Hadley Arkes, in his inimitable way, tells us how the first New Deal was, literally, laughed out of court. (Go to the clip at roughly 9 minutes for that part of the video).

That, and much else from the C-Span archives, are now available for free on the web.  I have been known to use a portion of this lecture, along with readings taking the other side, in my constitutional history classes. I imagine that there are countless other lectures now available that are equally useful for the classroom.  If readers here remember other such talks on C-Span, please note them in the comments.

Sex week: how one of our most prestigious institutions of higher learning educates the leaders of tomorrow. 

I have been reticent to criticize President Obama on foreign policy, but his stance toward Israel's government is troubling.  I think that Obama has gotten Iraq and Afghanistan mostly right, and to the extent that I disagree with his policies towards those countries, I am not confident that he is wrong and I am right.  He has been much more responsible with the Iraq drawdown that I feared.  I wish that he would be willing to push for a longer term American presence in Iraq (even if it involved small numbers of American troops) as a way of balancing Iran's influence in the country, but I can see a whole bunch of good arguments on the other side.  I'm glad that Obama defied his base and adopted and resourced a counterinsurgency strategy in Afghanistan.  I'm not a fan of his announced drawdown timetable in 2011, but Obama has often showed that he believes that artificial deadlines and timetables are needed to push players to get anything done.  It doesn't mean that if the war isn't won by 2011, the US will quit.  In the health care debate, Obama announced deadline after deadline, and when those deadlines were blown, he kept pushing forward until he won.  We can hope that he will show half as much tenacity in defeating our country's enemies.

But Obama's policy toward Israel is puzzling if one assumes that its purpose is to bring together the current Israeli government and the West Bank based Fatah government together for meaningful negotiations.  Obama's public standoffishness and demands for unilateral Israeli concessions guarantee paralysis.  The Israelis could be expected to balk at a demand to give up something in return for nothing, and the Palestinians could boycott talks until Obama extracted Israeli concessions.  The Palestinians could then come in with their own set of demands.  The Politico notes Dennis Ross arguing within the Obama administration about the political constraints that Israeli Prime Minister Netanyahu faces in obeying Obama's demands to stop Jewish building in East Jerusalem.

I suggest that Obama understands Netanyahu's political constraints quite well and that Obama's Israeli policy has a stategic purpose - though not one that I approve of.  I think that Obama has concluded that Netanyahu will bever be the negotiating partner he needs and that Netanyahu must first be replaced with a more pliable Prime Minister.  Obama's Israeli policy makes sense if one thinks of it as designed to bring down the Netanyahu government and bring in a "pro-peace" Prime Minister. 

The Obama administration's leaked and public displays of hostility toward Netanyahu are a signal to the Israeli center that Netanyahu is endangering Israel's alliance with her most valuable ally. Obama's demand for unilateral Israeli concessions on building in East Jerusalem (and delivered in such a way that it would be a  public humiliation for Israel to comply) is designed to cripple Netanyahu's support from the right.  If Obama can get Netanyahu to cave, Netanyahu will lose support on the right and gain no credit from the center.  If making concessions on West Jerusalem des not break the Netanyahu government, then there can always be other demands on other issues. 

Netanyahu has evaded this trap so far because Obama has chosen lousy ground on which to pick a fight.  Netanyahu's resisting a total building ban in the Jewish neighborhoods of East Jerusalem seems to have broad support on both Israel's right and center.  Netanyahu can defy Obama on this issue without fearing erosion of support from any group that might be at all inclined to vote for him. 

Aside from the moral problem of trying to bring down an allied country's democratically elected government, Obama seems to misunderstand the area's dynamics.  Israel is a different place than it was fifteen years ago.  America can't produce a peace process by seeking to replace a Shamir with a Rabin.  Too many Israelis remember how the last peace process worked out - with huge Israeli offers of concessions followed by a string of suicide bombings.  Any Israeli government will have to take into account of the public's skepticism that unilateral Israeli concessions will bring peace any closer.  This public skepticism will either restrain or bring down any Israeli government that seeks to do Obama's will.  Any real peace process will involve state-building and economic growth in the West Bank and a focus on reciprocity.  And it probably will not conclude while Obama is President, even if he serves two terms. 

