The Volokh Conspiracy

Kashmir Hill and David Lat of Above the Law have an interesting Washington Post column urging Justice Clarence Thomas to run for president. I know Lat because he was a year ahead of me in law school. He’s a very smart guy, and I have great respect for all the success he has achieved as a legal blogger. But I think he and Hill are barking up the wrong tree here.

I see a few positives in a Thomas candidacy. As Hill and Lat point out, Thomas is smart, eloquent, and has significant libertarian leanings. A black Republican presidential nominee might also have great symbolic value, even despite (or perhaps because of) Obama’s historic breakthrough.

Nonetheless, there are very strong arguments against a Thomas run that easily outweigh the positives. First, it would surely reopen the whole issue of Anita Hill’s sexual harassment charges. Whether you think that Hill was telling the truth or not, there is no doubt that the press and public opinion would focus on this issue. It would quickly become an immense distraction, and greatly reduce Thomas’ chances of winning.

On this point, Hill and Lat say only that Thomas “has already survived the nasty political attacks that marked his 1991 confirmation hearings.” He survived them in the sense that he (just barely) got confirmed. But the charges continue to dog Thomas to this day, and a presidential campaign would surely reopen this can of worms. It would have an immensely polarizing effect, and make it more difficult for Thomas to appeal to constituencies that aren’t already predisposed in his favor. We got a foretaste of what might happen when the Hill issue resurfaced three years ago when Thomas published his memoir. That controversy, of course, was nothing compared to what would happen if Thomas became a serious presidential contender.

The second argument against a Thomas run is even more important: he would have to resign from the Supreme Court and Barack Obama would get to pick his successor. I have been very critical of Thomas’ positions on several issues (e.g. – here). On balance, however, he has been one of the most libertarian and originalist justices, and I would be sorry to lose him.

Right now, the Court has a narrow 5-4 conservative majority. If Obama replaces Thomas with a liberal, the balance would flip. Hill and Lat (who is a conservative himself) try to minimize this risk by arguing that “[t]hus far, Obama has not nominated hard-core liberals to the court; his recent choice of Solicitor General Elena Kagan disappointed many on the left.” I remain unpersuaded. Obama’s first nominee, Sonia Sotomayor, has turned out to be a reliable liberal vote. Given her previous record, this should not have been a surprise; on several key issues, such as property rights, she was actually somewhat further to the left than the rest of the liberal bloc on the Court.

Elena Kagan may turn out to be slightly less liberal than the other potential nominees Obama was considering. Still, she is likely to vote with the liberal bloc on most major issues, and is certainly far more liberal than Thomas. The same is likely to be true of any justice Obama nominates to replace Thomas. That nominee may be a bit less liberal than Sotomayor. But he or she will still support the liberals on most issue and will still be very far from Thomas’ positions. This is especially likely if, as expected, the Democrats retain control of the Senate after the November elections.

Hill and Lat also contend that Thomas could make up for the loss of his seat by appointing conservative justices to replace liberal ones if he wins in 2012. However, the combination of an improving economy and the Anita Hill issue will make it difficult for Thomas to beat Obama that year. If circumstances arise that do make a Thomas victory possible, they would also make a win by a different Republican nominee at least equally feasible. If any Republican other than Thomas wins in 2012, he could both hold Thomas’ seat and replace whatever liberal justices happen to retire during his term.

There are other aspects of Thomas’ record and personality that might impede his candidacy. For example, he does not seem to be a person comfortable with the constant glare of media attention that surrounds a presidential campaign. Quotations from his many forceful Supreme Court opinions would probably provide good fodder for clever attack ads (especially if taken out of context).

In sum, a Thomas presidential candidacy strikes me as a bad idea. The only people likely to benefit are liberals who would welcome the opportunity to replace Thomas with an Obama nominee, and anyone who would enjoy relitigating the Thomas-Hill controversy.

The Washington Post reports that many members of Congress have substantial investments in the industries they oversee.  Specifically, many members’ investments overlap with their respective committee jurisdctions.

On the House Agriculture Committee, which holds sway over farm policies and subsidies, members had farming and agribusiness investments worth five times on average the amount held by other colleagues in the House. Many of the committee members’ holdings were in family farms. Nothing prevents those members from also receiving farm subsidies, and in the past, some have.

Likewise, House Energy and Commerce Committee members, who routinely hold hearings about telecommunications and computer issues, had heavier than average investments in companies such as Oracle, Nokia, AT&T and Verizon.

House Homeland Security Committee members also had more communications and electronics holdings as a group than the House as a whole, and House Transportation and Infrastructure Committee members as a group owned almost six times more holdings in transportation firms.

In the Senate, the Banking, Housing and Urban Affairs Committee had on average almost twice the value of holdings in finance, insurance and real estate as that chamber as a whole. The Senate Environment and Public Works Committee members had almost three times the value of agribusiness holdings as their colleagues on other committees.

As the story notes, judges must recuse themselves from cases involving any firms in which they hold investments, even if the investments are quite small. No equivalent rule applies to legislative officials.

The NRA’s annual members meeting was held last weekend, in Charlotte, North Carolina. Since I’ve been going to these events for the last two decades, I’d like to offer a report on how the Convention has changed over the years, and some thoughts about the NRA’s past and present. Continue reading ‘NRA Convention report’ »

The Pharmaceutical Research and Manufacturers Association is co-sponsoring ads in Nevada thanking Senate Majority Leader Harry Reid for his efforts to create jobs in Nevada.  As the Wall Street Journal editorializes, this is a fairly transparent effort to  repay Reid for pushing through health care reform.  PhRMA invested heavily in trying to pass health care reform, and the bill contained lots of goodies for pharmaceutical companies — here’s one of my favorites.  Helping Reid get re-elected could also blunt Republican efforts to scale-back the reforms.

