The Supreme Court and the Health Care Law Decision: Judicial Victory, Political Defeat?

The Supreme Court takes up the constitutionality of the health care law today. I'm not a constitutional historian, so I can't speak definitively about its constitutionality (though the law strikes me as a reasonable use of the commerce clause, and to find otherwise would seem to me like a reactionary reversal of 80 years of constitutional history).

The politics of the decision seem likely to be interesting, no matter what the Court decides. Ever since it was signed into law by President Obama two years ago, Republican candidates have denounced it as unconstitutional and have pledged to work to repeal it. The presidential candidates know that calling for repeal of "Obamacare" is a sure-fire applause line every time.

Politically, that won't be easy. Not only would the Republicans need to win the presidential election, they'd need to hold onto the majority in the House of Representatives and not only win the Senate, but get 60 votes to overcome a likely Democratic filibuster to thwart repeal.

In theory, then, the GOP should welcome the prospect of the Supreme Court doing its work for it. But as the old saying goes: "Be careful what you wish for. You might get it."

There is an inherent danger in trying to settle political disagreements by court decision. It is appealing, no question. If one can get the Court to declare the other side's view unconstitutional, one not only wins the immediate battle, but the war. No mere democratic majority can undo what the Court has done. Unless the Court reverses itself, that view stands. What could be better?

Well, the politics can get tricky.

No case better demonstrates that than the infamous Dred Scott decision of 1857. Technically, the matter was a fairly simple one: Was Dred Scott, who had been a slave, now a free man due to having been taken to free territory?

The question could have been answered simply, by looking at that narrow question. But the Court, looking to issue a more comprehensive decision that some people hoped would put an end to the political controversies surrounding slavery--especially slavery in the territories--decided to go big. As James McPherson puts it in Battle Cry of Freedom, many Americans were "yearning for settlement of this question."

Not only did the Court rule that Scott was still a slave, it also ruled that no black person could be a citizen of the United States (despite the fact that many had been treated as such for decades) and that the 1820 Missouri Compromise, which had banned slavery in the northern territories, was unconstitutional.

The majority opinion, written by Chief Justice Roger B. Taney (an Andrew Jackson appointment), is widely considered to be one of the worst, if not the worst, in the history of the Court. Taney was a southern partisan, who privately said that northerners were trying to destroy the south: "the knife of the assassin is at their throats." According to one of the foremost historians of the case, the Dred Scott decision was "essentially visceral in origin ... a work of unmitigated partisanship."

Southerners and Democrats were thrilled, thinking the decision had destroyed the Republican Party, whose position on slavery was that it should be banned in the territories--precisely what the Court had now said could not be done. The decision was called "the funeral sermon of Black Republicanism." Southerners were convinced that they had won the final victory over anti-slavery forces: "Southern opinion on the subject of Southern slavery ... is now the supreme law of the land."

But the politics turned out differently. Republicans like Abraham Lincoln seized upon the Court's opinion as a rallying cry. Far from destroying the Republican Party, it breathed life into it. It now became more important than ever for Republicans to control Congress and the Presidency, so they could nominate new members to the Supreme Court and undo that awful decision.

Perhaps more importantly, Taney and the Court, with their overreaching decision, reversed the political dynamic of the moment. For many years. Southerners had been portraying themselves as victims of northern (political) aggression. Abolitionists and other anti-slavery agitators had been attacking their "peculiar institution" for years. They could plausibly claim that the political discord in the land came from their northern enemies.

Then came Dred Scott. It had undone the 1820 sectional compromise, and in the process, wrecked what remained of the spirit of political compromise. Using the undemocratic institution of the Supreme Court, they had thwarted the political process, which Republicans could claim was stumbling in its typically awkward American way toward some resolution.

The decision, Republicans could say, showed that southerners and Democrats had no respect for or faith in the democratic process. They were simply determined to protect slavery any way they could--even if it meant hopelessly perverting the historical record, even if it meant twisting themselves into knots to justify their illogical opinion.

The Dred Scott decision was a pyrrhic victory for southerners. Three years later, the Republicans proved the "funeral sermon" was premature--they won control of the Presidency and both Houses of Congress. The case produced not an end to the debate, but rather a political backlash that ended with the destruction of the very institution of slavery that southerners were trying so desperately to save.