So what are Americans who want to see our President succeed (which is not the same thing as always getting his own way) and who are friends of Israel to do?  In one sense there is little that anyone can do.  The President has most of the leverage in conducting foreign policy (there are all kinds of things Congress could, in theory, do but I see them as unlikely).  A few first steps would be to recognize what Obama is doing and to bring it to the public's attention that he is using an unwise tactic in pursuit of a reprehensible strategy and hope that some measure of public opposition (possibly inflamed by an outraged sense of democratic fair play) will lead Obama, against his will, to adopt a more sensible approach.   

President Obama is now saying that we should tone down our rhetoric.  A fair point.  But is he the proper person to deliver that message?  This from a man campaign organization riles up doners with rhetoric like:

"Don't think for a minute that power concedes without a fight," Obama reminds his fundraising targets. "Please donate to Organizing for America's campaign to win this fight and ensure that real health care reform reaches my desk by the end of this year."

And we ought not to forget, as John Hinderaker notes, comments like: "if they bring a knife to the fight, we bring a gun," and who exhorted his supporters to "get in their face."  Unfortunately, a "community organizer" may not be a good candidate for calming the waters.

Welcome to the federal menu mandate:

Davinni's a local pizzeria-sandwich restaurant with 22 locations around the Twin Cities, will now have to comply with this mandate.  A caller to my Saturday show (who wished to remain anonymous) told my radio partner Mitch Berg during a commercial break that it will cost Davanni's approximately $200,000 to comply with the new mandate -- just to start.  Every menu change will require Davanni's to have the new or modified items re-analyzed, which means that Davanni's will probably resist adding new options for their customers.  Meanwhile, larger chains with more economy of scale for such efforts such as Pizza Hut can do the tests once for all of their locations, keeping their prices lower for their customers -- which they already do, thanks to consumer demand for the information.

Under those circumstances, will Davanni's feel compelled to keep the extra three locations open, or to scale back to 19 to avoid the mandate?  Even if they do keep all of their locations, that $200,000 will now get spent on something other than new jobs for teenagers and adults, and customers will pay higher prices for their food.  Local and regional chains with 15-19 locations have a big economic disincentive to expand any further. I don't know much about Davanni's bottom line, but I'm pretty sure that even though they make some of the best pizza and hoagies in the area, they don't have $200,000 lying around the pizza sauce to blow on lab analyses this year, or any other.

     I was perusing through a new edited volume of essays on the legendary American Founding historian Forrest McDonald and noted with delight discussion given to one of the more difficult concepts contained in The Federalist. This is the idea of "Liquidating" the meaning of the provisions of the Constitution as discussed in #s 37, 78, and 82. Specifically the discussion in #37 is most apt to our current distressing situation where Publius discourses on the difficulty ascertaining the boundary between federal and state powers. He states, "Here then are three sources of vague and incorrect definitions; indistinctness of the object, imperfection of the organ of perception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and state jurisdictions, must have experienced the full effect of them all."  Elsewhere Publius notes in the same paper, "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series of particular discussion . . ."

      This leads directly to a fear I have  that the State AGs may ultimately do more harm than good in their suits on the individual health insurance mandate being a commerce clause violation. Granted that this mandate does seem to breach the clause by the letter and spirit of the thing but is that going to be enough for the courts who with one ruling could gut the commcerce clause almost indefinitely? The courts, if they uphold the purchase mandate as fitting within commerce clause power, which I think is likely, while probably not stating it as such, will likely defer to something like the "liquidation" process Publius observes. The people through discussion over the years will have regarded this as constitutional and we must recognize the process that has occurred would be the reasoning underlying the more technical analysis. 

