A view from the sidelines

I haven't posted in a while, as I've been watching the events of the past few weeks from the sidelines. I have my opinions about these events but I think this article sums them up nicely.
I'll post my own in the next day or two.

Terri Schiavo and Political Principle: Republican Errors and Their Consequences
By Ross G. Kaminsky 3/28/05 web: http://blog.rossputin.com e-mail:
rossputin@rossputin.com

Yes, Virginia, there are principles in politics. It’s just that the politicians are ignoring them.

When considering a government action, Americans look at more than just its direct effect. We care about the principles involved such as federalism and constitutionality, as well as the potential impact of the precedent created. This is true of the average
citizen at least as much as of the political elites and usually of conservatives at least as much as of liberals.

In the sad case of Terri Schiavo, the Republicans in Congress have forgotten this to the detriment of our political system and, I expect, their own political fortunes. I say this as someone who has been a registered Republican for most of my adult life.
Republicans have traditionally been champions of federalism, often called States ights, the principle that unless a power is specifically granted to the Federal government by the Constitution it is reserved to the States or the People. Congress may not simply regulate anything it wants to. This concept is part of the political
bedrock of our Republic, recognizing our differences and serving to prevent a
"tyranny of the majority" as cautioned by James Madison in Federalist Papers
#10.

In this case, Republicans in Washington have mounted a hypocritical and
dangerous assault on federalism, involving Congress and the President in an area
where they have no Constitutional authority. Some acted believing that their
religious views trump the 10th Amendment and others hoping (including putting in
writing) that the issue can be used for political advantage. The Republicans are wrong on both counts. Our Constitution forbids Federal intervention where
not specifically permitted and our government is intentionally designed to
prevent the imposition of one group’s moral convictions upon society even if
that group is the majority. Any other structure is the short road to tyranny.
They are wrong on the political effect as well: Polls show that the vast
majority of Americans including Republicans oppose Federal involvement in the
issue and find Congress’ actions to be transparently political.

As far as "mobilizing the base" goes, even the religious right wonders where the line will be moved once drawn in D.C. What aspect of one’s personal or spiritual life will
Uncle Sam try to dictate next? It was foolish of Tom DeLay and friends to think
that Christian conservative citizens would abandon their political principles as
easily as their representatives did.

Another bedrock principle of our Republic is separation of powers, an often ignored aspect of which is that branches of government are progressively more shielded from the changing whims of the public. The degree to which a politician or judge’s view on an issue is likely to be swayed by public opinion is proportionate to how soon he or she must next stand for election. Thus, members of the House (elected every two
years) shift with the political winds, while judges -- especially Federal Appellate Judges and Supreme Court Justices who serve for life-- should be nearly immune to such pressures. Judges serve as a critical barrier between the short-term passions of the people and the long-term rule of law.

Conservatives have properly been champions of strict constructionism (i.e. a
reading of the Constitution which does not change substantially over time or
based on current public opinion) and opponents of judicial activism. In other
words, judges should interpret the law, not make it. Yet in the Schiavo case
Republicans in Congress decry the proper function of the judiciary because they
do not agree with this particular outcome. Did they not notice that the key
trial judge (George Greer) and a key appellate judge (William Pryor Jr.) were
Republicans? Indeed, Pryor was appointed while the Senate was in recess to avoid
Democratic filibuster. If any judges would have sided with a plausibly
permissible Federal intervention they would have but the rule of law did not
allow it.

Basing a decision on likely result without consulting principle had been primarily the province of the Democrats. It was quite a gift for them when the Republicans decided to maroon themselves on that same principle-free island. The Republicans forgot that bad policy is bad politics. This attack on an independent judiciary is both more hypocritical and more dangerous than the attack on federalism. It is wrong for the same reasons that the attack on federalism is wrong, but it is especially stupid politically going into a well-publicized Senate battle over Bush’s judicial nominees.

Republicans have left themselves vulnerable to an easily justified charge that they oppose judicial activism except where it yields a result they approve of. Republicans
have given up the moral high ground by arguing that the end justifies the means,
something inimical to the rule of law. This is not to say that the Democrats now
have the high ground on the issue; all parties are now in the swamp. The Democrats are wrong on the issue, but at least they’re not hypocrites. Congress passed a law addressing Terri Schiavo specifically. Some conservatives argue that the judiciary then failed in its duty by ignoring the clear intent of the legislature. But this argument simply highlights contempt for the Constitution. If Congress can write a law for any special case at any time and demand a judge support the law simply because Congress wishes it so, the independence of the judiciary is eliminated. It becomes a rubber stamp for the legislature and, as the Founders warned, one of the greatest dangers to the foundation of our civil society.

Clearly it’s not just the principle Congress was wrong about. It is astounding that a organization as shrewd as the Republican Party also made such a major political miscalculation. They became hypocrites only to find themselves staring at polls showing over 80% of the population (including over 70% of Republicans) opposing Federal involvement and similar numbers believing that involvement came from calculating political advantage rather than caring about Terri Schiavo. In important recent elections, including Bush vs. Gore, Bush vs. Kerry, and Thune vs. Daschle the Republicans have won in large measure because they are perceived to be the party of principle. Even those who do not agree with a party’s every position are likely to vote for a candidate who operates with principle-based predictability. Republican principles based on strict constructionism include strong support for federalism, an independent Constitution-respecting judiciary, and the consistent rule of law. Just not this month.

Congressional Republicans’ recent actions might end up as political non-events. More likely they will hurt the party in upcoming judicial nominee battles and other important debates, with possible but limited carryover into the mid-term elections. Although I will consider it a sad day when the Democrats again control the House or Senate, it would not break my heart for the Republicans to learn the importance of respecting the Constitution even if it means their losing a seat or two.

Most of the country sees the hypocrisy in the Congress’ actions regarding Terri Schiavo. We recognize the serious threat those actions imply to our system of government. Why is it that the Republicans in Washington are the last to understand?

Ross Kaminsky is a Fellow of The Heartland Institute and has a degree in Political Science from Columbia University.