Obamacare

Liberals Worry the Health Care Decision Will Kill the New Deal

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As Nick Gillespie noted earlier, Mother Jones writer Nick Baumann was made so nervous by yesterday's health care decision that he raised the specter of America falling down "the slippery slope to the libertarian paradise."

Writing at the blog of the liberal American Constitution Society, Steven D. Schwinn of the John Marshall Law School strikes a similarly apocalyptic note, worrying that federal Judge Henry Hudson's ruling will send us back to those dark days before the New Deal transformed the Supreme Court:

The ruling isn't just a repudiation of the individual mandate; it's a proclamation on federal authority and federalism that would take us back to the early twentieth century, the days of an activist and obstructionist judiciary that frustrated the political branches at every turn. This kind of judicial activism will take policy decisions out of the hands of democratically elected representatives and put them in the hands of judges.

Schwinn is relying here on a longstanding set of myths that have smeared the pre-1937 Supreme Court as a reactionary force that thrwarted necessary popular reform. The prime example that's usually trotted out is Lochner v. New York, the unfairly-maligned 1905 case where the Supreme Court struck down the maximum working hours provision of New York's Bakeshop Act for violating the Due Process Clause of the 14th Amendment. That case served as the basis for several other important decisions striking down Progressive Era economic regulations.

But there's something Schwinn and other left-leaning critics don't tell you: Lochner also played an important role in several "activist and obstructionist" decisions that should cheer today's liberal legal movement. For example, in 1917 the NAACP won its first big case when the Court struck down a Louisville, Kentucky residential segregation law for violating property rights under the 14th Amendment (the NAACP cited Lochner in its brief). Six years later, in the case of Meyer v. Nebraska, the Court cited Lochner when striking down a state law banning foreign language instruction for young children.

Schwinn also claims that before it saw the light and voted to uphold the New Deal, the Supreme Court practiced a formalistic jurisprudence "that expanded the role of the judiciary at the expanse of Congress in questions over the latter's constitutional authority." The key decision he's referring to here is Schechter Poultry Corp. v. United States (1935), where a unanimous Court struck down the National Industrial Recovery Act of 1933, which, among other things, relied on the Commerce Clause to micromanage even the most local of economic affairs. That sweeping exercise of congressional authority proved too much even for progressive icon Justice Louis Brandeis, who joined the majority in voiding the law. I mention Brandeis only to note that even liberal heroes from that era realized that the Court needed to act "at the expense of Congress" from time to time.

Finally, Schwinn argues that if Judge Hudson's ruling ever becomes law, the precedent "will frustrate conservatives every bit as much as it will frustrate progressives." Let's hope so. Both Democrats and Republicans favor the broad use of federal power, they just differ over which set of liberties the government is going to trample. Any judicial ruling that frustrates both sides has done something right.

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  1. he raised the specter of America falling down “the slippery slope to the libertarian paradise.”

    You know what doesn’t exist in libertopia (apparently)? ROADS!

    1. What baffles me is why the liberals won’t get behind this. Without roads there would be very few cars, less pollution and global warming, and we could all go back to dying young like Gaia wants.

      1. That would be the one time we actually *need* to head down a slippery slope.

        Fuck Mother Jones.

      2. True, but that would also lead to less taxes and a smaller government. Being that government is the only source of any good that ever happens to the human race in progressive’s minds; it seemsthey are willing to tolerate some accidental economic progress to protect the size of government.

        1. Nah, just tax the rich. It will all work out in the end if we just tax the rich.

    2. he raised the specter of America falling down “the slippery slope to the libertarian paradise.”

      Slippery slope, eh? If it’s so goddam slippery, how come neither the GOP or Dems have *ever* so much as thrown ‘libertarians’ a bone?

      I think 10 years ago the word “libertarian” was hardly ever mentioned in mainstream press or many Lefty magazines like Mother Jones or the Nation (at least I never noticed… not that I was an avid reader of those rags)… I think this was for at least 2 reasons:

      1) most journos really had zero experience with anything outside of maybe Atlas Shrugged, and didn’t really understand where the whole libertarian thing fit into the political spectrum. I mean, most liberal arts kids get out of college without the faintest understanding of economics…You expect them to start parsing Heyeck & Friedman? Good fricken luck.

