James Fallows Freaks Out
As we all await the decision of the United States Supreme Court in the health care case, there are evident signs that ardent liberals have freaked out about the current state of political play. James Fallows has a post up at the Atlantic entitled "5 Signs of a Radical Change in U.S. Politics." Its original title was “5 Signs That the United States is Undergoing a Coup,” which even he recognized was a bit over the top.
What is most surprising about his brief effort, and the somewhat longer effort on which it is based, is that it is devoid of argument. There are many statements of the sort that Chief Justice Roberts and Justice Alito have changed their spots since the statements that they gave during the confirmation hearings about the importance of judicial humility and deference. And there are further remarks to the effect that the professoriate thinks that the health care law is constitutional but believes that it will be struck down, and that Citizens United is the incarnation of evil with respect to the First Amendment.
But what is lacking is any argument as to why the views that Fallows defends are right on the merits. At no point does he actually quote text to support his position, and the view that deference should be so broad as to leave the Supreme Court little more than a rubber stamp of Congressional behavior is not all that appetizing either.
There is, of course, not the slightest mention that the progressive decisions that Fallows regards as sacred text represent a huge unauthorized expansion of federal power in the New Deal period—originally by a 5-to-4 vote in NLRB v. Jones & Laughlin Steel, which fashioned arguments out of whole cloth to uphold the National Labor Relations Act, which had been previously been struck down by three Circuit Courts of Appeal. Here is one such decision, which treats the case as a no-brainer against the government:
One who produces or manufactures a commodity, subsequently sold and shipped by him in interstate commerce, whether such sale and shipment were originally intended or not, has engaged in two distinct and separate activities. So far as he produces or manufactures a commodity, his business is purely local. So far as he sells and ships, or contracts to sell and ship, the commodity to customers in another state, he engages in interstate commerce. In respect of the former, he is subject only to regulation by the state; in respect of the latter, to regulation only by the federal government. Utah Power & L. Co. v. Pfost, 286 U.S. 165, 182, 52 S.Ct. 548, 76 L.Ed. 1038. Production is not commerce; but a step in preparation for commerce. Chassaniol v. Greenwood, 291 U.S. 584, 587, 54 S.Ct. 541, 78 L.Ed. 1004.
That history of course now recedes into darkness. In its place we have a new species of constitutional argument that becomes a game of gotcha. None of the statements by Roberts and Alito were made with the provisions of the health care bill in view, and the conflict in question can arise in one of two nonexclusive ways: Congress can claim new powers or the Court can try to contain older ones. There is no way to tell what is going on from Fallows' account.
It is a sorry day when indignation is a substitute for argument. If Fallows has a beef against decisions that he hates, he should state what they are, so that someone could try to answer them. But ad hominem arguments against sitting justices carry no weight against those of us who have never marched under the banner of judicial restraint in the first place. Living in a closed intellectual universe does no one any good. And in Fallows' case, it makes him ill-equipped to deal with any arguments to the contrary.
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Jun '10
Re: James Fallows Freaks Out
Cults of personality don't require lots of debate. They just need today's memo from the top. But, a free people, rightfully skeptical of centralized power, want vigorous debate every hour of every day.
Edited on June 25, 2012 at 8:32pmAug '10
Re: James Fallows Freaks Out
This is very sad, and emblematic of intellectual life in our time. I've read Fallows since the early '80's, when he was witty, funny, and full of insight. He went to live in Japan with his family at one point, when Japan looked as unstoppable and dangerous as China does now. He was the kind of pundit/reporter you could count on.
But now he's succumbed to delusion, self-righteousness, and false conscience, i.e., there's only one right 'collective' path for the health of the planet, its people, and the generations to come. America as we've known her does not fit into that future.
Mar '11
Re: James Fallows Freaks Out
Richard Epstein:
What is most surprising about his brief effort, and the somewhat longer effort on which it is based, is that it is devoid of argument.
It wouldn't be surprising to someone who has read Jonah Goldberg's "Tyranny of Cliches". Par for the course, rather.
Mar '11
Re: James Fallows Freaks Out
This guy is exhibit A of why MSM reporters and opinion writers should receive no special deference or respect. They're not any smarter or wiser or more moral than the rest of us. Sometimes, they're just bat-dung loony. Like Fallows.
Jun '12
Re: James Fallows Freaks Out
David Williamson
Richard Epstein:
What is most surprising about his brief effort, and the somewhat longer effort on which it is based, is that it is devoid of argument.
