Posted in Conservatism, Legal Rhetoric, tagged Buckley, Conservatives, John Robers, Legal Conservatism, Obamacare, rhetoric, Richard Posner, Supreme Court on July 8, 2012 |
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Here’s the link to my op-ed column today in the Greensboro, North Carolina News and Record N&R Op-Ed on Chief Justice John Roberts’ crucial vote on the constitutionality of the Affordable Care Act (“Obamacare”). With many on the Right howling about Roberts betraying the conservative cause, I thought it important to point out to my fellow swing-state voters here in the Tar Heel state that properly understood, conservatism — and especially legal conservatism — has always rejected the concept of party lines and ideological “correctness.” Discussing Roberts’ ACA vote with a former law professor of mine who has strong ties to the legal conservative movement, I was reminded that some of Roberts’ prior votes have indeed reflected typical conservative party-line thinking. But that, to my mind, is the point — and value — of his ACA vote. It shows the Chief Justice as intellectually inclined to judge each case on the merits and within its own context. The modern conservative movement, as represented by thinkers like William F. Buckley Jr., Russell Kirk, Irving Kristol, and even Ayn Rand, were adamantly opposed to ideology as a concept. They viewed it as a limiting, almost inhumane philosophical mindset that had much more in common with totalitarian, single party rule politics than with the deliberative democracy of the Anglo-American tradition. (Something Edmund Burke was writing a couple of hundred years ago regarding the revolution in France.) This shared conservative tradition is rooted in the principles of rhetoric, debate, and the exchange of ideas which formed the foundation of the ancient Greek and Roman democracies from which our culture emerged.
The reflective, creative, deliberative conservatism that Roberts represents is dwindling. As Judge Richard Posner — a powerful force in the conservative legal community — recently told NPR, “these conservatives who are blasting Roberts are making a very serious mistake.”
I thoroughly concur.
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Senator Marco Rubio was in Raleigh tonight, promoting his autobiography at one of our independent bookstores, Quail Ridge. It was an interesting choice for a Republican who has confounded conventional wisdom on a number of fronts, notably his independent stance on immigration policy. In the press gaggle after his book signing I asked him about what he thinks independent voters in North Carolina should take away from his policy views, especially considering the high number of undocumented workers here. His answer was more nuanced than the man at the top of the GOP ticket, emphasizing the need for a “temporary” or “guest” worker program (no talk of “self-deportation”) — alongside his message about the need for the United States to not be the “only country that does not enforce its immigration laws.” The problem, of course, is that our immigration laws are broken.
In a broader sense, Rubio is positioned uniquely as someone who appeals both to the Tea Party wing of the GOP (which he praised tonight as a movement of “principle”), and the longer, more established traditional intellectual conservatism represented by groups like the Federalist Society, where he is equally popular. Not only immigration, but other controversial policy issues like health care lie at the heart of this internecine conflict among the fractured conservative movement; the Supreme Court vote on the Affordable Care Act — a/k/a Obamacare — has laid this bare: how did we find one conservative, Chief Justice Roberts, so at odds with his fellow Republican nominees Kennedy, Scalia, Thomas, and Alito? I wrote recently about this recently at POLITICO; while some on the right have been attacking the Chief Justice for his vote, I think what it really represents is a different strand of thought, more in line with traditional conservatism: one that rejects ideology as the only way that a candidate, or a judge, should be held to account. After all, it was leftist socialism that modern postwar conservatives rejected for its party-line mentality, in favor of a reflective, historical, intellectual mentality. Conservatism, properly understood is a “state of mind,” not an ideology, in the words of the conservative philosopher Russell Kirk. Those who criticize Rubio’s different views on immigration might revisit this older generation’s thinking about what it means to have the conservative state if mind.
What is fascinating about Rubio — and thus far a testament to his political acumen — is his ability to bridge this divide on the Right. He is equally popular with both audiences, at Tea Party rallies or the Federalist Society or CPAC and other more intellectual, traditionalist circles. This is key to his appeal as a vice presidential contender, and to his future as someone who has the potential to revive the hybrid conservatism forged over the last 60 years. The conservative movement was always a fusion of populists and intellectuals, and it took leaders like William F. Buckley Jr. and Ronald Reagan to make it possible. The coalition has come undone in recent years. Many see Rubio as a successor to this longer legacy, and only time will tell what those expectations hold.
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