      I think at the time (say, early 2000’s) they were like, “eh, Libertarians? they’re kinda wonky and harmless. Like weasel farmers who want to return to the Gold Standard. Some of them are like the Nietzschian hipster who wear black turtlenecks and engage in kinky sex, and others are like Idaho survivalists who want to declare the state of Freedonia and refuse to recognize any form of paper currency. All in all: cute but harmless… and not particularly important to the Endless Struggle Between Team Red & Team Blue.

      2) They also had other more potent, tangible symbolic enemies at the time…namely the Religious Right. Coming out of the 90s, there was still the sense that there was a large element of the country under the sway of Megachurches and groups like Focus on the Family, Family Research council, the Moral Majority, etc etc.

      Then in the early 2000’s, the Religious Right was joined by a resurgent evil right-wing cabal: The Neocons. Warmongering Intellectual Power-Insiders. Big-State, Warmongering Conservatism run amok. Now the religious right has guys in the Pentagon riding shotgun? Oh noes!

      With the withering of the Religious Right as a primary force driving GOP political success, and with the Neocon experiment having produced complete foreign policy disasters…I think the Left has had a bit of a identity-crisis moment. For a minute, it was unclear who they HAD LEFT TO HATE? Who to blame for our own impotence and lack of coherent policy proposals?

      The key shift I think conveniently coincided with the Financial Crisis; liberals have always (as noted) been pretty mushy (to put it mildly) about economics and finance. How did this awful thing happen? Who can we point a finger at? ‘Wall St Fatcats’ worked for a minute, but they lacked a certain scaryness, and besides, thinking too hard about macroeconomics or finance always hurt their brains. They needed something more fundamental, broader in scope = “”what philosophy underpins these capitalist Masters of the Universe…? Who are their ideological minions? And who are these strange younger people at Ron Paul rallies chanting ‘end the Fed’? What IS the Fed anyway??””

      Especially following the election of Obama…(and out of disappointment and disillusion with Obama’s inability to fulfill their vague, amorphous fantasy of a New Glorious Era of Liberal Rule) the Left has a desperate need to resuscitate a vision of an all-powerful, scheming Enemy, sort of like an Eye Of Sauron that has been lurking quietly, unperceived in the darkness all along, only now emerging in physical form to crush the idyllic pastoral fantasy world and turn it into a capitalist industrial nightmare.

      Thus, the new fetishization of Libertarians as the Enemy Du Jour in the liberal media.

      Suddenly libertarian ideas are no longer ‘silly and harmless’ = they present an existential threat to the rise of an Enlightened Liberal Society.

      I’ve been surprised at how rapidly and viciously some people will react to anything that smells even vaguely libertarian these days, compared to the recent past…

      Like, for instance, someone was talking about “revitalizing” Coney Island, and I was like, “well, they need to provide some incentives for investment”… and people screamed like I’d just advocated mass cremation of Retarded children. “You’re like the guys who destroyed the economy! I bet you want to privatize the Statue of Liberty too! Put a fucking Coke sign on it! The Parks Department runs the beach already, they should run the whole area! It’s people like you that want to let Wal Mart build on Indian Burial grounds”…

      By the way, some of those are verbatim quotes.

      Same goes with talking about charter schools, or reducing agricultural subsidies. Where before, people would tend to listen to me with some curiosity, generally interested in the specific topic, now I am a representative of the Great Evil Conspiracy to undermine the president and throw welfare babies on a great Pyre of Capitalist Creative Destruction. “Kill the weak! The poor all deserve it! Survival of the fittest! Sell Alaska to BP! Bwa ha ha ha ha ha!!”

      I think part of the concentrated-hate libertarianism has been getting lately is also some genuine fear that as a philosophy it is actually more coherent than Lefties are willing to admit.

      I also think there’s been an upsurge amongst younger people… where the comfortable leading market share that progressive liberalism has held amongst college kids is suddenly facing an emerging competitor. And he’s *cool*?? he smokes weed, listens to Devo, and reads William Burroughs? What the fuck?? Conservatives were *easy* to laugh off. They dressed in khakis and wore golf shirts and never got laid. I suspect the rabid anti-libertarian reaction I’ve seen from some liberals is a genuine fear that their own brand of political advocacy is maybe past it’s prime.

      Eh, that last one, maybe not so much. I still frequently note among Progressive types the smug assumption that anything other than their own concept of an All Powerful Benevolent Liberal State is, “ridiculous”. People like us are “crackpots”.