As Politico‘s Ben Smith comments,”This isn’t lobbying, technically, but from PhRMA’s perspective, it’s an interesting way to reward a powerful legislator for furthering your corporate interest.”  I think the ad also suggests that analysts should not be so quick to assume that Citizens United will benefit Republicans more than Democrats.  Heavily regulated industries have tremendous incentives to curry favor with their regulators (and those who hold the regulators’ purse strings), so one should not assume that corporate political spending will tilt right.

This week’s National Journal poll of political bloggers asked about the impact of the Wall Street reform issue on the midterm elections. Ninety-four percent of the Left bloggers thought that it would help Democrats a lot or a little. The Left was evenly divided between expecting the issue to hurt Republicans a little, or to have no impact. My guess was that it would hurt Republicans a little, although the result might depend on the substance of what the Republicans do: “Republicans would be wrong, as a matter of policy and of politics, to oppose reforms which would reduce the ability of Wall Street to make the public pay for losing bets on complex financial instruments. It would be politically self-destructive for anyone to vote for a bill which provides congressional pre-authorization for more bailouts, including bailouts of the creditors of an insolvent Wall Street firm.” And yes, I’m aware the the bailout fund is now gone from the bill; but the bill still has authority for the executive branch to take money from prudent banks and give it to the reckless creditors of imprudent banks. In general, the bankruptcy laws provide a fair and orderly process to terminate the operations of a bankrupt financial services company; the Dodd bill, in contrast, provides nearly limitless executive power, almost no due process protections, and tremendous opportunity for abusing the system to help politically-favored creditors, or to threaten political opponents with federal destruction of their company.

Asked about what areas the President’s deficit reduction commission should focus on, the bloggers split. A hundred percent of the Left, and 50% of the Right (including me) wanted the commission to consider defense budget cuts. Huge majorities of the Right, and 36-46% of the Left wanted consideration of cuts in domestic discretionary spending, social security, and medicare. (I was for considering cuts in all these.) Eighty-seven percent of the Left, but only 37% of the Right, wanted consideration of tax increases. I favored an alternative approach: “Instead of tax increases, elimination of corporate welfare could raise a great deal of new revenue.”

p.s. Readers looking for good ideas on corporate welfare cuts could start with this collection of materials, from my colleagues at the Cato Institute.

The Democratic Strategist (co-edited by William Galston, Stan Greenberg, and Ruy Teixeira) aims to provide “serious, data-based discussion of Democratic political strategy.” Today, a special “Urgent” issue was published, regarding the Supreme Court and warning about the “covert extremist agenda” of the Republican right. The report raises an alarm about the legal agenda currently promoted by “the Christian Right, the Tea Party Movement, and the radical Federalist Society legal wing of the Right.” The report provides three examples. First:

Since the 1990’s, the Christian Right has sought to replace the traditional American separation of church and state with the notion that the U.S. was actually created as a “Christian Nation” in which Christianity was intended to receive favored treatment by government policy. The most startling recent expression of this view was last month’s decision by the Texas School Board to remove Thomas Jefferson—the symbol of America’s tradition of religious freedom and tolerance—from the states’ history curriculum.

The report is accurate in that some (although hardly all, or necessarily most) supporters of the “Christian Right” believe that the government should favor Christianity over other religions. Most of the Christian Right does believe, as did Chief Justice Rehnquist, that in some circumstances the government may favor religion over irreligion. See Wallace v. Jaffrey (1985) (Rehnquist, J., dissenting from decision to declare moment of silence in schools unconstitutional).

The report’s description of the Texas State Board of Education (not the “Texas School Board”) is inaccurate. Under the new  proposed standards, Jefferson is part of the required curriculum for 5th grade American History, 8th grade American History, and the high school class in U.S. Government. He was removed from the standards for World History class, because the Texas State Board thought that he should not be included among “European Enlightenment philosophers.” In the 8th grade American History class, not only is Jefferson required, so is his good friend, the famous enemy of organized religion, Thomas Paine. Only George Washington appears in the Texas curriculum standards more often than does Jefferson.

Item 2 in The Democratic Strategists’ parade of horribles is the lawsuits against Obamacare:

The basis for such suits—typically a denial of the power of Congress to legislate economic matters under the Commerce and Spending Clauses of the U.S. Constitution—is automatically and unavoidably a collateral attack on the constitutionality of a vast array of past legislation, including most New Deal/Great Society programs such as Social Security and Medicare.

The word “basis” has a footnote cite to an article by Matthew Yglesias. The Yglesias article criticizes the notion that  Commerce “among the several States”  should be “understood as basically about transporting goods across state lines.” Yglesias points out: “the Louisiana Purchase, the Bank of the United States, Henry Clay’s ‘American System,’ a transcontinental railroad, land grant colleges, etc. And in particular since the New Deal the commerce clause has always been understood as granting wide-ranging authority to regulate the national economy.” True enough in a broad sense (although most of Yglesias’s 19th century examples do not involve the interstate commerce power). So if the lawsuits were premised on the idea that the federal power over interstate commerce extends only to the sale of goods across state lines, The Democratic Strategist’s warning would be apt.

However, if you read the complaints filed by Virginia and by the 18-state coalition led by Florida, there is no argument against the interstate commerce power as it existed on March 1, 2010. Rather, the complaints argue against an unprecedented expansion of the interstate commerce power: namely the purported power to force an individual to purchase a product he does not want to purchase, and an unprecedented use the tax code to punish someone for choosing not to purchase a product.

While the cases do complain about changes in the state funding formula for Medicaid, they never question the constitutionality of Medicaid itself. Thus, an attack on Obamacare is not “automatically and unavoidably a collateral attack” on even an iota of the New Deal and the Great Society. As I have previously detailed, finding the Obamacare mandate and its associated tax to be unconstitutional does not require overturning, or even questioning, a single precedent in existing Supreme Court law.