It would be foolhardy to predict the possible outcomes of all of the potential Supreme Court decisions in the health care case. The temptation for some members of the Court to issue a sweeping decision will be strong, but a more temperate majority may emerge. The safest thing to predict is that a decision that initially appears to be a clear-cut judicial victory could end up being a political defeat.

The Republicans: The New Whigs?

I've never seen a poll on this, but I'd guess that most Americans couldn't identify the Whigs. Of all the major political parties in American history (defined as those that got at least one president elected), they remain the most obscure. Their brief history, however, is looking strangely relevant to me these days.

The Whigs were one of the two major parties in what American historians call the second party system. The first party system was the Federalists (led by Washington, Adams, and Hamilton) and the Republicans (led by Jefferson and Madison), which lasted roughly from the 1790s to the 1810s. The third is today's Democrats and Republicans, which emerged in the mid-1850s. In between was the second, made up of the Jacksonian Democrats and the Whigs.

I've always found it a bit of challenge to teach about the Whigs, because they represented an odd collection of views. The very name reflected their amorphous identity.

The name has two meanings. Since they claimed as a foundational principle a dedication to the republican government of the Founders, and the Whigs were the anti-monarchy party in Britain, the American Whigs adopted the same name.

There was a second meaning, however. On a practical level, one of the organizing principles of the party was its opposition to Andrew Jackson, whose high-handed style led them to label him "King Andrew." So the American "Whigs" were the opponents of the "King," Andrew Jackson.

This led to some odd political bedfellows in the Whig Party. While it is certainly possible to identify a Whig ideology (active government, particularly in pursuit of economic development), there were also members of the party who were not supporters of the ideology, but who sided with the Whigs out of an anti-Jackson animus.

So, for example, when Jackson faced down John C. Calhoun and the state of South Carolina during the nullification crisis of 1832-33--despite the fact that the Democrats were the party of states rights--some of the more vehement supporters of states rights joined the Whigs.

The resulting ideological incoherence came out in the presidential election of 1840, the first the party ever won. To hold together its diverse anti-Jackson coalition in the race against Jackson's successor, Martin Van Buren, the Whigs nominated the old Indian-fighting general, William Henry Harrison.

For most Americans, that campaign is remembered (if at all) for its alliterative slogan: "Tippecanoe and Tyler, Too!" John Tyler, the vice-presidential candidate, was in the words of Daniel Walker Howe an "eccentric Virginia state-righter," who joined the Whigs "because he found Andrew Jackson high-handed."

The Whigs, as Howe notes, "possessed a more coherent program" than the Democrats, but when Harrison died only month into his presidency, Tyler--who did not believe in most of that program--became president. He then proceeded to thwart his own party on important issues such as a national bank and tariff policy. The ideological incoherence of the Whigs wrecked their first administration.

What does this have to do with today?

My last post examined the ways that various forms of conservative thinking have been clashing below the mudslinging surface in the Republican debates. This, I argue, suggests an ideological cracking up of the Reagan coalition that has survived and prospered since 1980.

What holds it together? Right now, one thing: hatred of Barack Obama.

No matter how nasty things get in this primary season, all of the candidates and their surrogates return to that theme: the need to defeat Obama. After winning the Florida primary Tuesday, Mitt Romney tweeted:

Thank you FL! While we celebrate this victory, we must not forget what this election is really about: defeating Barack Obama.

Whenever they are searching for unity, they go back to that.

That's fairly natural. Obama is the incumbent president, after all. But there is a particularly harsh edge to it this time. It's personal, it's vitriolic, it's irrational. And it's potent.

That is what reminds me so much of the 1830s: the tendency to reduce the party platform to the opposition to an individual, to personalize everything. It is no coincidence that its enemies never call it "The Affordable Care Act," but rather "ObamaCare." There is a whole "King Obama" meme on the internet, like this Photoshopping of Obama's head onto a famous painting of Emperor Napoleon.

The effects of another Obama term are put in apocalyptic terms. It's not his policies, but his person. New Jersey Gov. Chris Christie, in a Romney radio ad, says: "America cannot survive another four years of Barack Obama." Seriously? Cannot survive? This, from the campaign whose slogan is "Believe in America"?