      1. Cool story, bro.

      2. Consider ideology as religion: for a while, while Christianity in general was the only game in town in the West, there were multiple factions that bitterly loathed each other, particularly along the Catholic/Protestant divide. But eventually, deists, agnostics, and even atheists become more prevalent, and both groups realized that these thinkers as well as a general trend of secularization even among professed Christians posed a threat to them both.

        Statism is the new monotheism, and libertarians and anarchists are the new deists and atheists. And some on both sides of the statist spectrum are realizing that they would be better off putting aside their differences to face a common threat (thus, the NYT conservative).

        I was going to work some analogy between Wikileaks and the Betrayer’s Crusade in there, but I figured that would be too much of a stretch/too obscure…

        1. I think that’s a fair counter/complementary narrative.

          I have also in the past pointed out the longstanding similarities/relationship between religious impulses and political parties… how they are ritualized, how they use religious language, how they imitate a ‘preaching’ rhetorical style, how they wrap themselves in symbology at times… one of my favorite quotes along these lines being from Spartacus =

          “”
          Julius Caesar: Rome is the mob.

          Marcus Licinius Crassus: No! Rome is an eternal thought in the mind of God.

          Julius Caesar: I’d no idea you’d grown religious.

          Marcus Licinius Crassus: [laughs] It doesn’t matter. If there were no gods at all I’d still revere them.””

          That said, I actually think real religion(s) is/are actually often a good thing… in some ways at least. (I am often in the minority here defending religions as being a haven from the dominance of the state…but not worth getting into any deeper at the moment) … Whereas the pantomime religion of politics is ultimately corrosive and bad for individual freedom (all politics generally being a matter of what a majority can try to force upon a minority).

          In short, I think the recent use of ‘libertarianism’ as an easy whipping boy for liberals is a product of a variety of factors. Of which your own interpretation is likely part of the mix.

          The most common (and in my view, ridiculous) criticism levied these days against nominal ‘libertarian’ thinking is that it is hopelessly naive and ‘utopian’; to the contrary, I’ve always found the majority of libertarianish-leaning folk to be dogged-pragmatists who simply want to trim the horrible gobs of statist fat off our system and get back to core competencies. Yes, there are the Gold Bugs and the End The Fed types amongst us… but i think many would be happy with things as simple as reform of the entitlement system, the tax code, the recent tendency to claims of Imperial Executive power, the Drug War, agricultural subsidies, etc etc.

          Hell, I think if the recent burgeoning of libertarianish feeling in this country achieved progress on ANY ONE of these issues, we’d consider it a great thing. The “utopian” slander I think is so wide of the mark as to be laughable. We’d be happy just to see some progress on 1 or 2 things in the near term… at least after the last few decades of things going wildly in the wrong direction.

          1. Agreed on the last bit. While I would love a minarchist federal government spending less than 1% of GDP, I would be THRILLED with one spending 15% of GDP.

          2. Agreed on the last bit. While I would love a minarchist federal government spending less than 1% of GDP, I would be THRILLED with one spending 15% of GDP.

  2. America falling down “the slippery slope to the libertarian paradise.”

    He says that like its a bad thing.

    OMG! A government of limited enumerated powers! Run for the hills Canada!

    1. Somalia!!!!

        1. You just let old people die in the streets, don’t you. And orphans. And puppies. Why do you hate everything good?!?

          1. They don’t have to die. They can choose to eat the cat food they’re given. Or not. Except for the dog. He can choose to eat a chocolate bar. Or not.

            1. They have feet don’t they? Or most of them do, right?

              1. I once complained of having no shoes until I met a man with a 72″ Sony plasma TV.

          2. Of course not. We rob and rape them first.

            1. And then burn them to a crisp by holding our monocle up to the sun.

              1. I have a separate monocle just for that.

          3. And I suppose you would let fire fighters and cops and other public servants go without their 80% retirement at 20 years wouldn’t you? You are just an animal Episiarch. And animal.

          4. And I suppose you would let fire fighters and cops and other public servants go without their 80% retirement at 20 years wouldn’t you? You are just an animal Episiarch. An animal.

    2. They hate the idea of paradise, it’s a place where people are happy and not reliant on government for help.

    3. one can only hope

  3. “””Finally, Schwinn argues that if Judge Hudson’s ruling ever becomes law, the precedent “will frustrate conservatives every bit as much as it will frustrate progressives.” Let’s hope so.””

    Let’s do hope so.

