Yale Law School Prof. Stephen L. Carter’s March 22 discussion of the U.S. Supreme Court’s consideration of the next Affordable Care Act case and the “ideology of judicial supremacy” (“ACA/court commentary touches a live wire”) should give pause to the few people who still reflexively praise the federal government.
Carter states, parenthetically, “One wonders why we don’t just go ahead and elect the [U.S. Supreme Court] justices directly.” Carter writes, “the institution of [federal] judicial review has lately been undergoing something of a crisis. … It’s about time.”
Carter cites well-known liberal/libertarian law professors such as Jeremy Waldron, Larry Kramer, Mark Tushnet and Erwin Chemerinsky as questioning the authority of the federal courts and their seemingly unlimited powers of judicial review. Carter summarizes: “The old consensus has unraveled. The days when only segregationist governors questioned the absolute authority of the Supreme Court are a distant memory.”
We agree. The “old consensus” survived by relying on a common faith in the federal government’s objectivity and, in particular, judicial objectivity. But among the common people, faith in the court’s objectivity — its philosophical neutrality — no longer exists. People believe that judges deconstruct the positive law in order to achieve subjective, existentially motivated goals — liberal or conservative.
Today, people are unhappy with the federal government and want it scolded, not applauded. Liberalism and conservatism are seen as inadequate to the task. Populism is seen as a better philosophical tool to chastise the government.
Liberalism today is simply one of many competing ideologies. It suffers because of its elitist claim to be the only ideology exclusively rooted in “reason.” Liberalism is comfortable with “expertism,” elitism and the republic — but not with true democracy, not with populism.
American conservatism has fared no better addressing democracy and populism over the last 50 years. Conservative intellectual leaders like Russell Kirk and Bill Buckley could have embraced democracy and populism, but they didn’t. Instead, they adopted an incoherent Burkean defense of the federal government and elite rationality, best reflected in Russell Kirk’s best-seller, “The Conservative Mind: From Burke to Eliot” and Bill Buckley’s television series “Firing Line.”
Populists argue that federal government experts can no longer politically stabilize the federal government with technical facts (what really causes what), let alone with metaphysical facts (what the purpose of the federal government is). Without the latter, the former cannot imply any policy, any version of justice, whatsoever. Like Notre Dame philosopher Alasdair MacIntyre, more and more of us are asking about the federal government, “Whose justice? Which rationality?”
Under these circumstances, federal courts should no longer be allowed to determine what justice is based on a pretended objectivity. In the postmodern age, the only process that can stabilize the federal government is democracy. That means democratically enacted and democratically interpreted laws. Populists demand that federal laws be democratically interpreted by judges who are democratically elected.
Truly, the people are in the midst of turning upside down the federal government’s account of political stability. The cornerstones of the federal government’s rule by objective truth — that is, experts and their purported knowledge — have become the federal government’s source of instability.
Professor Carter apparently came to his conclusion of the “old consensus unraveling” without reference to a chief symptom of our governmental deconstruction — Tea Party representation in the U.S. Congress and state legislatures. The Tea Party legislative membership nationwide has been built on public skepticism of the federal government’s objectivity. The Tea Party is marginalizing conservatives and incorrigible liberals who are not similarly skeptical.
If Carter could understand these emerging neopopulists, in all their fits and starts, as the collaborators of the more cynical law professors he cites in his commentary, then he, like us, would see another American revolution well on its way.
In this increasingly revolutionary zeitgeist, the devolution of power from the government to the people is to be expected. This has already occurred in Great Britain, the U.S.S.R., Czechoslovakia, and almost in Canada. Across the Atlantic, European populists reject the elite management of the European Union.
One Russian friend recently told us, “The devolution was peaceful in the U.S.S.R. because, by the end, everyone was mocking the government, including the Communist Party members.”
We hope for an equally peaceful devolution in America as more and more of us, including government employees, mock the government.
The age of obligatory respect for the offices of a failing government — that is, of an imperious rather than a truly imperial presidency, bureaucracy and judiciary — is gone.
Erick Kaardal lives in St. Paul. Tom Dahlberg lives in Shorewood. They are co-authors of “Neopopulism as Counterculture.”