Blowback Conservatism

I’ve been traveling today, driving from Amherst back to Washington, and so I’m catching up with some of the comments drawn by the piece on Commencements and the bizarre implication that springs from the judgment of the Court in Lee v. Weisman. I want to thank Carl Scott for his stirring words on Natural Rights & the Right to Choose. But on this matter of whether I would try to make use of the lever revealed in this case, he has me wrong on one critical point: I’m always in favor of the conservatives making use of the ‘principles’ laid down by the Left in order to show how those principles would work quite forcefully against them. The Left persistently fails to live by the rules or principles it lays down for others, and so the only way of making them back away is to use the precedents they set in ways that they’ll find quite jarring.

It was only when the statute on Independent Counsels was used to put in place Ken Starr, tracking Bill Clinton, that the Democrats lost their conviction about Independent Counsels and let the statute lapse. Bill Bennett and I did a piece in the Wall Street Journal, posing the question of whether the rules laid down for the impeachment of Richard Nixon would be respected now when it came to Bill Clinton. And so, if the “suborning of perjury” was thought a sufficient ground for impeaching Mr. Nixon, should it not be a ground comparably sufficient for the impeachment of Bill Clinton and his removal from office.

The most notable example I’ve offered here is one I floated in a speech to the Supreme Court Historical Society back in 1996, with Chief Justice Rehnquist introducing me. One friend noted the Chief’s eyes lighting up when I offered this use of the infamous case of Wickard v. Filburn, the case in which Roscoe Filburn set aside a portion of wheat on his farm for the domestic consumption of his family. Robert Jackson famously “explained” then that this action, innocent enough, may have little consequence, but if everyone did that, there would be a vast, aggregate effect that would have the most notable, detrimental effect on the federal policy in managing agriculture. Using precisely the same logic and rationale I offered this scheme: that singular, private abortion may be yours alone, but when it is taken in combination with 1.2 million every year in this country, your example contributes in the aggregate to a vast effect in depressing the interstate sale in: bassinetts, baby food, toys, diapers, furniture… and later: bar mitzvahs, weddings, college tuitions even later, removing 1.2 million taxpayers coming on line ever year to sustain the system of welfare and medicare.

The conservatives have sought to argue against the extension of the Commerce Clause, but the willingness to use in this way the precedents accepted under the Commerce Clause would do far more overnight to wean the Left away from their ready use of this formula to extend the reach of the federal government.

But, having said all of that, I’ve held back from mapping out in this piece a scheme for using the lever that could emerge from Scalia’s insight in Lee v. Weisman. That is simply a reading of the political facts of life in most of the colleges and universities. And yet, beyond that, I’d need to do some further pondering in figuring out just how, and whether, a move of that kind could be made. The father of a former student of mine was knifed and killed on a bus in Miami. It was a galling matter for him to see Amherst honoring opponents of capital punishment at Commencement. As he saw it, these people did not think that the murder of his father was a wrong that truly deserve to be vindicated—a wrong that called out for the most severe penalty. But what he could do was lodge his moral argument and his protest, a move not likely to produce an effect at Amherst. The lever provided to Deborah Weisman would not be available to him in a private college. Perhaps something could be done at a public university, but if we pick up the hints offered by Justice Kennedy recently in Town of Greece, he is likely simply to limit the “right” here to young, immature students.

On the other hand, I should point out that nothing in this argument entails litigation, or a decision by a court, as the only theater of action or the only source of a remedy. But the first step is to notice the connection that Scalia made—the powerful implication that is forged when the Weisman case is joined with Barnette on the Jehovah Witnesses and the salute to the flag. That remarkable connection is what I sought to recall. And once we bring it forth, I can call to my side here the imagination of my friends, to consider whether there might indeed be a way of employing this lever. I’d invite our friends to ponder this one with me. There are lessons to be taught. And so we should see what genius we might call upon in teaching those lessons.

Reader Discussion

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on June 02, 2014 at 20:22:53 pm

Prof. Arkes:

love your writings and glad to see you here.

In another sense what we get down to is this, and regrettable Carl may be on the wrong side of this (not because of any defect in aspiration or motivation, I am sure).
Why are members of the right so "cowed" by criticism (actually perceived potential criticism) when asserting the same argument / principles as the left. They play a nasty game -AWAYS - and we sit and take it.
In the non- rhetorical area, a perfect example comes to mind: Mitch McConnell assures us that if the GOP takes the Senate he will dispense with the nuclear option. why, pray tell, would we not use the same arguments that that sun-stricken "genius" and "gentleman from Nevada used against the GOP to crush opposition to the Big O's agenda (both legislative and judicial).
If the goose can take, so can the gander.

