Destroying Obamacare, the American Way

I happened to be on the road this past Tuesday--all day in a compact car filled with all my earthly treasures--and managed, from time to time, to pick up bits of NPR and conservative talk radio, depending on what city I was passing through. It happened that in the Metroplex I tuned in to the Ben Ferguson show, only the regular host was out for the holiday. Faux-Ferguson, unsurprisingly, was in a tizzy about the much discussed recent Supreme Court decision regarding health care. The overwhelming boredom of a long road trip compelled me to listen.

Faux-Ferguson was of the opinion that, once Mitt Romney is elected president, he needs to sign an executive order voiding the decision of the court. He seemed to understand the unprecedented and unfounded nature of this action, suggesting that what America really needed was a "constitutional crisis." After all, in his opinion, the action of the court had been unprecedented and unfounded. He was of the opinion that anyone who read the Constitution would understand that judicial review as it is now practiced is beyond the scope and power of the judiciary.

What he could not do, is point out where the Constitution contravenes what I learned in kindergarten: that two wrongs don't make a right. Thankfully, a caller phoned in and suggested that very fact to him, implying that just as the Constitution didn't envision a tyrannical court, it didn't intend for an imperial presidency. The caller insisted that what Republicans needed to focus on now, to get rid of Obamacare, is electing a majority in both houses of Congress and a Republican president.

Faux-Ferguson pointed out that even with the legislative repeal of Obamacare, the legal precedent of taxing inactivity has been set and will need to be overturned. And he's right, but there is a perfectly legitimate constitutional mechanism for achieving this without falling into the blatant hypocrisy of a so-called "consistent constitutionalist" suggesting that the actions of a single man can unilaterally overturn the actions of an entirely equal branch of government.

If the talk jockey would spend less time shouting at his dissenting listeners "have you read what the Constitution says about the court" and move on to the history of the court, he might make some headway and realize that the court's size is not fixed. It has changed at least a half a dozen times over the course of history, both expanding and shrinking. No less a revered Democratic figure than Franklin Roosevelt made a valiant attempt to stack the court with justices in order to ensure his legislative achievements would stand. With a little determination, modern Republicans might succeed where he failed.

Certainly the eradication of Obamacare requires the election of Republican majorities in Congress and a Republican president. From there, the constitutional course is for the new Congress to pass legislation expanding the size of the court from nine to eleven justices, for the new president to nominate two strict constructionists to the bench, for the new Congress to speed there approval, and for Republican states to find new grounds on which to bring suit once again.

Sure, it's an arduous process, but Faux-Ferguson and other Republicans need to understand that this is precisely the beauty of the Constitution. With all the whining about how slowly the wheels of progress turn in Washington, it is important to realize that the USA was founded with deliberate safeguards to insulate government from the hot will of the masses. It is just as dangerous to have a president who is willing and able to sign unilateral orders on the basis of public opinion as it would be elect justices by popular vote for short terms or to directly elect Senators (oops). The point is that each branch of government always has recourse to correct the errors of the other, but these correction require, and ought to require, a tremendous exertion of political effort. It is this political inertia that actually prevents the government standstill that would inevitably result from conflicting branches of government entering a cycle of political power-brokering and one-upsmanship.

Imagine if all the branches of government thought like Faux-Ferguson's president. Romney would sign an executive order voiding the courts decision, then the court would unanimously strike down this move, then the legislature would move to impeach the court, but the court would have itself acquitted. Ad infinitum. What a wonderful world that would be. At least for talk show hosts.

As always, the preceding were my thoughts as a politlcal observer and not a political participant.  They were not intended to endorse a particular course of action, whether that be the repeal or the implementation of the Affordable Care Act.  It was simply an attempt to bring historical observations to bear on the present situation and to encourage an internal consistency by the parties as they discuss the way forward.  The Kingdom will come in its own time and in its appointed way whether the government penalizes citizens for not buying health care or not.

Compelling Morality: Our Redundant History

It is in no sense an overstatement to say that Gaines M. Foster's Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920 is a near perfect blend of historical insight and timeliness. Foster's simple book has simple scope: the examination of the rise of the Christian lobby in late nineteenth century America and the moral legislation it pursued. He makes clear, however, from the first sentence of the introduction that this is not intended to be a purely academic exercise. The rise of the Christian right in the late 1970s has made matters of the origins and precedents of religious lobbying and moral legislation issues of extreme importance for contemporary American moral polity. Foster convincingly suggests that the strongest, most germane parallel to the modern movement for moral reform is the late nineteenth century campaign to revise the moral character of the nation. The rise of the Christian lobby was more than merely a political shift or, as the lobbyists undoubtedly believed, an awakening of the American moral conscious in the face of some novel evil. It was a dramatic cultural and philosophical shift away from antebellum theories of states' rights, personal liberty, and moral suasion into new concepts of nationalism and corporate social responsibility. In this, and countless other nuances of Foster's book, there are striking ideological parallels to more recent impulses in American politics. In the interest of brevity, however, there are two points from Foster's work which stand out as especially noteworthy for reflection.

One of the most striking features of the Christian lobby, which Foster deliberately emphasizes in his narrative, was that even in its successes it understood and respected (or at least conceded to accept) the Constitutional limits of the federal government. There is little debate any longer about whether or not the federal government has some role in structuring national morality. As Foster will admit in his conclusion, few people object to the federal government having a hand in, for example, protecting children from the sexual advances of adults. In truth, most Americans probably do not even think of this in terms of the government legislating morality, though that is certainly what is occurring. As desensitized to the concept as modern Americans are, the idea that the government should make any universal laws regarding any morality was entirely foreign to early Americans. In fact, the Thirteenth Amendment represented something of a strange and wonderful novelty to nineteenth century Americans. They accepted that slavery was wrong (though some, only after being compelled by force of arms to accept that opinion), but that the government could seize the right to make that qualitative judgment was unusual. The Thirteenth Amendment would prove to be the justifying precedent cited most frequently by moral reformers.

