Wednesday, May 27, 2015

in a state of nature a strong man always eats first...,

thinkprogress |  Murray has written a terrible book. It is at once credulous of fringe thinkers and contemptuous of American democracy. Yet he has also written a deeply revealing book about the nature of conservatism in the age of Obama. When President Ronald Reagan was in office, he spoke with the confidence of a man who believed that the American people were on his side. Reagan pledged to appoint judges who support “judicial restraint,” a testament to Reagan’s belief that he did not need the unelected judiciary to enact conservative policies, and his administration’s understanding of the Constitution was decidedly moderate when compared to the ideas of men such as Barnett, Epstein and Greve.

Since then, however, the Republican Party has lost Reagan’s self-confidence. Instead, they reflexively turn to the judiciary when they are unable to win battles on health care, immigration, the environment, or a myriad of other issues. Democracy, as McConnell said in 2011, no longer works to give conservatives what they want.

Yet this strategy has yielded only mixed success. The Supreme Court rendered a key prong of Obamacare optional, but they kept the bulk of the law in place. Religious objectors enjoy a right to opt-out of federal birth control rules, but the rules still bind most employers. A high-profile Supreme Court attack on the Environmental Protection Agency barely ended with a whimper. Republicans dominate the Supreme Court, but these justices do sometimes temper their Republicanism with obedience to the law and the Constitution.

By The People, by contrast, bypasses the law entirely. It abandons even the trappings of a legitimate constitutional process, and instead places government in the hands of billionaires loyal only to an anti-government agenda. It is, in many ways, the perfection of post-Obama conservatism, barely even bothering to pay lip service to the notion that the American people should be governed by the people they elect.

But By The People is also more than an unintentional indictment of conservatism, it’s also a warning for liberals. In a 1993 tribute to the late Justice Thurgood Marshall, future Justice Elena Kagan wrote about a case, Torres v. Oakland Scavenger Co., that came before the Court during her year clerking for the legendary civil rights advocate. The case involved whether an employment discrimination suit would fail because a lawyer’s secretary accidentally omitted the name of one of the plaintiffs from a court filing. Kagan and her fellow clerks pleaded with Marshall to say that this accident was not fatal, but Marshall refused, citing the essential role that obedience to legal rules play in protecting the least fortunate:
The Justice referred in our conversation to his own years of trying civil rights claims. All you could hope for, he remarked, was that a court didn’t rule against you for illegitimate reasons; you couldn’t hope, and you had no right to expect, that a court would bend the rules in your favor. Indeed, the Justice continued, it was the very existence of rules — along with the judiciary’s felt obligation to adhere to them — that best protected unpopular parties. Contrary to some conservative critiques, Justice Marshall believed devoutly — believed in a near-mystical sense — in the rule of law. He had no trouble writing the Torres opinion.
Men and women who seek to lift up the poor and the downtrodden, in other words, must rely on the law to do so. And this very enterprise depends on the law itself being afforded deference and legitimacy by officials who would rather disregard it. Meanwhile, men and women such as Murray, who wish to shield the already powerful from the forces of government, may do so either by making the law more favorable to the most fortunate or by tearing down the institution of law itself. In a state of nature, the strong man always eats first.

This is why liberalism is an inherently more challenging project than conservatism. Liberals must constantly fight a two-front war — supporting laws that extend opportunity broadly while simultaneously recognizing the legitimacy of many laws that undermine this goal. Charles Murray, meanwhile, can work within the edifices of government or he can simply decide to tear the entire edifice down.


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