Of course, apocalyptic rhetoric is practically the norm in American presidential elections. One Whig, in the 1840 campaign, said the following about President Van Buren:

Wherever you find a bitter, blasphemous Atheist and an enemy of Marriage, Morality, and Social Order, there you may be certain of a voter for Van Buren.

Republicans today would need to do little more than change the name.

There is, of course, not much evidence put forth to justify the gloom and doom. As comedian Bill Maher noted, the opposition to Obama is mostly to a deluded fantasy of the man, not the actual president: "Republicans have created this completely fictional president ... The Republican hatred of Obama is based on a paranoid feeling about what he might do, what he's thinking, what he secretly wants to change."

Note how Gingrich put it Tuesday night: "If Barack Obama gets re-elected, it will be a disaster for the United States of America, make no bones about it.... you can’t imagine how radical he’ll be in his second term." No, Newt, I can't. Because he has never been a radical president, outside of your fevered imagination. The Republican caricature of "Obama the radical" is nothing but imagining.

(Again, this is not unlike the Whig caricature of Jackson--he was called "King Andrew," but his era is now more commonly known as the "Age of the Common Man," because of the democratizing forces that brought him into office.)

What the Republican Party as an institution needed more than anything after the George W. Bush years was some serious ideological self-examination. The Tea Party, for all its many faults, was at least in part an attempt to begin that process. But if the pundits are right, and the nomination is now inevitably going to Mitt Romney, that will not happen.

Romney is a man without any ideological core. There is no ideological there there. He will say or do anything to be president. In poll after poll, Republican voters say that they support him mostly because he is seen as the most electable, the most likely to defeat Obama. The fact that he does not truly stand for anything is secondary to the hope that he will vanquish their fictional "King Obama."

Already, voices on the right are crying out in despair. This week an editorial in the Wall Street Journal began: "Let's just say right now what voters will be saying in November, once Barack Obama has been re-elected: Republicans deserve to lose."

And the target of their ire is the ostensible candidate of Wall Street, Mitt Romney:

Thus the core difference between Mr. Romney and Mr. Obama: For the governor, the convictions are the veneer. For the president, the pragmatism is. Voters always see through this. They usually prefer the man who stands for something.

Another voice from the right, of a more Tea Party bent, had this to say:

The Establishment could not have made a more strategic blunder. They will, in all likelihood, succeed in securing the nomination for Mitt Romney, but the damage they have inflicted upon themselves is approaching irreversible. The public now sees the length to which the Establishment will go to make certain their hand-picked candidate is chosen regardless of the dire circumstances facing the nation. 

Average Republican or conservative voters are the same people that buy the books or magazines or subscribe to the websites ... A number of them (how many is anyone's guess right now) will no longer be willing to support those factions within the Establishment and the Party or to believe what they are told. These are the people suffering the consequences of the disastrous policies pursued over previous decades, while those in the Establishment live lives of relative ease and comfort, which seems to be their primary concern.

The cracks are showing. For now, they are being papered over with posters bashing "King Obama." For all I know, given the hard economic times, that could be enough--for now.

Historian Michael Holt, the author of a comprehensive account of the Whigs, wrote:

the history of the Whig Party can best be understood in terms of a tension or balance between centrifugal forces that always threatened to tear it apart and the centripetal force of conflict with Democrats that held it together.

Under the strains of the polarized politics of the 1850s, the Whigs fell apart and disappeared.

Today, the Republicans are in no danger of disappearing, but they are being held together by their centripetal forces. Like the Whigs, they ignore the centrifugal forces of ideology at their peril.

Mitt Romney, Andrew Jackson, and the "Humble Members of Society"

Pundits are understandably fixating on Mitt Romney’s admission Tuesday that the tax rate on his income is “probably closer to the 15 percent rate” and that the over $370,000 he made in speaker’s fees last year was “not very much” of his income.

Much of the coverage has, I think, been misguided. For example, on NPR’s “The Takeaway” Wednesday morning, the anchor said Romney has been criticized for only paying 15 percent. I can’t speak for others, but I don’t think that’s the problem. No one I've heard has argued that Romney did anything wrong or illegal. No one is suggesting these are ill-gotten gains.