      The notion of "liquidating" the meaning might force us to repair to the fundamental equality of the federal branches of government and the equal claim they have on the Constitution. Thus, through public debate the "the cool and deliberate sense of the community" might be reached and the mandate overturned in this fashion. Might the responsibility rest with the democratic branches, at least as first movers, to effect the determination that this purchase mandate, if allowed to stand, recognizes no limits to federal power. At the least, such an attempt by a conservative president and congress might fall a few votes short, but it is better than the constitutional precedent that seems likely to follow from the AG suits.

Thanks to Peter Schramm for forwarding this WSJ opinion piece from Virginia Republican James LeMunyon.  I include it here as a follow-up to an earlier post in which I argued that the states should move to amend the Constitution by calling for a new convention under Article V.  

Whereas I suggested that Republicans should target the constitutionality of the health-care bill's individual mandate, LeMunyon points more broadly to the problem of a broken Congress, citing the need for solutions long championed by federalists, such as a line-item veto and congressional term limits.  LeMunyon's approach strikes me as a winning one, for it would allow constitutional reformers to avoid sounding like one-trick ponies on health care and instead zero in on the real source of popular discontent: a "runaway" national government driven by modern progressives and their zeal for elitist authoritarianism.  

Five of thirteen polls [i.e., only five] taken since last July have shown Ted Strickland leading or tied with John Kasich.  Four of those polls are Quinnipiac polls [demonstrated earlier in the article to tilt Democrat] (see also, Ohio Senate, supra).  Regardless, Quinnipiac has Strickland leading Kasich by only 43% to 38%.  An incumbent below 50% falls into the "vulnerable" category, and an incumbent below 45% starts to fall into the "needs a freak circumstance to win" category.  Strickland hasn't broken 45% since October.

In today's Washington Post, the distinguished historian of colonial and revolutionary America, Timothy Breen argues that today's tea parties are very different from the original.  In particular he argues, among other things that "the American patriots of 1773 and 1774 worked hard to promote unity," and that "the colonists did not protest taxation. . . . They protested against taxation without representation, an entirely different matter."

That's fair enough, if, among other thigns, the correct comparison is with the Revolutionary movement on the whole.  But the comparision is not apt.  The coercive acts of 1774 changed the stakes and the nature of the tactics the were proper to resist.  In 1773, the stakes were lower, and the nature of the protest was different.   In 1773, few were thinking of revolution.  They were simply trying to block the enforcement of one law. In every colony other than Massachuetts, local authorites let that happen. Only in Massachusetts did the governor force a confrontation.

Beyond that, there's the growing problem of unresponsive government.  The modern administrative state is, in some ways, like the old Brithsh government. It is not based upon consent in a robust sense.  When representatives don't read the bills on which they vote, and therefore don't truly consent to the actual contents of the bill, and when they delegate much of the actual code-writing to the permanent bureaucracy, consent ain't what it used to be.  As Charles Kesler noted recently:

Today's Tea Party movement sees a similar threat of despotism--of monopoly control of health care, corrupting bailouts, massive indebtedness, and the eclipse of constitutional rights--in the Obama Administration's policies. The Tea Party patriots may mistake the President's motives when they compare him to King George. But they are right to suspect in the very nature of modern liberalism and the modern state something hostile to the consent of the governed and to constitutional liberty. The republic will owe them a debt of gratitude if Obama's plans end up just as wet as George III's, floating in the salty tea pot of Boston Harbor.

One could even say, given the size and scope of the U.S., in some ways it would not be improper to quote the resolves of the Stamp Act Congress which held that, "That the people of these colonies are not, and from their local circumstances cannot be, represented in the House of Commons in Great Britain."  All Americans are represented in Washington.  Even so, one can still hold that "local circumstances" mean that extensive efforts to govern the intimate details of our local communities are, by nature, improper for the central government.  There's a reason why Sam Adams did not want to have a strong central government.  He knew that it could, over time, grow to be remote from the people, even if the national legislature was selected by elections.

Finally, Breen seems to suggest that the patriot movement of the 1770s was not controversial. Ha!  He is correct, however, to say that they were concerned with making compromises in the name of unity.  But perhaps one could say that tea party support of Scott Brown resembles those efforts at unity.