The third and final item in the parade of horribles:

The Republican revolt against any cooperation with Democratic legislation and initiatives has carried an extraordinary number of conservatives into a general attitude of defiance towards the rule of law itself and flirtation with constitutional doctrines of state nullification and succession. These doctrines were developed as arguments for state sovereignty by the Confederacy in the civil war era and as 1950′s and 1960′s era segregationist strategies to thwart desegregation and civil rights for African-Americans. [And, later in the document:] Let them bring it on with all the segregation-era legal strategies of succession and nullification.

Well, not exactly accurate. First, the doctrine of “succession” describes how Barack Obama became President after George W. Bush. One of the first uses of the constitutional doctrine of succession was when John Adams became President after George Washington.

The doctrine of “secession” long predated the Confederacy. It was advanced by, among others, some New Englanders who wanted to leave the Union during the War of 1812, by Southerners who advocated the right when objecting to the 1828 Tariff of Abominations, and by some persons at the very end of 18th century who feared that President Adams was moving the country towards dictatorship. Thomas Jefferson, in his 1798 letter “Patience and the Reign of Witches,” counseled against secession as response to “a temporary superiority of the one party,” notwithstanding the “oppressions of enormous public debt. . . . Better keep together as we are. . . If the game runs sometimes against us at home we must have patience till luck turns, & then we shall have an opportunity of winning back the principles we have lost . . . .”

The Democratic Strategist rightly reveres the great Thomas Jefferson, so it is surprising that TDS does not know (or, at least, does not acknowledge) that the constitutional doctrine of nullification was first articulated by Jefferson himself, in the Kentucky Resolution of 1798. As Jefferson put it, “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” James Madison, the Father of the Constitution, articulated the milder doctrine of Interposition, in the Virginia Resolution, declaring that the states “have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

The Democratic Strategist affirms “that the Democratic Party proudly upholds the traditional American view of the constitution—the view of the founding fathers of this country—George Washington, Thomas Jefferson, Benjamin Franklin, Alexander Hamilton and John Adams.”  The Democratic Strategist then accuses its imagined enemies of being anti-american for allegedly trying “To establish the right of individuals or states to ignore and disobey any laws that they happen to interpret as impinging on their freedom or natural rights”  and the right of individuals “to ignore any laws they choose.”  This is straw man. As far as I know, no employee of The Federalist Society ever said that any individual could ignore any law he chose. All of the Founders, including Washington, Jefferson, Franklin, Hamilton, and Adams, did believe that in cases of great urgency and necessity, disobedience was a moral duty–which is why they helped to remove one government and replace it with another in 1776. Even under that new government, Jefferson and Madison thought that states had a duty to protect their citizens from federal laws which violated both natural rights and the Constitution–as did the Sedition Act, in the view of Jefferson and Madison. And of course many great Americans in the Civil Rights Movement in the 1960s refused to obey racially discriminatory laws which they believed to be contrary to natural rights and the Constitution.

Americans in the 21st century are free to disagree with Jefferson and Madison, just as did many Americans of 1798, since other some other state legislatures voted to reject the call to support the Kentucky and Virginia resolutions.

Near the end, the TDS memo announces: “Let them bring it on with all the attempts to write Thomas Jefferson and the separation of church and state out of American history.” May people of every political persuasion resist every attempt to write Thomas Jefferson out of our history. May everyone extol, as does TDS, ”the traditional American view of the constitution—the view of the founding fathers of this country.” And so in our modern debates on the Supreme Court and judicial policy, may everyone be free to disagree with Thomas Jefferson and James Madison, but let no-one who espouses the constitutional doctrines of these great Americans be maligned as unamerican.

One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people’s grant to power to Congress to regulate commerce  among the several states does not include the power to compel people to engage in commerce. Jack Balkin, writing in the New England Journal of Medicine, has two responses: 1. Yes it does, because of Wickard and Raich, since people without insurance will eventually get sick and then buy health services; and allowing these people to buy health services outside the congressional system would undermine the congressional regulation. 2. The mandate is structured as a tax.

For the moment, let’s put aside the question of whether the Obamacare tax is an Article I tax, or a 16th Amendment income tax. Does Congress have the infinite power to control people’s behavior (such as by ordering them to engage in commercial transactions) via the tax power?  I suggest not. When the Bill of Rights was being debated in front of Congress, the skeptical Rep. Theodore Sedgwick of Massachusetts asked if there should also be an enumeration that “declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” 1 Annals of Congress 759-60 (Aug. 15, 1789). Sedgewick’s point was that national laws about bedtimes and hat-wearing were self-evidently beyond the authority of Congress.

However, if the tax power means that Congress can order citizens to buy something they don’t want to buy, why does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc? Or who wear hats so little that they increase their risk of skin cancer? Or who wear hats so often that they dangerously reduce their levels of vitamin D? In Sonzinsky v. United States (1937), the Supreme Court declared that it would not inquire into hidden regulatory motives that might have motivated a tax. But in Sonzinsky, the underlying activity (running a for-profit commercial business selling machine guns) was unquestionably within the scope of commercial activities that might be subject to an excise tax.

In contrast, not buying health insurance is not in its nature a commercial taxable activity. Neither is wearing a hat, or getting up when you please, or going to bed when you think it proper.

Sonzinsky is deferential to congressional motives, but it does nothing to support the claim that non-commercial activity may be taxed. Construing the tax power as less than infinite–as not encompassing the power to tax bedtimes or the decision not purchase a product–is strongly supported by the Ninth Amendment. This is so whether one agrees with Randy Barnett’s view of the Ninth Amendment (as an enforceable guarantee of natural rights) or with Kurt Lash’s (as a rule that enumerated powers should be narrowly construed so as not to violate natural rights, including the right of self-government in the states).