The point is one of economic justice.

The question is not “Is Romney doing something wrong?” but “Is this the right policy?” Romney simply presents a particularly stark example of the policy. And he happens to be running for president.

This is a man who, as he jokingly put it, is “unemployed.” He has been running for president for the last 5 years, but his investment income last year was somewhere between $5.5 and $37.3 million. (Some reports state that he receives $26 million a year from Bain, even though he has not worked there in over a decade.)

As Romney explained, “my income comes overwhelmingly from investments made in the past, rather than ordinary income or rather than earned annual.” In short, Romney’s money is making money, and that gets taxed at the lower, 15 percent rate.

According to our tax laws, such income—that which comes not from work but investment—gets preferred treatment in our tax code. Should it?

The standard defense of that policy is a practical one: if we want to encourage investment, we should tax income on investment at a lower rate, thus producing more investment and (hopefully) more economic activity.

The objection, on the other hand, is moral: is it right for government to give preferential treatment to income that comes not from daily labor but from the inherent advantage that accrues to those who already have money?

This is an old question in American politics. Since the earliest days of the republic, Americans have debated the relative virtues of various means of making a living, and whether government policy should prefer one over another.

Andrew Jackson is perhaps the best example of an American president with a clear, unequivocal preference on that score. Newt Gingrich got boisterous applause from the South Carolina debate audience the other night when he said that Old Hickory’s attitude toward enemies of the US was “Kill them!” Had he cited Jackson’s attitudes toward workers, I suspect he would have gotten a rather different response.

Shortly after leaving office, Jackson wrote that unless “labor prospers, commerce and manufacturers must languish and the country be distressed. This is a government of the people, for their happiness and prosperity, and not for the sake of a few, at the expense of the many.” For Jackson, it was clear: the well-being of workers was paramount.

Jackson had a life-long disdain for people (especially bankers) who made money with money (though he was not above some land speculation himself), and for government policies that rewarded them:

It is to be regretted that the rich and powerful too often bend the acts of government to their selfish purposes…. In the full enjoyment of the gifts of Heaven and the fruits of superior industry, economy, and virtue, every man is equally entitled to protection by law; but when the laws undertake to add to these natural and just advantages artificial distinctions, to grant titles, gratuities, and exclusive privileges, to make the rich richer and more powerful, the humble members of society—the farmers, mechanics, and laborers—who have neither the time nor the means of securing like favors to themselves, have a right to complain of the injustice of their Government.

It is this question that we should be discussing: what economic policies produce justice? Newt Gingrich inadvertently began such a discussion with his attacks on Romney’s time at Bain. He has now backed off, due to the nearly unanimous condemnation of the GOP establishment, and switched to the evidently more "respectable" racial dog whistles.

This one form of income, capital gains, disproportionately benefits the wealthiest Americans. Alec MacGillis notes in The New Republic: “Half of all capital gains in the past 30 years have been claimed by the top tenth of a percent of taxpayers. (No, that's not a typo.)” Is this not an example of a law that undertakes to add an artificial distinction that makes the rich richer?

By shutting down any such debate in the primaries, the Republican Party in all likelihood is ceding this ground to President Obama in the fall campaign. They are poised to nominate a man who says, with all sincerity, that over $370,000 a year in speaking fees is “not very much” income, who proposes to lower the tax on that income from 35 percent to 25 percent, all while keeping the tax on his millions in investment income at 15 percent.

As I wrote last August, during the kerfuffle over Mitt’s new house: “the problem is not that Romney is rich. It is that he is rich and advocates policies that primarily advance the interests of the rich.”

Not only does Romney not have a good answer to the question of whether it is right to treat capital gains differently from earned income, he does not even understand the question. In his world, no one would even ask it. It is just as perplexing to him as the questions about Bain’s business tactics. Both seem self-evidently good to him, and people who challenge his views are merely envious.

Such an opponent might tempt Obama, who has already tried to claim the memory of the Republican Progressive Theodore Roosevelt, to channel Andrew Jackson, too.

As the first Democratic president, Jackson praised the “labouring classes” for taking “a noble stand against the corrupt money power.” In that, Jackson saw “ample proof that the peoples [sic] eyes are opening to the corruption of the times—the danger of their liberties from the mony [sic] power, and their determination to resist it…. Fear not, the people may be deluded for a moment, but cannot be corrupted.”

