposal by a 70-20 vote and his New Dealers lose seats to Republicans in the 1938 midterm election.

Perhaps as a response to Roosevelt's Court packing campaign, the Supreme Court abruptly shifted its positions on the constitutionality of New Deal programs, ultimately leading directly to Wickard. Our historical detour aside, the main point here is that the political left cannot have it both ways. It cannot on one hand praise federal intrusion into the local affairs of rural farming communities in the name of command and control economics and condemn the specter of the Drug Enforcement Agency carrying off doctors who prescribe marijuana at the same time. The road to Gonzales v. Raich goes directly through Wickard.

The Court and Religion

In late June the Court upheld another honored modern usurpation of the Bill of Rights and the Tenth Amendment - the encroachment of the federal government on the rights of states and local jurisdictions to self-government on the issues of church-state relations, ruling that displays of the Ten Commandments are legal on state capitol grounds if they are accompanied by other secular symbols and illegal in state courthouses. Since Everson v. Board of Education (1947), legal commentators, professors, and ACLU attorneys have pounded an ahistorical view of the American Founding and the original intent of the First Amendment to the Constitution - a view the Court's decision was based on.

In Everson, Justice Hugo Black, writing for the Court's slim 5-4 majority, cited Thomas Jefferson's letter to the Danbury Baptists calling for a "separation of church and state" along with Jefferson and James Madison's support for disestablishing Virginia's state supported church to lay the foundation for all modern jurisprudence on these issues. With regards to the classic left-wing claim that our Constitution is "alive" or "living" and that we should interpret it according to the "morality of the times" as opposed to the fashion in which the document was originally intended, it is important to point out that Black's legal reasoning is shrouded in an original intent analysis - the problem is Black and the Court completely maligned the original intent of the First Amendment and the establishment clause which was explicitly to forbid "Congress" (the federal government) from establishing a national religion thereby protecting the states and local jurisdictions from central government encroachment.

Thomas Jefferson and James Madison, being two of the biggest champions of states' rights and political decentralization in the early American Republic would have been horrified by Black's legal reasoning. So when Black cites Jefferson and Madison supporting the revocation of tax support for the established church in Virginia, it is vitally important to keep in mind that theirs was a position on state and not national policy. Neither Jefferson, nor Madison, nor anyone in the entire founding generation questioned the constitutional right of states to conduct their own religious affairs. Indeed, this is precisely what took place in early American history - Vermont had an established church as did the state of Massachusetts on into the 1830s. And again, no one questioned the legality of this arrangement nor did the federal government attempt to intervene.

Do not misunderstand my argument against Everson and modern church-state jurisprudence in general as an approval of state sponsored religion - it is not. I cite the actual record of American history to demonstrate how far the Court, contrary to its claims, has strayed from "original intent" and how ridiculous lawsuits against states and small towns that display religious symbols like the Ten Commandments are when the entire founding generation recognized the right of the people in their states to manage their own religious affairs - even to the point of establishing state churches.

While many ACLU attorneys like to speak of the "right to choose" when it comes to abortion, they wholly deny the rights of local democratic bodies and city councils to choose to represent the religious tradition of those peoples in the public square. If citizens in Boise, Idaho want a display of the Ten Commandments in city hall, why does that profoundly affect me? If citizens of Vermont do not want them in the state capitol, then so be it - let local bodies decide. That is not, however, what many members of the ACLU want. While endlessly praising the virtues of "multicultralism" and "diversity" they seek to impose a rigid, nationalized, secular uniformity by bringing to bear the full power of the federal state, thereby eviscerating exactly the sort of "choice" the Bill of Rights sought to preserve - the right of the people to govern themselves.