Finally, as Jack Balkin has ably argued, “Constitutional change occurs because Americans persuade each other about the best meaning of constitutional text and principle in their own time. These debates and political struggles help generate Americans’ investment in the Constitution as their Constitution and they create a platform for the possibility – but not the certainty of its redemption in history.”

Americans today are not bound to meekly accept the most far-ranging assertions of congressional power based on large extrapolations from Supreme Court cases that themselves come from a short period (the late 1930s and early 1940s) when the Court was more supine and submissive to claims about centralized power than was any other Supreme Court before or after in our history. American citizens, in the political process and in their personal lives, will ultimately have the final word on the Constitution.

A large and permanent majority of the American people immediately accepted Social Security as a constitutional solution to poverty among the elderly and to massive unemployment (since Social Security would open up jobs by encouraging people to retire sooner). The American people have not accepted Obamacare as a constitutional solution to health insurance problems. If the American believe that there is a “crisis” about the high cost of health insurance, then the American people can also believe that the solution is not to punish people for refusing to buy overpriced insurance that they don’t want. The American people can reject the notion that our Constitution should be contorted and distorted to accommodate such a destructive and intrusive scheme.

It is eminently within the authority of We the People to act politically on our constitutional beliefs that the congressional power to regulate interstate commerce does not extend to forcing people to buy a product which Congress has forbidden to be sold across state lines; that the power to regulate interstate commerce is not the power to compel a person to participate in instrastate commerce; and the that power to levy income or excise taxes does not include the power to impose punishment in the form of punitive taxes on persons who choose not to buy something–or who choose whether to wear hats and when to sleep.

p.s. PENNumbra had a good debate on the topic last fall, featuring Jack Balkin vs. Lee Casey & David Rivkin.

This week, the National Journal poll of political bloggers moves to a new spot on the NJ website, “The Hotline Blogometer.” Besides the weekly poll, the Blogometer contains a daily report on what leading liberal and conservative political bloggers are writing about the controversies of the moment. In this week’s poll, bloggers were asked “On a scale of 0 to 10, what’s the likelihood that Congress will pass health care reform?” Based on the information that was available in the earlier part of this week, the Left answered 7.8, while the Right said 5.6. Which is not terribly far apart.

I voted for 5, and wrote “In May 1994, President Clinton used the full force of his office to convince House Democrats to drive their majority off a cliff, by enacting a ban on so-called ‘assault weapons’ (ordinary firearms with cosmetically incorrect features). President Obama and House leadership seem determined to repeat a similar mistake, except on a much greater scale.”

Question 2 asked the Left “Is Tim Kaine an asset or a liability as DNC chairman?” The Right was asked about Michael Steele and the RNC. On both sides, only 31% voted for “asset.” The only writer who had anything good to say about Michael Steele was me: “Probably some of each. Still having trouble understanding that his job is to help the team, not to be the star.”

Finally, the bloggers were asked if Obama would be a one-term President. Thirty-one percent on the Left, and 71 percent on the Right thought so. Of course it’s far too early to predict with any confidence, but perhaps it would be accurate to say that his current chances for re-election are in the 30-70% range. He’s far from doomed, but not looking particularly solid right now either. I guessed the one-term would be the more likely result: ”He will have plenty of opportunities in 2011-2012 to change his current self-destructive course. But it seems more likely that he will double down on his failures and his policies, which alienate the majority of the American people.”

The critical theory journal, Telos, returns to one of its earliest themes, the critique of what its editors in the 1970s and 80s termed the “wholly-administered society” and “New Class” analysis.  It shifted away from those themes and modes of analysis for a long time, but it has re-opened that discussion with a bang.  Editor Russell Berman, Stanford comparative literature and European studies professor and Hoover Institution senior fellow, introduces a short special section of articles on the New Class with a first rate introductory essay that offers the backdrop to New Class categories and defines their relevance today.

This is a marvelous short essay.  Telos is a difficult, intellectually challenging journal; it is not for everyone.  But its editors – who break along many intellectual, ideological, political, and other lines; there’s a Left Telos and a Right Telos and many others besides – are ferociously intelligent and never suffer fools gladly.  (Its founding editor, the late great Paul Piccone, never suffered fools at all.)  Beneath a tough intellectual language that many will find incomprehensible, Telos is that rarest of things, an intellectual journal of the highest order beholden to no academic department, no academic politics, intrigue, budgets, tenure decisions, careerism, or anything else.  No one’s academic career ever flourished on account of writing for Telos, so far as I know.  On the other hand, its alumns over the decades include a remarkable number of great scholars in social theory.

Berman makes a persuasive case for the relevancy of New Class theory and the theory of the wholly administered society in today’s urgent circumstances.  This will almost certainly not be Telos’s last venture into this terrain in today’s times.  This essay is highly readable; Telos is not.  Be warned.  But it needs to read and debated by intellectuals looking for new ways of exploring contemporary society, and its difficult language and insights deployed into wider intellectual thought.  Pop sociologists on the Left like David Brooks or Thomas Friedman – and many journalists on the Right, too – are instinctively and correctly drawn to these kinds of knowledge class categories.  They have some terms but no theory; and theory is sometimes necessary to understanding, social theory, and not just surface theories of economic rationalism.

To talk of a “new class,” then, conjured up the unquestionable epistemology of class analysis, while simultaneously challenging the notional outcome: instead of the end of the state and classlessness, one was stuck with police states and a new class that, while eminently cooler than the Bolsheviks of yore, still exercised a dictatorship (of the not-proletariat) while skimming off the benefits of unequal power. The phrase turned Marxism against Marxism during those decades when the fall of the Berlin Wall was not even imaginable.

