The mainstream conservatives’ alternative reality

After the Supreme Court decision was announced yesterday morning, I wondered aloud to a friend by what devices the mainstream conservatives would go on pretending that America as a constitutional republic of limited powers still exists, and that conservatism as allegiance to that republic still exists.

It didn’t take long before I got an answer. Incredibly, the mainstream conservatives are claiming that the decision is a victory for conservatism.

Dov Fischer at American Thinker writes:

Chief Justice John Roberts has handed a remarkable victory to American conservatives by threading the judicial needle with perfect precision. The initial disappointment collectively felt by Americans who had hoped for a Supreme Court ruling that would overturn Obamacare soon will be replaced, upon further reflection, by the excitement that will come with a fuller appreciation of what the Chief Justice has wrought.

Joe Battenfeld in the Boston Herald writes:

Chief Justice John Roberts may be the Democrats’ new best buddy but come November he’ll be President Obama’s worst nightmare.

Lucianne Goldberg posts an article by Tom Scocca at Slate followed by her editorial comment:

Obama Wins the Battle, Roberts Wins the War
Don’t panic. Read the whole thing here. You’ll feel better.

Charles Krauthammer, not exactly celebrating the decision, praises and rationalizes it as a brilliant stroke by Roberts:

It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law—and thus prevented the Court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.

Finally and most audaciously, Sean Trende argues at Real Clear Politics that the decision is good news for conservatives because, even though it approves Obamacare, and, at the very least, makes it more likely that it will be implemented, the decision will make it harder in the future for liberals to claim unlimited powers of Congress under the Commerce Clause. To repeat: the approval of Obamacare is a good thing, because it can be seen as placing certain limits on the powers of Congress in the future.

So I have my answer. There is no absurdity to which conservatives will not resort in order to claim that conservatism has really won, and thus that conservatism is still a viable movement. America could be officially proclaimed a Soviet state tomorrow, and the conservative pundits would chortle—just as they did about every leftward move by George W. Bush—that this is really a brilliant Machiavellian maneuver by which the conservative agenda is being advanced

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LA writes:

Also, I see that George Will said this:

By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”

Robert B. writes:

You left out Front Page Magazine where Joseph Klein draws the same absurd conclusion.

Meanwhile, Ginsburg has already stated that Robert’s opinion on the Commerce Clause will not last.

And the Left is laughing at the “Right’s” interpretation:

James R. writes:

Here’s Instapundit’s roundup of demented “this is a win for conservatism” spin. [LA replies: Is Instapundut criticizing the “this is a conservative win” spin or aggreeing with it?]

However, this is closer to the truth.

In my view, Roberts created an opinion that seems to reduce the limitless “Commerce Clause” ploy, but in a way that, in practice, will matter not at all because (1) “conservatives” are fools if they believe future liberal opinions will feel bound by the language in this opinion that seemingly defines constraints upon the exercise of the Commerce Clause; and (2) this opinion actually gives court-approved (indeed, “conservative” court-approved) sanction to an entire new range of unconstrained statism—under the guise of “taxing power.”

I don’t know which is worse: the dupes who welcome an opinion which gives sanction to a new range of arguments for government intrusion into people’s lives (“it’s just an excessive of taxing power”), or the knaves who think this is a win just because of the potential electoral implications (“this is a win for our side because it will inflame the people and get them to the polls, get them to contribute money, get them to volunteer for the cause, so we can inflict more justices like Roberts upon them, and job them once again”).

Then of course there are people like Frum, but I guess the less said about people like that, the better—save to point out that it’s no wonder they’re E.J. Dionne’s and Sam Tannenhaus’s type of “conservative,” namely in-house conservatives who know their role, which is (a) to serve as a handy whipping-boy/scapegoat for policies that go awry, and (b) to transform leftist policies into “bi-partisan consensus of all reasonable, decent, thoughtful people.”

Dave T. writes:

What really gets to me are the conservatives who think that the court’s decision yesterday placed some kind of enduring limits on the way in which the Commerce Clause can be used in the future. It’s true that the court did not affirm the constitutionality of the mandate under the Commerce Clause, but realistically we are only one justice away from the brazenly leftist faction of the court doing whatever it wants under the Commerce Clause. It’s not as if the left is about to let a little thing like legal precedent get in their way.

LA writes:

When I told a conservative acquaintance today about the many conservative writers who are saying that this catastrophic decision is a victory for conservatism, her first response was that many conservatives are opposed to the decision. As though the fact that many conservatives naturally oppose the decision cancels out the astonishing fact that many other conservatives are applauding it.

She also mentioned that Rush Limbaugh yesterday said something to the effect that this means the end of the Republic. I replied, “Well, at least he is taking the situation seriously.”

But now I receive this, from Buck:

At 1:32 p.m. today, Rush Limbaugh, after trashing the decision as a legal matter and after accusing Justice Roberts of perpetrating a huge fraud, said: “The political benefits of this do redound to our benefit.”

Eric B. in Nashville writes:

I don’t think there’s anything wrong with noting the silver lining in this decision. Passage of Obamacare is, without a doubt, the most significant defeat of conservatism in recent memory. The AZ decision is a close second.

However, use of the commerce clause to justify all manner of federal intervention has seen remarkably few restrictions in case law. That this legal tactic has finally taken one on the chin is no small victory. For the time being, this is merely the stuff of legal nerds, but it will have significant repercussions for future cases involving federal power.

What sickens me most is Conservatives’ present reality: failure to elect milquetoast RINO Romney will lead to the appointment of several new hard left justices the court. In my nightmares, I imagine two new justices in the “angry black woman” tradition, wagging their fingers at counsel and issuing huffy, finger-snappin’ concurring opinions. Voting for the Constitution Party in November will do nothing to prevent that scenario.

Joseph S. writes:

Technically, Roberts was correct that Obamacare AS WRITTEN was a tax—it is implemented by having people fill out their 1040 forms and they get an exemption from paying an additional amount if they have bought health care coverage, in the same way they can currently claim deductions for medical expenses and (if they are self-employed) insurance premiums. Although the legislative debates involved dissimulation by proponents of the bill who swore it wasn’t a tax, the statements of legislators about what they meant are only relevant when the law itself is unclear, and, functionally, this law is clear. The clincher: there is no taint of criminality or violation for choosing to pay the extra tax rather than get health coverage, and furthermore, if your tax liability is low enough, you don’t owe anything because the amount you would pay related to Obamacare is outweighed by your other tax credits and exemptions and so on.

What’s interesting is that none of the four dissenters could have done this, only the Chief Justice gets to overrule the other people in his coalition to write the opinion “for the court” when they outnumber him, so he got to make official the view that the Commerce Clause does not have the scope the liberals want it to have. If he had just been an ordinary Justice, he would have probably sided with Scalia in order to avoid validating the overreaching interpretation of the Commerce Clause that would have become law, which constitutionally is a more serious matter than the question about taxing power.

The abomination was the passing of the law in the first place, not yesterday’s decision. There are other grounds on whch Obamacare could have been challenged, and may yet be challenged, but they were not litigated in this case.

Posted by Lawrence Auster at June 29, 2012 10:30 AM | Send