Even with this powerful antecedent, the Christian lobby was forced to respect that most Americans understood the federal government to be restricted to a very small number of jurisdictions: interstate commerce, international treaties, administration of the military, and direct governance of the District of Columbia and the territories. In view of these limitations, the moral reformers were forced to pursue their agenda of national moral legislation within the confines of a traditional view of a limited federal government. They focused their efforts initially on enacting Sunday laws in DC, stricter divorce rules in the territories, prohibition in the military, and the restriction of interstate distribution of obscene materials (e.g. information on birth control). They understood that they could not make adultery illegal, but they did eventually convince the government that it had the power to make transporting a woman across state lines for the purpose of adultery should be. Even when the moral reformers did make their final push to outlaw the production and sale of all intoxicating beverages, Prohibition came with two important concessions to the limits of federal power. First, reformers readily admitted and accepted that Congress could not simply pass a law to achieve prohibition. A constitutional amendment would be necessary, as the Constitution did not give Congress the kind of sweeping moral power to outlaw behavior that the Christian lobby required. Second, in spite of initial attempts to include it, the provision which made possessing and consuming alcohol in one's home was removed from the wording of the amendment. The country was not ready to accept the idea that the government had the right to regulate moral behavior within one's own home. What authority it had, stopped at the domestic threshold. The home was a fortress, even if it was a den of wicked vice.

In addition to recognizing and working within the constitutional limits of the federal government, the history of the moral reformers teaches contemporary reformers and important lesson about the impermanence of moral reform. When the Volstead Act finally took effect, enforcing the Eighteenth Amendment, the reform periodical American Issue triumphantly declared, "The future historian will accord to January 16, 1920 a place second only to that of the advent of the Redeemer." Historians have a funny way of defying predictions. No one would today suggest that the onset of Prohibition in the United States was an event of permanent and global magnitude. Few school children know anything more than a passing quick fact about the Eighteenth Amendment and even less about the myriad moral reforms which preceded it. Even to the most conservative modern critic, the goals of the Christian lobby in the late nineteenth and early twentieth century seem antiquated if not comic. While many still oppose, largely futilely, ready access to abortion, on the most marginal members of society think it ought to be illegal to distribute information about birth control. Boxing, while not America's proudest past time, is legal to stage, promote, record, and distribute. (Imagine what the moral reformers would have thought of the mixed martial arts craze which has gripped the popular imagination.) The film industry not only escaped government content controls, but modern technology has made it possible for anyone and everyone to pipe any number of genuinely obscene pictures onto their computers, televisions, and telephones. Perhaps most notoriously at all, Prohibition was a miserable failure and social drinking (unlike boxing) is among the great American past times. From a historical perspective, efforts at national moral reform appear to have been the most dismal failure. Only a select few reforms from the period persist in any recognizable form: higher age of consent laws, laws against selling cigarettes to minors, and the end of mail delivery on Sundays. In his conclusion, Foster suggests that "the story of moral reconstruction provides no sure lessons to be applied to the renewed debate over legislating morality...but it does provide a historical context." Yet this historical context may in fact be the sure lesson which moral reformers need to learn; history has proved that it will be infinitely easier to repeal moral legislation than it was to pass it. It took the reformers nearly sixty years to enact prohibition through a constitutional amendment and only thirteen years for Americans to collectively regret and reject prohibition through another amendment.

There can be few complaints about Foster's work. Admittedly, it is dry, deeply encyclopedic reading which at times carries with it the uneasy feeling that one is actually just reading the congressional record. This impression is reenforced by the final eighty pages (or one quarter) of the book which is consumed by extensive appendices, notes, and other scholarly apparatus. At the same time, this exhaustive treatment reassures the reader that Moral Reconstruction is among the most well researched treatments of the period and subject that has yet been written. Though not a page turner for the average reader, the book is worth a second glance and more for professionals or dedicated hobbyists interested in grasping the historical context of ongoing movements among Christian especially to legislate a better moral polity for America.

Some Elephants Forget

I have already addressed the ironic history of government attempts to legislate marriage and divorce, so--though tempting--I will not rehash my previous thoughts in their entirety. I would, however, like to share another interesting quote from Foster's Moral Reconstruction which is illustrative of just how far the Republican Party has come in terms of changing its social policies (emphasis added):

The Roberts case revived interest in a constitutional amendment against polygamy and polygamous cohabitation; the later provision would have outlawed living with plural wives married before the Church of Jesus Christ of Latter-day Saints presumed reversal on polygamy. Over the next few years, many resolutions or bills in behalf of a broad antipolygamy amendment were entered; none ever passed. Frank J. Cannon, son of a high Mormon official who broke with his father and became an anti-Mormon agitator, claimed that in 1900 a representative of the Republican Party reached an agreement with Mormon leaders in which they promised to support William McKinley's reelection in return for the party's pledge to block a constitutional amendment that would give the federal government power over marriage and divorce. Such a deal, if in fact it was made, would surely have applied to an antipolygamy amendment.

Interestingly, contemporary Republicans are running on precisely the opposite platform. This is a particularly intriguing position for Mitt Romney, given the way historical amendments of this nature were specifically designed to discriminate against marriage practices in his faith and to disenfranchise Mormons as a people.