Migrating across the Atlantic, the term took on a new meaning in the last third of the twentieth century as a designator of the rise of a new post-industrial professional class, the cohort of the student movement after 1968 on its trajectory into social, cultural, and political power. At stake was the gradual displacement (if not disappearance) of the old markers of class distinction and the alternative privileging of sets of linguistic and intellectual capacities, combined with the assumption that greater intelligence implied a de facto natural claim on greater power: meritocracy means that the smarter should rule. Yet this trope just reiterated, in a new context, the problem of intellectuals and power, a curious echoing of East European rhetoric. As the best and brightest claimed power in order to rule better and with greater radiance, their critics came to dub them a “new class” in order to draw attention to their sanctimonious aspirations to pursue their own interests by remaking society in their own image. Paradoxically, the conservative critique of the new class could make the “Marxist” move of pointing out how universalist claims masked particularist interests. What ensued was a decades-long conflict between, on the one hand, advocates of more enlightened and ever more expansive administration of society, and, on the other, proponents of reduced state oversight, defenders of society against the state, and the deregulated market against the long reach of political power. The political wrangling of our current moment still takes place within this framework. The complexity of the new class and its culture, however, is that while it sets out to administer society and establish bureaucracies to regulate social and economic life domestically, at the same time it attempts to ratchet down the political and military power that might be projected externally: a strong state toward its subjects, a weak state toward its enemies!

The new class transition to linguistic, cultural, and technocratic expertise unfolded during the profound shift toward a symbolic service economy—new class ascendancy took place during the era of the dramatic decline of manufacturing and the concomitant shift of unionized labor organization primarily into the public sector—and it privileges capacities of semiotic manipulation over material production or even military prowess. Its signature contribution to foreign policy is “smart power,” a term that nobly implies that boots on the ground are dumb and that some—still elusive—strategic rhetorical eloquence will make enemies vanish without ever firing a gun, since language is its ultimate power. The corollary economic policy is negative, defined by discourses of environmentalism that imagine achieving greener national spaces by exporting dirty manufacturing and energy consumption to the developing world: not in our backyard. This is not to deny environmental concerns, but rather to recognize them as laden with implications for traditional economic sectors. Most importantly, the transition to the culture of the new class has, in complex ways, taken part in the revolution of the new technologies, with the new class at first benefiting from them, thanks to their advantaging the educated and wealthy—that social inequality known as the “digital divide.” But the new technologies, especially the new networks of communication, have undermined the former concentrations of media power and opinion-making, allowing for the emergence of new populist forces, decidedly not new class in their character and programs.

As contemporary as these developments may seem, it is equally important to recognize how traditional, indeed classical, is the question that lurks inside the problem of the new class: intellectuals and power, enlightenment and politics, conceptual thinking and lived life. From one point of view, the rise of the new class involves the priority of thinking—not any thinking, however, but a technocratically foreshortened, instrumentalist, and administrative thinking—over the lifeworld of everyday interactions, communities, and traditions, and the orders of human nature. It is the assertion of the primacy of logic against the complexity of living, and it runs the risk therefore of collapsing either into an irrelevant ineffectiveness, an idealism incapable of grasping the real, or a destructiveness, when it tries to refashion ways of life into its own invented programs. Human communities frequently show resilience and creativity, and they can survive more than one expects; but those existential resources are not infinite, and aggressive programs of social engineering can eventually destroy the patterns of living, the structures of meaning—the families, communities, faiths, nations, cultures, traditions—when they try to control them. Dismantling those patterns of familiarity leaves a world less familiar—not more open and freer, as modernists believed, but colder and less welcoming, perhaps the real new class agenda. It lays claim to a higher morality; it wants to make the world better; it wants to make us better, but it may only make us more alone.

This week’s National Journal poll of political bloggers asked left-leaning political bloggers “If Congress enacts something close to President Obama’s latest health care reform plan, how would that affect the Democratic Party in the midterm elections?” The right-leaning bloggers were asked the same question about the effect on Republicans. On the Left, 40% said that enactment would help Democrats a lot, and 27% said it would help a little. On the Right, 77% said it would help Republicans a lot, and 18% thought it would help a little. I thought it would help Republicans a lot, and wrote, “This is yet another example in which the best thing that Democrats can do to harm the Republicans in the next election is also the best thing that they can do for the country: namely, defeat Obamacare.”

The second question asked: “Would the Obama administration be better off if these individuals [David Axelrod and Rahm Emmanuel]  had more influence, or less influence?” On the Left, 64% favored more influence for Axelrod, and 100% wanted less influence for Emmanuel. On the Right, 93% wanted less influence for Axelrod, and 50% wanted more influence for Emmanuel. I wrote: “Rahm is politically brilliant, and has a sense of the possible. Imagine how much stronger Obama might be right now if he had followed Rahm’s advice to pass a variety of discrete fixes for health care rather than investing his entire presidency in a huge omnibus bill.” In contrast, “Axelrod’s recent interview in the N.Y. Times indicates that he is among the Obama devotees who have wrongly convinced themselves that the only problem with Obamacare is messaging, rather than substance.

So suggests John Avalon, in a Daily Beast column “The Secret History of the Birthers.” He traces birtherism to a Texas woman named Linda Starr, who was a Hillary Clinton delegate to the 2008 Texas state Democratic Convention. Avalon writes that Starr “was also cited as a key source for CBS’ discredited election year investigation into George W. Bush’s National Guard records that led to Dan Rather’s replacement after 24 years as the evening news anchor.” Avalon links to the Thornburgh/Boccardi report, which was conducted at the request of CBS News to examine CBS’s conduct in producing the infamous 60 Minutes story about Bush supposedly evading National Guard service and then having the records scrubbed. As the report details, Starr made the claim about Bush in an article on her website, three days before the 2000 presidential election. She also played a key role in serving as an intermediary for CBS to obtain the document which purported to be National Guard memo regarding the removal of NG records about Bush. The Thornburgh/Boccardi report does not claim that Ms. Starr knew that the document  was a clumsy fabrication.