It wouldn't be surprising to someone who has read Jonah Goldberg's "Tyranny of Cliches". Par for the course, rather. · 1 minute ago
I have, and I concur. Par for the course.
May '10
Re: James Fallows Freaks Out
If the SCOTUS decision goes the way we hope, it will have defeated the Democratic dream that's been around since FDR and Truman. A loss of that magnitude is not about to generate rational discourse.
Expect a lot of, "OK Repugnantcans! Now how are you going to solve this problem?!?" We will then calmly explain tort reform and markets to them and they will continue to freak out. "Markets aren't fair, man!"
You can have a perception of fairness or you can have liberty. And it always is, just a perception. There will always be those with access to services that others do not. It's just that they replace the privileges of a monied elite with the privileges of a political elite. That's only "fair" because it benefits them.
Jun '12
Re: James Fallows Freaks Out
Thank you for covering this. I was especially disturbed at his conclusion-leaping from a poll of 21 con law professors, many of whom were (admittedly) basing their reactions from the ACA oral arguments
Apr '11
Re: James Fallows Freaks Out
I like, River, have read Fallows over many years, having been a Atlantic subscriber off and on since the mid 1980s.
Lately Fallow's works seems to come from a pre-set point of view and he goes out to discover the facts to fit them. His China articles, while interesting, were very much in the vein of an unstoppable commercial China and a relatively benign military / political China. Both view IMHO 180 degrees wrong.
So after many years of listening too admiring fans, he now thinks his opinions are what matter, not organizing thoughts and winning an argument.
Edited on June 25, 2012 at 9:18pmMar '11
Re: James Fallows Freaks Out
I'd argue that it goes back farther, to Woodrow Wilson, with possible roots in Lincoln.
Jul '10
Re: James Fallows Freaks Out
Umm. With no new information Fallows manufactured a crisis to stir controversy, met his deadline, and got his magazine mentioned in classic all publicity is good publicity form. I am cheered, as usual, with Dr. Epstein's candid and unsparing assessment of the result.
Feb '11
Re: James Fallows Freaks Out
He's right for the wrong reasons:
Didn't have to go back to the New Deal for these.
Jan '11
Re: James Fallows Freaks Out
If only we had some ... deliberative body ... where the nation could hash out its arguments publicly.
Congress was designed to be the place where we hashed out arguments. But they've abandoned that role. I think it's pure cowardice. Senators don't have debates. Well, Democrat senators go on CNN, MSNBC, ABC, CBS, and NBC to make their case, and Republicans go on Fox, but we can't call that "debate." Instead of facing each other, they can each flee to Rachel Maddow or Sean Hannity to find an echo.
We have no place where each side is compelled to address the concerns of the other side. I think we need that outlet. Otherwise, we're all likely to retain and nurture whatever nutty ideas (or emotional baggage) that builds up.
On Thursday, we're going to have the 2012 Law Championship Final ... otherwise known as the Supreme Court ruling on ObamaCare. It has become a championship just like March Madness or the Super Bowl, filled with the same suspense and drama.
Meanwhile the Senate hasn't passed a budget (used to be a championship by itself) in years.
They don't even bother to play anymore.
May '10
Re: James Fallows Freaks Out
Fallows thinks it's unfair, the way the justices have been chosen. He conveniently overlooks that GOP presidents are routinely disappointed by the way their appointees vote; Democratic presidents, hardly ever.
Mar '11
Re: James Fallows Freaks Out
No kidding. Name the last Democrat-appointed justice that went conservative. Offhand, I can't think of one in my lifetime. GOP-appointed justices have regularly gone left.
Apr '12
Re: James Fallows Freaks Out
Leftists are known for their preference of deep- endance.
Going off the deep end dancing & dependence.
Mar '12
Re: James Fallows Freaks Out
President and members of his party which control Congress introduce legislation to add enough seats to SCOTUS to assure President's appointees will have a majority, forcing sitting justices to preserve the institution with a "switch in time to save nine": merely the evolving Constitution.
SCOTUS votes to define an outward limit to the Commerce Clause powers: its a Coup!
As Lenin said, all history, morality and politics comes down to two words: Who, Whom. Fallows, like so many others who seemed reasonable, thoughtful journalists 20 years ago, shows himself as a hard-left Alinskyite, when push comes to shove. "Everything is revealed."