an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The nasty tone that marks current exchanges in the public sphere between liberals and conservatives is disheartening and counter-productive (even if it can sometimes be a guilty pleasure). One consequence of this all-out-attack mode is that it stifles internal criticism amongst conservatives and amongst liberals. Any breaking of the ranks is taken as an act of disloyalty. For conservatives whatever Bush does is right, and for liberals whatever Bush does is wrong.
That's why it is worth noting when liberals and conservatives criticize their own. People on the left condemned NARAL for its initial over the top attack on Justice-to-be-Roberts. To NARAL's credit, the ad was pulled.
Two recent examples of internal criticism by conservatives deserve recognition.
A study from the Census Bureau found that for "the first time on record " "household incomes failed to increase for five straight years." You would expect a report like this to raise the hackles of the right, generating denials or excuses (like: it was Clinton's fault). But read this:
"It looks like the gains from the recovery haven't really filtered down," said Phillip L. Swagel, a resident scholar at the American Enterprise Institute, a conservative research group in Washington. "The gains have gone to owners of capital and not to workers."
There has always been a lag between the end of a recession and the resumption of raises, Mr. Swagel added, but the length of this lag has been confounding.
Liberals can snicker--that's what you get with "trickle down" or "Voodoo" economics, as Bush Senior dubbed it--but instead they should cheer Mr. Swagel for his integrity, both in accepting the numbers and in suggesting, at least implicitly, that the Bush plan hasn't worked out as advertised. Kudos to AEI for retaining a scholar who is dedicated to getting the facts right, and willing to test their favored economic theory or ideology against the facts (p.s. please renew his fellowship).
Even more courageous observations were made by Francis Fukuyama, in his recent New York Times Op-Ed piece, "Invasion of the Isolationists:"
In the immediate aftermath of the 9/11 attacks, Americans would have allowed President George W. Bush to lead them in any of several directions, and the nation was prepared to accept substantial risks and sacrifices. The Bush administration asked for no sacrifices from the average American, but after the quick fall of the Taliban it rolled the dice in a big way by moving to solve a longstanding problem only tangentially related to the threat from Al Qaeda - Iraq.
In the process, it squandered the overwhelming public mandate it had received after Sept. 11. At the same time, it alienated most of its close allies and stirred up anti-Americanism in the Middle East.
The Bush administration could instead have chosen to create a true alliance of democracies to fight the illiberal currents coming out of the Middle East. It could also have tightened economic sanctions and secured the return of arms inspectors to Iraq without going to war. It could have made a go at a new international regime to battle proliferation.
Yep. That's what left opponents of the Iraqi invasion have long been saying. But Fukuyama is generally considered to be a conservative.
This next set of observations by Fukuyama implicitly raise another point that conservatives have remained silent on:
Failure to find weapons of mass destruction in Iraq and the inability to prove relevant connections between Saddam Hussein and Al Qaeda left the president, by the time of his second Inaugural Address, justifying the war exclusively in neoconservative terms: that is, as part of an idealistic policy of political transformation of the broader Middle East.
A longstanding faith of conservatives--of the Burkean type--is that it is wrong, foolhardy, and doomed to failure, to try to remake a society by massive government (war or legally imposed) intervention. A society has an organic existence shaped by its customs, moral beliefs, and traditions; things change slowly through internal shifts in prevailing ideas. The very notion that we could (or should) invade a nation to help (or forcibly) transform it into a democracy is about as un-conservative as you can get. Principled Burkean conservatives should be howling in protest at the neocons and Bush for trying to justify this adventure in terms of spreading democracy. This is not to say that more democracy in the Middle East is a bad idea, but rather that this is not the way to make it happen.
Fukuyama ended his essay leaving no doubt that his commitment to his principles is more important than solidarity with Bush:
We do not know what outcome we will face in Iraq. We do know that four years after 9/11, the whole foreign policy of the United States seems destined to rise or fall on the outcome of a war only marginally related to the source of what befell America on that day. There was nothing inevitable about this. There is everything to be regretted about it.
It is likely that Fukuyama will be ostracized by some of his conservative friends for writing this essay (according to a report, that already happened some time ago when he first began speaking out against Bush's Iraq policies). Instead they should applaud him for demonstrating conviction in his conservative principles.
One of the worst aspects of current public discourse is that anyone who expresses an honest opposition to the Iraq War risks being labeled an extremist, or unpatriotic, or a supporter of anti-American terrorists. No one can say any of those things about Fukuyama.
Another matter in the news almost daily cries out for convervative criticism: the aggressive attempts by Christian conservatives to impose their views legally or by government action on the rest of us (the latest being the withholding of the morning after pill). Any libertarian conservative inspired by Mill's On Liberty should take umbrage at these activites. Speak out, please.
There are many principled conservatives, of course. Hooray for all of you.
Principled liberals and principled conservatives disagree across a spectrum of issues. The best we can hope for is disagreement over honestly held beliefs by open-minded people who want to do the right thing.
Fukuyama was wrong, and I think he owned up to it, re his "The End of History" following the end of the Cold War. But will George W own up to his mistakes?
There are other conservatives who have steadfastly defended George W who in recent months occasionally, to maintain some sense of their remaining integrity, express some form of disagreement with George W. Include George Will, Jim Hoagland, David Brooks and even Charles Krauthammer. Perhaps they wish to avoid being in George W's lame duck category when, as they say in the Middle East, "The fit hits the Sham."
Mostly I agree with this piece, but the author can't leave well enough alone. I really doubt that an observer from Mars would conclude that Christian conservatives are uniquely desirous of imposing their own views on others. Who's trying to force the Boy Scouts to accept gay scoutmasters? Who's trying to force pharmacists to violate their own consciences? Who's trying to use RICO to get Christian books removed from school libraries? Etc.
Since principled people can cause a lot of harm, the fact that Roberts is a principled conservative is only partly reassuring.
I'd add too that intemperate words on both sides is not somehow unique to our age. Pointless ranting will do us little good, but we are talking about important things here. Some passion is expected and even desirable.
Finally, a "principled conservative" is not always a "libertarian conservative" -- they are really different animals. A principled conservative can accept, and does accept, limits on the rights of individuals. They believe public morality and well being demands that.
If you want to further levelheaded debate, one might want to underline this fact.
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