At the very least, however, the fiasco of the Bush National Guard story shows that Ms. Starr did not provide her Internet readers, or CBS, with a story which could withstand factual scrutiny. Accordingly, if Avalon’s reporting is correct, he has provided yet another reason for people to disbelieve the (already-implausible) assertion that President Obama was not born in the United States. In contrast to the way the mainstream media initially handled the 2004 Bush National Guard story, the mainstream media did a better job in 2008 by not embracing a story about a presidential candidate which could not be supported by solid, verifiable facts.

Last week’s National Journal poll of political bloggers asked for an estimate of House Democratic losses in the 2010 election. While the answers are reported in clusters of 10, the median estimate for the Left appears to about 20 seats. The median on the Right was in the mid-30s. I estimated 38, adding “Could be less if the congressional leadership and Obama correct their course, but they do not seem inclined to do so.”

Question 2 asked the Left if Democrats would benefit politically from another televised Q&A session by President Obama with House Republicans. Seventy-eight percent of the Left expected Democrats to benefit. Right-leaning bloggers were asked if Republicans would benefit, and 57 percent said yes. I was in the majority: “All Americans would benefit. All Republicans are Americans. Ergo, Republicans would benefit. The metric of success should not be partisan benefit, but rather national benefit.”

[youtube]http://www.youtube.com/watch?v=yo7HiQRM7BA[/youtube]I’m at an academic conference at Stanford Law School this weekend and have had my attention drawn to the latest internet sensation: The “Demon Sheep” Video.  The video was produced for Carly Fiorina’s Republican  Senate campaign.  It is a 3 and 1/2 minute “attack ad” against Tom Campbell, a respected former Stanford law professor and congressman. 

    To dramatize its claim that Campbell is a big-spending wolf in fiscal-conservative sheep’s clothing, the video contains, well, a demon sheep — a sheep with glowing red devilish eyes. 

  The ad apparently has more than 375,000 views is something of an eye-opener, leading Mary Ham to write at the Weekly Standard:  “Someday, when your children are grown and the election of 2010 has long past, people will ask where you were when the demon sheep first came to American politics.”  (Read the whole thing here.)

  The ad is being widely lampooned across the internet (example here).  To mock the ad, another opponent of Fiorina in the Republic primary (Chck DeVore) has website that is the “home” of SFTEODSFOPD, or Society for the Eradication of Demon Sheep from our Political Discourse.

  The ad seems a bit over the top to me.   While the ad’s defenders say it is attracting lots of attention to the Fiorina campaign, the kind of buzz it is attracting will test the old saw that there’s no such thing as bad publicity.  I close with [insert your favorite sheep pun here ...]

Update:  A reader suggests I should have closed with any of the following:

1. The ad’s creator should take it on the lamb.
2. Ewe can fool all the voters some of the time, and some of the voters all of the time, but ewe. . . .
3. Fame is fleecing.
4. Baaaa humbug.
5. Where there’s a wool there’s a way.
6. I must be a mutton for punishment.
7. Cogito ergo ram. (I think; therefore, I ram.)

Last week’s National Journal poll of political bloggers asked “What’s the most likely outcome this year of President Obama’s health care reform initiative?” The plurality choice on the Left, and the majority choice on the Right, was “Scaled-back legislation will be enacted.” I agreed: “Remember, even after the defeat of Hillarycare, many of its sub-elements were later enacted even by Republican Congresses. While time ran out on Hillarycare in the fall of 1994, this year the Obamacare supporters have nearly a year left to get something done.”

The second question asked about the political effects of the Citizens United decision. Seventy percent of the Left thought it would help Republicans a lot. Only 6 percent on the Right thought the same, while another 33 percent thought it would help a little. The leading choice on the Right was “not much impact.” That was my view, based on empirical experience: “Based on the experience of about half of the states, which never restricted the free speech rights of people in corporations, it’s hard to see much of a partisan impact from respecting the First Amendment.”

This week’s National Journal poll of political bloggers asked “Which of these pieces of legislation, if enacted, would help the Democrats’ political prospects in the midterm elections?” Bloggers could choose more than one. The leading choice for both Left and Right bloggers was “job creation.” The only other items which got more than 50% from either group of voters was deficit reduction (from the Right), and health care and financial industry reform (from the Left). I thought that most of the available choices would be helpful for the Democrats, if done properly: “”Cap-and-trade would be a political disaster. Taxing banks in general (rather than dealing with the subset that helped cause the meltdown) would be of little benefit. Greatly reducing the deficit now (as opposed to promising to reduce it later) would be enormously helpful. The financial/health/immigration/job items could all be helpful, but only if they are done in a fiscally responsible way, do not reward illegal aliens, and are moderate enough to pick up some significant GOP support.”

The second question was “Given the outcome of the Massachusetts Senate race, what would be best politically for [Democrats/Republicans] on health care reform?” Pluralities on the Left (for Democrats) and the Right (for Republicans) thought that House passage of the Senate bill would be the best political outcome. My view: “Politically speaking, the worse the better — passage of the Senate bill would be great, and passage of the House bill even better. For the good of the nation, however, it’s better to start over — and for the starting points to be allowing the purchase of insurance across state lines, ending the tax code’s bias for employer-provided insurance, and moving to a true insurance system, in which customers pay up front for routine costs, with insurance in reserve for extraordinary costs.”

Politico has an interesting story on how Democrats are responding to Tuesday’s election results, in which Senator Barbara Boxer is quoted saying that “Every state is now in play.”