Romney, in his words, in his business record, and in his policy proposals, is emerging as the modern-day embodiment of the money power, leaving the "humble members of society" ripe for the electoral picking.

Memo to Mitt: It's Not the House

Liberals have had some fun this week at Mitt Romney's expense after the Washington Post reported that Romney "is planning to nearly quadruple the size of his $12 million California beachfront mansion." Rachel Maddow had a segment on her program Tuesday arguing that Romney was going "full Thurston"--a reference to Thurston Howell III, the millionaire castaway played by Jim Backus on the 1960s sitcom "Gilligan's Island."

David Frum tweeted on Monday: "I hope none of those people criticizing Mitt Romney's house voted for John Kerry." Romney's net worth is somewhere between $190 and $250 million dollars, according to his campaign, and Kerry's was estimated to be at least $167 million in 2009, so the two are certainly comparable.

Frum seems to think this is an argument-ender: if you supported Kerry's candidacy, you can't be critical of Romney. But he misses something essential: the problem is not that Romney is rich. It is that he is rich and advocates policies that primarily advance the interests of the rich.

Americans have never had a problem with having wealthy political leaders. George Washington, according to biographer Joseph Ellis, had an "insatiable hunger for land" (at his death he had land in five states, the District of Columbia, and the Ohio territory) and was when he died "one of the richest men in America."

Andrew Jackson was also a wealthy man who had extensive landholdings and dabbled in a wide variety of business ventures. Robert Remini tells us that by the time he first ran for president in 1824, Jackson "was a fairly rich man." (Like Washington, Jackson also owned more than a hundred human beings held as slaves.) That is not, of course, how Americans remember Jackson: he remains the champion of the "common man." Policies, not personal wealth, are what people care about.

We see the same thing in the 20th century: three of the wealthiest presidents were Theodore Roosevelt, Franklin Roosevelt, and John Kennedy. These are not men who, like Washington and Jackson, made their own fortunes. They were all three born to wealth (as Romney was). By and large, Americans did not hold their inherited wealth against them, precisely because they made themselves into champions of the average person.

TR made his mark as a powerful president by taking on J. P. Morgan's Northern Securities railroad trust (the case that gave him the misleading nickname of "trust-buster"). Most Americans never knew that Morgan made his peace with TR and even contributed to his campaign in 1904. They knew TR intervened in a United Mine Workers strike that resulted in higher wages and lower hours, and that he signed the Meat Inspection Act and the Pure Food and Drug Act to protect consumers.

FDR, it need hardly be pointed out, was considered a "traitor to his class" for his efforts to alleviate the ravages of the Great Depression. He denounced "business and financial monopoly, speculation, reckless banking" and "Government by organized money." In his 1936 speech accepting the Democratic nomination, FDR said:

we will continue to seek to improve working conditions for the workers of America--to reduce hours over-long, to increase wages that spell starvation, to end the labor of children, to wipe out sweatshops. Of course we will continue every effort to end monopoly in business, to support collective bargaining, to stop unfair competition, to abolish dishonorable trade practices.

When political leaders talk (and more importantly, act) in this way, no one cares how much personal wealth they have.

JFK was also born in wealth, but he ran in 1960 as the champion of FDR's New Deal. Like his predecessors, he knew that policies exclusively favoring the wealthy were self-defeating: "If a free society cannot help the many who are poor, it cannot save the few who are rich."

What sorts of policies does Romney advocate?

On extending unemployment benefits, he's against it: "The indisputable fact is that unemployment benefits, despite a web of regulations, actually serve to discourage some individuals from taking jobs, especially when the benefits extend across years." The implication is that there are plenty of jobs available, and people just are not taking them. He should try telling that to the thousands of people who camped out for a job fair in Atlanta last week.

On the payroll tax cut that President Obama insisted on last December: "only the employee's payroll taxes [are] reduced — the portion paid by the employer is to remain the same.... the payroll tax deal will add to the deficit." (Romney did not note that extending the Bush tax cuts for the wealthy, which he supports, also adds to the deficit--evidently only tax cuts for regular folks do that.)