"A Washington Post poll taken last week showed that more people view the [Tea Party] movement favorably than unfavorably -- and that 62 percent believe it has either the right amount or not enough influence on the Republican Party."

      One of the primary tragedies that will largely go unnoticed by most voters is the uncreated wealth and lost innovation within the healthcare industry through the mandates, regulations, and increased taxes of Obamacare. In a manner reminiscent of Hazlitt's "Broken Window Fallacy" whereby many believe that overall wealth is made by the repair of a shopowner's busted window only because they never consider that said shopowner could have spent his money in some other productive manner, many will believe that health care goods and services have been created because of government intervention that delivers  insurance policies to citizens. This will ignore the destruction of wealth accomplished by government spending and the greater costs of its primary inefficiencies. One of the primary virtues of open markets is their transparency of failure which leads to the opportunities for new investment and entrepreneurial activity within an industry. If a product and its delivery within an industry is not chosen by a critical mass then new methods will be ventured.

      What seems a basic insight is missed frequently by voters unable to connect sound intentions with long term effects in political economy. Thus, the current failures of our system: favorable tax treatment to employers for provision of healthcare which create the limited out of pocket exposure the consumer has to his health care decisions and the consequent effects on escalating costs will continue. The critical function of market correction can't happen because policy misdirects resources. The costs will continue to rise for consumers and now for government expenditures. The real consequence will be the future call by liberal pols to cut out employers and have a single-payer. This makes repeal and replace all the more significant if we are to avoid that most tragic of fates when our bodies are now the wards of the state.

I think I may have been misunderstood in some of my recent posts calling Republicans to account for having favored health insurance mandates and the Medicare prescription drug benefit.  It's true that I don't believe that Republican politicians are trustworthy on such matters.  Left to their own devices they'll fight a statist measure by Democrats by offering something only somewhat less statist.  Give them control of the White House and both houses of Congress and they'll run up a massive deficit, piling earmark upon earmark, and then complain when Democrats do the same thing.

But I recognize that, as weak-willed as they tend to be, they're our best hope, the only alternative being to support some third party.  This, of course, would be a disaster, splitting the conservative vote and guaranteeing Democrat control for the foreseeable future.  And surely it is to the credit of the GOP that every single member remained firm in the fight over the health care boondoggle.  This is not the Republicans' customary behavior; at the very least one might have expected some of the usual suspects (Snowe, Collins, Voinovich) to break ranks.

That this didn't occur has everything to do with the rise of the Tea Party Movement.  This is something almost entirely new to American politics, at least at the national level--a grassroots campaign of conservatism.  The Democrats never seem to have a problem finding a crowd to support some new federal entitlement; in many cases it's a matter of rounding up a bunch of college students, or visiting the local unemployment office.  For Republicans it was always different.  As P.J. O'Rourke put it, "conservatives have jobs."

The Tea Partiers are having an effect on the GOP similar to that of a stiff drink.  They're making them defiant, feisty, unwilling to sacrifice principle for some short-term face-saving advantage.  This is why the Tea Parties are such a refreshing development.  It also explains why the left is apoplectic in its denunciation of them.  No accusation, it seems, is too shrill. (I refuse to include a link to the infamous Frank Rich editorial from this past weekend, as I have no desire to promote the spread of his poison.)  Ugly incidents are provoked or, if necessary, invented out of whole cloth.  Democrats want back their old, pliable Republican Party--the one of Bob Dole, or before him Everett Dirksen and Charlie Halleck, the kind that could broker a backroom deal that succeeded only in making them seem like good losers.  They understand that their GOP will not return as long as the Tea Party Movement remains; therefore it must be destroyed at all costs.