Get out and knock on doors. My father’s latest column explains why, based on his own experience as a candidate (with an 11-2 election record).  Six months of door-knocking–every two years–helped him far outperform his party, and win some tough elections.

The column also examines how the Colorado state Department of Regulatory Affairs might regulate medical marijuana dispensaries.

From a segment on the Russian station for Radio Liberty. (Transcript, plus audio link.) For those of you who don’t read Russian, the short explanation is: The desire of voters to send a message of their disapproval of George Bush is considerably less significant than it was in 2006. Generally speaking, American prefer divided government.

An interesting tidbit from Sunday’s Washington Post about a new Washington Post-ABC News poll:

The poll also shows how much ground Obama has lost during his first year of trying to convince the public that more government is the answer to the country’s problems. By 58 percent to 38 percent, Americans said they prefer smaller government and fewer services to larger government with more services. Since he won the Democratic nomination in June 2008, the margin between those favoring smaller over larger government has moved in Post-ABC polls from five points to 20 points.

This week’s National Journal poll of political bloggers asked for a prediction about how many House seats the Democrats would lose in the November 2010 elections. Significantly, not one of the bloggers predicted a large enough loss to change control of the chamber.  On the Right, 45% predicted a loss of 31-40 seats, while the rest predicted lower. On the Left, the median was in the 11-20 range.

The second question asked for a grade on President Obama’s economic performance. The Left gave him a C-, while the Right awarded a D-. I voted for F: “Taking the irresponsible Bush deficits and making them much, much worse. Spending vast amounts of the ‘stimulus’ on wasteful pork, giveaways and political payoffs rather than infrastructure or other useful projects. Continuing the Bush TARP program of transferring wealth from productive working people to the bankers who helped cause the meltdown. And turning the auto industry into a federal welfare program.”

Over at Opinio Juris, my co-blogger Kevin Jon Heller has a post on the German political theorist Carl Schmitt and the history behind his brush with a Nuremberg prosecution at the end of the Second World War.  It is drawn from research for Kevin’s book on the Nuremberg trials; given the interest that law professors and others have taken in Schmitt’s work over the years, I thought the VC audience would find it interesting.  Kevin has done very interesting research into this whole episode at Nuremberg:

I am particularly fascinated by how close Carl Schmitt, the political theorist who has influenced both the right and the left, came to being a defendant in one of the trials.  After Schmitt joined the Nazi Party in 1933, he had been appointed the head of the Union of National-Socialist Jurists and had written a number of pro-Nazi and anti-Semitic articles for the self-published German Jurists’ Newspaper.  Schmitt had a falling-out with the SS in 1937 and resigned his position as Reich Professional Group Leader, although he was able to keep his professorship at the University of Berlin because Goering protected him.

As I detail in the book, the OCC submitted three different trial programs to the US’s Occupational Military Government (OMGUS): on 14 March 1947, 20 May 1947, and 4 September 1947.  Schmittt was listed in the first program as a possible defendant in what the OCC called the “Propaganda and Education case.”  …  At some point between 14 March and 20 May, when the OCC submitted its second trial program, Taylor’s staff decided not to prosecute Schmitt.  The second trial program no longer includes Schmitt as a possible defendant.

Kevin cites to an article in the social/critical theory journal Telos, of which I was long an editorial associate, along with the late great founding editor Paul Piccone, and an astonishingly long list of people you might not have expected to have done a stint with a New Left, then Post New Left, then sometimes left and sometimes right editorial board.  Fred Siegel, Seyla Benhabib, Jean Bethke Elshtain, Jean Cohen, Andrew Arato, David Pan, Joe McCahery Moishe Gonzales, it’s a really, really long list.  (Once in a while it has done important articles on critical jurisprudence – I am proud to say that as an editor in the 1980s, I commissioned a piece from Martha Minow, “Law Turning Outward,” that bears re-reading today, if only if were online!)  It is subscription only, dense, difficult, highly abstract and theoretical reading, within a sometimes alien critical theory tradition that is part homegrown and part European intellectual inheritance – and over the course of forty years, some of the best social theory in the world.

(One of these days I’ll talk about why social theory is both important and ripe for revival.  This, despite the general collapse of social theory into mere identity politics in the academy, thus driving people interested in rigorous thinking into more technically rigorous, but also more “surface” fields, such as economics, and the imitation of economics in other fields.  Maybe I’ll ask the current Telos editor, Russell Berman, if he’d like to take a crack at explaining why it matters.)

As to Schmitt, well, Telos was largely responsible for introducing him to the American academic community, translating and commenting on much of Schmitt’s output.  Schmitt continues to resonate today – the idea of emergency, after 9/11, for example, attracted much discussion.  In Europe, Schmitt overcame his past as a Nazi collaborator – rather, it seems never to have been much of an issue – and developed a very wide following across ideological boundaries, and considerable influence on the political theory of the Continent.  One reason I first read Schmitt was that it was clear to me I couldn’t understand Continental political theory, including Habermas and many others, without understanding Schmitt; he was a crucial part of the background discussion and intellectual assumptions over decades.

In the United States, the invocation of Schmitt always raises at least as a backdrop the question of Schmitt as a Nazi party member and full-on collaborator over important years.  My own view is that Schmitt was not a Nazi, far from it – in the ways in which Nazism was truly radical, Schmitt was a reactionary.  By all measures, a morally repellent character who saw where things were going in Germany and hopped aboard, and then saw where they were going and hopped off again.  But not a Nazi in his thinking or, really, sympathies despite, true, his long list of public intellectual credentials during historically crucial years.