On extending that payroll tax cut: "Former Massachusetts Gov. Mitt Romney did not flatly rule out an extra year for the payroll tax cut, but he 'would prefer to see the payroll tax cut on the employer side' to spur job growth, his campaign said." It's not clear if that means adding an employer tax cut to the worker's cut, or raising the employee's taxes and giving the break instead to the employer, but it sounds like the latter.

This is the context for the reaction to Romney's new California mansion. Americans do not begrudge their leaders their wealth. They do have a problem with people who say tax cuts are only for wealthy "job creators" and who think unemployment insurance makes people lazy. And rightly so. You reap what you sow, Mitt.

New Hickory?

Look to the city of Washington and let the virtuous patriots of the country weep at the spectacle.  There corruption is springing into existence, and fast flourishing…. We are not as we once were; the people are slumbering at their posts; virtue is on the wane; and the republican principles with which we set out, are fast declining.

Sounds like Glenn Beck, doesn't it?  It's not.  It's a plea by John Eaton, a supporter of Andrew Jackson, urging voters to elevate the general to the presidency in 1824.

I've been thinking a lot about the proper historical analogy for the Tea Party, and I've been leaning lately toward the Jacksonian Democrats of the early to mid 19th century. (Though, as I plan to explore in a future post, the candidacy of Christine O'Donnell throws a monkey wrench into the comparison.  Previous posts on the Tea Party are here and here. )

The Tea Party, to the extent that it represents any coherent political philosophy, seems to be about a return to an idealized past, when Americans held to original constitutional principles, government was small, taxes were low, and freedom was unfettered.  They claim the Revolutionary generation as their inspiration.  That's quite similar to the ideology of the Democratic Party from the 1820s through the 1840s.

Compare the Tea Party to one Jacksonian's description of Democratic ideology: "[It] may be summed up in this brief formula.  As little government as possible; that little emanating from, and controlled by, the people."

The Jacksonian Democrats opposed both big government and big business, because they believed that any government action created privilege, and the wealthiest and most powerful would be the beneficiaries of all such government action. Thus, they thought, the government could best serve the cause of equality by doing as little as possible.

The Jacksonians championed, as every student of American history knows, "the common man."  They portrayed themselves as the regular people, rising up to regain control of their government from corrupt elites, and Jackson was their man:

He has drawn the just distinction between those classes of society that labor and those that do not; those that earn their living by the sweat of their brow and constitute the bone and muscle of the country, defending it in war and supporting it in peace, and those who live by interest in their stocks.

Supporters praised Jackson for his "devotion to the cause of liberty," for "stand[ing] aloof from all the contemptible intrigue … of the day."  He was the one who would reverse the "dangerous trends of the modern age" and "restore the cherished values of old."

But that isn't the only similarity to today's Tea Party.  Jackson and his supporters shared the conspiratorial, even paranoid, mindset of today's Tea Partiers.  As Jackson's biographer Robert Remini writes, Jackson spoke "incessantly about intrigue and corruption and fraud … he expressed the conspiracy in terms of an aristocracy seeking power to pursue their own selfish ends."

The irony is that while most Tea Partiers likely share that fear of wealthy elites (the opposition to "bailouts" is evidence enough of that), many of the organizations that are seizing the Tea Party brand are in fact funded by those same wealthy elites, people like the Koch brothers.  Candidates like Rand Paul may speak the libertarian lingo of the early 19th century, but in a modern economy, that 19th century ideology actual serves the economic elite, not the common man.

The late 19th century proved the inadequacy of the Jacksonian approach.  Left unregulated, big business amassed unparalleled, unchecked economic power.  Progressives like Theodore Roosevelt understood that only by using democratic government as a check on that economic power could liberty be preserved.

The New York State Democratic platform in 1844 stated: "It is the aristocracy of wealth we have to fear, and that is the only aristocracy from which danger is to be apprehended." In that pre-industrial age, the economic elites were pikers compared to today's billionaires, but the point remains.

Today it is only the regulatory structure and social safety net that progressives have built over the last century that keeps the aristocracy of wealth in check.  By supporting candidates who would undo that structure, candidates funded secretively by today's aristocracy of wealth, today's Tea Party supporters may well empower the very forces that the Jacksonians so adamantly opposed.