    I’m confused as to what precedent he’s talking about. It’s upholding the law that would create a precedent, limiting federal power does not. Maybe if your understanding of US government only goes back to the 1940s

  4. Schwinn never gets talked about. It was a case of truly craven government action. Liberals dismiss it as the “sick chicken case”. But basically, FDR was trying to tell people they couldn’t chose what chicken they were going to buy. It is the kind of government power that toadies like Ezra Klein and Tim Noah would love.

  5. “This kind of judicial activism will take policy decisions out of the hands of democratically elected representatives and put them in the hands of judges.”

    Another way of saying, “Libertarian judicial non-activism bad, progressive
    judicial activism good”.

    1. That assumes the Constitution has no intrinsic meaning. It does (or did), and it’s largely libertarian.

      1. And that is why conservatives hate the Constitution so much.

        Newt Gingrich hates the secularism of the First Amendment as do many of his ilk.

        The 4th? Bush buttfucked it.

        The 5th and eminent domain? LMAO!

        The 14th? with birthright citizens and state compliance with the BoR? Cons puke blood.

        16th? They hate it!

        17th Cons want it repealed.

        24th Poll taxes – Cons love the idea.

        8th? ban on torture? Bushpigs hate that one too!

        Due process? Only fucking libs like that shit!

        1. So, shrike… when is your buddy Obama going to fix the broken things you listed above? We’re waiting!

          Except the parts that are bullshit, of course… no one is asking for a “poll tax”… and the 16th, which would not be missed by anyone sane. Hintity-hint hint.

          1. Obama has proven useless on the 4th I admit – but we knew that before the election when he voted for retroactive telecom immunity as a Senator.

            I hate that fucking vote as a civil liberties guy but McIdiot and Bible Spice were 100x worse.

          2. Mr. FIFY

            Ten extra points are awarded to you for being the first to get that one in about Obama’s presidential record!

        2. You set new standards of stupidity with each and every post, shriek.

          1. You can’t debate me. You know I will crush idiots like yourself.

            So avoid the Constitution as a topic like you just did.

            1. It’s spelled Constatooshun.

              Learn to spell before you call others idiots.

              1. In Shriek’s case it’s spelled Constipation.

        3. What is so wrong with repealing the 17th Amendment?

          Is there something un-constitutional about drafting a NEW amendment to repeal the 17th, much as the 21st repealed the 18th (thus ending Prohibition)?

          The argument against the 17th is pretty solid — Senators are now just “super-Representatives”, with a longer tenure. Let Senators be selected by the state legislatures again, with these legislatures having the power of recall over their Senators. THAT will get their attention in a pinch. You think McCaskill and Landrieu would have voted for ObamaCare had their respective state legislatures threatened to recall them if they voted in favor of it?

          1. Is there something un-constitutional about drafting a NEW amendment to repeal the 17th,

            Not that I can see. I think it would be an excellent idea actually – which means it will probably never happen.

    2. Tyranny of the majority is good, except when it’s not!

      Shit, these “liberals” aren’t even remotely civil libertarian, are they?

      Do they think that democratically-elected representatives are less likely to force religion on schoolchildren, restrict freedom of speech, etc., than judges are? Are they insane?

  6. Where is this paradise of hookers, blow and the for-profit lottery for offing of the poor and infirm?

    1. Yeah, if it actually existed, we’d all already be there, and that would clear the way for the perfect progressive society to happen, because the ultra-powerful libertarians wouldn’t be using their massive political power to prevent it any more. Right?

      Thinking like a leftist is difficult. It’s like trying to think like a schizophrenic.

      1. It’s only hard if you are a Christ-fag Bushpig.

      2. Actually, it’s far too easy to think like a leftist. And that’s why it’s such a fucked-up belief system.

  7. Both Democrats and Republicans favor the broad use of federal power, they just differ over which set of liberties the government is going to trample.

    They come to consensus on this more often than I’d like.

  8. Judicial activism is meaningless the way they’re using the phrase.

    1. Just like the Constitution, and that’s the way they want it. Until someone gets into power whose views they despite, and then the Constitution will be something else.

    2. Just like the Constitution, and that’s the way they want it. Until someone gets into power whose views they despise, and then the Constitution will be something else.

  9. Why even have a constitution if the courts cannot strike unconstitutional laws? Seriously, under the liberal interpretation there is no constitution ,

    1. beat me to it.