The truth is, as an intellectual matter, I think Schmitt has long since run out of steam in terms of what he offers to American political and social theory.  This is possibly because I was intimately involved at Telos in the Schmitt revival from the beginning, felt like I absorbed what seemed important to me, and moved on by the 90s.  For example, the notion of emergency in Schmitt is both deeper but more alien to American political thought than, I suspect, many American theorists think – they really mean something that just is regular old consequentialism pushed hard, whereas for Schmitt, such notions are part of a far deeper and more committed system.  And although I once wrote a paper not long after 9/11 with a section carrying the very Schmittian title, “Criminals and Enemies,” what I meant by that had little to do with Schmitt and I was amazed at how quickly it was cast in Schmittian terms.  Far, far more important than Schmitt in contemporary American social theory – if there were such a thing outside the cul-de-sac of identity politics – is the revival of New Class theory in the American contempory context, and a theory of elites.

This week’s National Journal poll of asked right-leaning bloggers to list the 5 most-likely Republican presidential nominees in 2012. Left-leaning bloggers were asked to name which Republican would be the strongest candidate. Mitt Romney won both races handily. I voted for Romney as most likely, but don’t think he would be the most likely candidate to win the general election: “The Republican lower tiers (e.g., Thune) might be much stronger in a general election than would be the better-known possibilities (e.g., Romney, Palin, Huckabee, Gingrich).”

Provocative, interesting essay by Walter Russell Meade in the latest Foreign Policy, The Carter Syndrome.  It argues that Obama is a Jeffersonian in his foreign policy trying to come to grips with his Wilsonianism (“Barack Obama might yet revolutionize America’s foreign policy. But if he can’t reconcile his inner Thomas Jefferson with his inner Woodrow Wilson, the 44th president could end up like No. 39.”).  Among the other matters of interest in the article is Meade setting out four broad paradigms of US foreign policy historically:

In general, U.S. presidents see the world through the eyes of four giants: Alexander Hamilton, Woodrow Wilson, Thomas Jefferson, and Andrew Jackson. Hamiltonians share the first Treasury secretary’s belief that a strong national government and a strong military should pursue a realist global policy and that the government can and should promote economic development and the interests of American business at home and abroad. Wilsonians agree with Hamiltonians on the need for a global foreign policy, but see the promotion of democracy and human rights as the core elements of American grand strategy. Jeffersonians dissent from this globalist consensus; they want the United States to minimize its commitments and, as much as possible, dismantle the national-security state. Jacksonians are today’s Fox News watchers. They are populists suspicious of Hamiltonian business links, Wilsonian do-gooding, and Jeffersonian weakness.

I like my employer’s health plan. Today I learned that under both the Senate and the House bills, I won’t be able to keep my plan. Both bills require reductions in health reimbursement benefits under my plan.

Both the Senate and the House health bills slash a significant part of my employer’s health plan — the Health Flexible Spending Account — restricting them to $2500 and restricting what they can used for.

That single change in my health plan (and my wife’s) will cause our family to pay a couple thousand dollars more each year in income taxes, and yet my FSA might still cause my employer’s plan to trigger the 40% Senate tax on Cadillac plans (I don’t know enough about the full cost of our plans to know).

Remember perhaps President Obama’s most prominently and frequently made promise from last summer:

If you like your health care plan, you will be able to keep your health care plan. Period. No one will take it away. No matter what.

If you like your plan, . . . you keep your plan.

I know that there are millions of Americans who are happy, who are content with their health care coverage — they like their plan, they value their relationship with their doctor. And no matter how we reform health care, I intend to keep this promise: If you like your doctor, you’ll be able to keep your doctor; if you like your health care plan, you’ll be able to keep your health care plan.

Those who argued that President Obama could not possibly keep that promise were accused of spreading lies and disinformation, of using “scare tactics.”

Now we learn that Obama’s critics were right.

If the White House won’t apologize for spreading disinformation about health care reform, at least it should pull an Emily Litella and update its “Reality Check” website to say: “Never mind.”

Last week’s National Journal poll of political bloggers asked Left-leaning and Right-leaning bloggers about their favorite political figures. Herewith, the results:

Most-admired House member: On the Left, Alan Grayson. My father’s former campaign treasurer, Denver Rep. Diana DeGette, tied for second. On the Right, tie between Jeff Flake, Mike Pence, and Paul Ryan. I voted for Flake.

Most-admired Senator: On the Left, Bernie Sanders. On the Right, Tom Coburn. I voted for Coburn.

Which current member of Congress has the brightest political future: On the Left, Alan Grayson. (A result I view as very wrong, if a bright political future includes winning re-election.) On the Right, a tie between Michelle Bachmann, Eric Cantor, and Jim DeMint. I voted for Bachmann, because I thought that she will continue to win re-election, might move up to the Senate, and continues to grow in national influence. Twelve months from now, she’ll still be rising in political influence, while Grayson will be trying to get a job as an Air America host. This isn’t a value judgment about Grayson/Bachmann, just a political prediction.

Most impressive Cabinet Secretary this year: On the Left, Hillary Clinton. On the Right, Robert Gates. I voted for Interior Secretary Salazar.

Which political figure has most impressed you this year: On the Left, Alan Grayson. On the Right, Sarah Palin. I voted for interim Honduran President Robert Micheletti, “for saving his nation from despotism and standing up to powerful foreign governments which backed the would-be despot.”

Who is the best Democratic/Republican strategist: The Left picked David Plouffe. The Right picked Karl Rove, as did I. Not so great in 2006, but pretty insightful these days.

Who is the most creative Democratic/Republican thinker: The Left chose “None,” followed by Howard Dean. The Right chose Newt Gingrich, as did I. Not a good manager, as shown by his tenure as Speaker of the House, but very creative and smart.

Which voice in the Democratic/Republican party would you like to mute: The Left wanted to silence Rahm Emanuel. On the Right, there was a tie between Gingrich, Michael Steele, and Lindsey Graham. I voted for “none,” because “Diversity is a sign of strength, and debate is healthy.”