We must prevent that from happening, and to do this the Republican Party and the Tea Partiers need to stand together.  Without the GOP's votes in the House and Senate, the Tea Parties are politically irrelevant.  But without the Tea Parties, congressional Republicans will most likely revert to form.  How long would it be before they stopped denouncing the health care plan and decide that it's acceptable, so long as it's controlled by Republicans (see Education, Department of)?  What this means, though, is that conservative intellectuals need to get behind the movement.  There is an understandable reluctance on our part to do so.  After all, we come from the tradition of Edmund Burke, James Madison, Alexander Hamilton, and Robert A. Taft, one that has long viewed politics as a gentlemen's game and distrusted mass action.  Many of us also differ from the Tea Partiers in matters of policy; personally, I do not share their enthusiasm for Sarah Palin, and I believe more than they in things like free trade and separation of church and state.  We need to get past this; the differences are too minor, and the stakes are too high, for us to remain in the ivory tower.  The next couple of election cycles may be our last chance to save the Republic.  We cannot afford to remain aloof.    

I don't want to kick Frum when he is down, and getting to appear on the Larry King show is no compensation for losing a steady (and to me, suprisingly large) paycheck.  I take him at his word that he is trying to articulate a viable right of center politics under contemporary cricumstances.  I just think that his approach involves giving up too many principles, uses too little strategic imagination, and will do no long term good to conservatives or America.  I think that his now famous Waterloo article is a good example of the type.  Frum was upset that Republicans did not try hard enough to "compromise" with the White House.  From what I gather, this compromise would have involved accepting a nationalized program of government madated comprehensive health care prepayment, in return for a different funding mechanism (he seems to want a carbon tax rather than Obamacare's taxes on high earners) and restrained Medicaid spending.  This is almost a parody of Ross Douthat's unfriendly description of liberal Republicans as trying to "head in the same direction as the Democratics, but more slowly, with more attention to balancing the nation's books."  No thanks.

Frum is also an eager but unconvincing salesman for how his more socially liberal, environmentally statist conservatism represents the future.  Frum argues that if Tom Campbell, Meg Whitman or Carly Fiorina, win statewide in Califormia, it will signal a win for "middle-class opportunity and social modernism."  Now you don't think Frum may be talking about himself now do you?  I have two problems with this analysis.  First, so many kinds of Republicans are likely to win so many races this year that everyone will be able to point at how their kind of Republican (Rubio, Kirk, Portman, Toomey whoever) represents the way forward for the party, and all of them will be seeing what they want to see.  Second, why does Frum think he needs to look into the future to see how his kind of conservatism works?

Who better personified the Frum conservative combination of social liberalism, green preening and "fiscal conservatism" than Arnold Schwarzenegger?  He won two statwide races but, from a conservative perspective, it was a barren victory.  He was able to win over some social liberals by hugging them on the social positions and offering the hope of fiscal competence in the face of Democratic mismanagement.  He was able to make some marginal gains among nonwhites by distancing himself from the toxic conservative Republican brand - toxic in California that is.  The problem was that the win was not really based on winning the voters over to shared principles or a durable issue agenda aside from better economic management.  He was hired to be social liberalism's Mini-Me and economic liberalism's finance coach.  The state's normal coalitional dynamics reasserted themselves and Schwarzenegger moved farther and father left in order to buy off liberal-leaning interest groups and survive. 

In California and the rest of the country, there is no real alternative to doing the hard work of recruiting constituencies that are currently alientated by political conservatism, and doing so on a set of principles that can unite the current conservative base and potential converts.  Bob McDonnell in Virginia has given us some insight in how to do that, though I don't think all of the answers are found in his campaign.  The alternative of social liberalism + green statism + Obamacare Lite + fiscal conservative (but not very conservative) rhetoric promises policy disaster. 

The more opportunistic leftists libel Obamacare opponents as racists for wanting to limit federal government powers--and presumably justify states'-rights segregationists.  (Tell that to the sanctuary cities movement.)  We need to remind ourselves why the Founders made the bedrock principle of federalism, the equal representation of each State in the Senate, an unamendable part of the Constitution (Article V).  Consequently, thinly populated "red states" (with their guns and bibles) will always be with us.  (There are of course blue states with small populations, too.)  The federalist principle here is manifested most vividly in the electoral college--another institution the left would do away with.  The Sage of Mt.Airy has further thoughts on Federalist #51 and federalism's role in limited government.