  10. To check out what world libertarians are doing to create Libertopia, please see: http://www.Libertarian-International.org

  11. This could mean no unicorns…

  12. How is striking down laws “legislating from the bench”.

    It appears to me that the PRIMARY purpose of having a judiciary is to tell the government “no, you can’t do that.”

    If the judiciary is supposed to defer to the legislatinve process, why even bother having a constitution, or letting people challenge the laws in court at all?

    The idea of legislating from the bench is that of judges broadly interpreting existing laws, so as to effectively create new ones.

    I can’t see how striking down a law in any way can be interpreted that way.

    1. If the USSC strikes down valid state statutes, it undermines federalism.

    2. How is striking down laws “legislating from the bench”.

      Because they’re striking down laws that liberals like. Next question.

  13. judicial activism is at its most sinister when it overturns the will of the majority based on questions of government authority

    Yeah, there’s nothing more sacred to the collectivist than the so-called will of the majority.

    “Sinister”. LMAO!

    1. will of the majority

      Does Jean-Jacques Rousseau or his estate get a royalty check every time some halfwit trots on the “will of the majority”/”general will” canard?

  14. “the days of an activist and obstructionist judiciary that frustrated the political branches at every turn.”

    Has this douche never heard of the concept of checks and balances?

  15. Sure, now they believe in a slippery slope, but when I mention a slippery slope with regards to mandatory service from children they’re all, “you’re a crackpot slippery slopes don’t really exist.”

  16. {Schwinn argues that if Judge Hudson’s ruling ever becomes law, the precedent “will frustrate conservatives every bit as much as it will frustrate progressives.”}

    Let’s hope so!!!

    Fascists on the left, or fascists on the right, they both smell as bad, just in different ways. Take your pick… a skunk, or an un-limed outhouse!

  17. Reading what these Liberals say is…amazing. I can just see them looking out their office window, happening upon somebody selling lemonade at an unregulated stand, and hot tears of rage and helplessness rise up. Then they start to panic about the Libertarian Horde, which is massed just outside the city walls. It makes me both mirthful and angry. Weird mix.

  18. will frustrate conservatives every bit as much as it will frustrate progressives.

    How in the Devil’s flaming sphincter could this possibly be a bad thing?

  19. @sage: Gigantic interstate highways might not exist in the libertarian paradise (though some might), but roads will certainly exist without government assistance if people want them and find them valuable.

    Not too long ago, I lived in an unincorporated area of my county. It had block after block of homes (some vintage, many late-model), parks, a business district and a couple of (small) shopping centers, along with other accouterments of modern civilization. What it frequently did not have was roads maintained by either city or county. I lived on such a street for several years. Amazingly enough, we had a paved road, maintained BY THE RESIDENTS. Yes, there were stretches of time when the potholes were allowed to proliferate to epic proportions. But, sooner or later, the homeowners would all pitch in money, labor, or materials to effect repairs, and all would be well again. This wasn’t due to taxation or a mandatory HOA levy, and nobody charged a toll to use the road, which was open to general traffic (though not well-traveled by non-residents, as it was a dead-end street). People just voluntarily did what was necessary to keep the road they shared in reasonably passable condition. As far as I know, they are doing that still. A few years later, I moved to an incorporated city nearby. They had potholes, too. Yet they also collected taxes, which were not guaranteed to go toward pothole repair, and, often as not, actually went to “nonprofits” that were favored by the city council, or to Parks and Recreation. It didn’t take me long to miss the way we did things in the other neighborhood.

    1. That form of counterrevolutionary collective is a threat to the State, Comrade. Only collectives that PETITION the State for repair of road are allowed. Please to report to nearest re-messaging center immediately.

      Repeat:

      “The State is good, the State is great;
      Only the Leader can determine my fate.”

  20. “This kind of judicial activism will take policy decisions out of the hands of democratically elected representatives and put them in the hands of judges.”

    Twits like Baumann try to spin a false definition of what constitutes “judicial activism”. It isn’t whether the court rules against some legislative body or not. Real judicial activism occurs when the judge does not rely on the actual text of the Constitution and the common understanding of what the words contained therein meant at the time of ratification as a basis for the decision they make. It is when judges start “creatively” interpreting those words to twist them into something that they don’t say and never meant – such as ruling the interstate commerce clause delegates power to the federral government to regulate anything that can be claimed to “have an effect” on interstate commerce rather than merely regulating direct interstate commerce transactions.

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