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Image of gabe
on June 02, 2014 at 22:00:53 pm

No regrets for my comment having elicited a whole new post from Hadley! The further explanations do help.

If anyone wants to think aloud here about how this particular lever, a right to not be subject to "conscience-violating" (on the Weisman principle) honorary degrees being awarded at a ceremony you are attending might be put into play, go to it, and I'll see what I think. But I'm guessing any such would certainly a) re-affirm Weisman, b) make a whole lot of conservatives who espouse originalism out to be hypocrites, and c) might not gain a victory for conservatives in the end anyhow.

Maybe Hadley has some kind of protest move more in mind.

But not all such levers are equal. Or rather, some of them can definitely only function as arguments. As delicious as it is to contemplate a Wickard-is-right (and Morrison-is-wrong) full embrace by conservatives of the commerce clauses' purported ability to let Congress regulate anything, there's no conceivable scenario where conservatives would want to do it. We'd only actually DO it for the sake of a Republican majority in Congress banning or curtailing abortion in all 50 (and that would assume a situation where Roe's already been overturned!), and only if the we were was convinced we had already lost all battles, judicial and otherwise, to constrain the commerce clause power, and so it had become Quixotic to insist on the principle. Now that's one wild hypothetical indeed.

Still, it's a brilliant argument. I would have loved to have seen the Chief Justice's reaction myself, and I'm sure it could be sprung on some typical liberal jurist with amusing head-exploding results. Hadley, you do love the element of surprise!

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Image of Carl Eric Scott
Carl Eric Scott
on June 05, 2014 at 12:41:51 pm

1. Does Wickard v. Filburn provide grounds for Congress to regulate abortion? Eh.

Roe v. Wade was grounded in privacy rights. Whatever you may think of such rights, they seem especially strong as applied to matters involving the body. While I have an autonomy interest in controlling what grows on my field and what grows in my abdomen, it doesn’t seem like a tough call to say that privacy rights might apply to one topic more than the other.

That said, I’ve argued that if the Constitution permits the nation to compel people to labor for the military, it should permit the nation to compel other kinds of labor as well. It all depends on the extent of the national emergency, and whether the remedy is narrowly tailored to the problem at hand.

We might well disagree about circumstances in which a draft is really the most narrowly-tailored remedy for the problem at hand. But short of Handmaid’s Tale-type population plunge, it’s hard to imagine when we’d regard womb commandeering as the most appropriate remedy for a problem. If we have a national interest in expanding the population for pretty much any purpose, we have a ready supply of volunteers on our southern border. In essence, the US has been outsourcing unskilled labor for decades – and reproduction is just one more type of labor.

As an aside: Economist Steven Landsburg argues that the Obamacare contraceptive mandate is not rationally related to the purpose of reducing net social costs. Even if socializing the cost of contraceptives results in lower costs than socializing the cost of unwanted pregnancies, we also need to consider the gains of unwanted pregnancies: On average, Americans eventually produce more than they consume. There are many rejoinders, but it’s a fun argument.

2. Do Barnette and Weisman provide grounds for a student to enjoin her public university from permitting a death-penalty opponent speak at Commencement? Eh.

Both cases involved a government-provided forum in which participants were expected to signal their assent: Barnette involved saluting; Weisman involved standing. So if the audience was expected to stand in recognition of the death-penalty opponent’s message, you might have a case. Otherwise, I suspect not. Similarly, if Weisman had complained that her school had invited a rabbi to speak at commencement, rather than deliver a prayer, it is unclear that the case would have prevailed.

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Image of nobody.really
on June 06, 2014 at 19:48:00 pm

[…] UPDATE: Two responses to Prof. Arkes’s piece can be found here and here by Carl Scott and Peter Spiliakos respectively on National Review Online. Prof. Arkes responds to them here. […]

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Image of “‘Scalia’s Genius and His Curse” —Prof. Hadley Arkes in The Library of Law and Liberty | James Wilson Institute
“‘Scalia’s Genius and His Curse” —Prof. Hadley Arkes in The Library of Law and Liberty | James Wilson Institute

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