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What’s the Best Political Strategy on the Market?
Obergefell v. Hodges has stimulated a lot of thought on the Right about how to restore Constitutional government, but plenty of strategies had been considered before that. A lot of folks say that politics is downstream from culture, but that doesn’t mean these political strategies are a bad idea:
- Charles Murray proposed the Madison Fund to fight back against the bloated (yet still ballooning) regulatory state.
- Senator Ted Cruz suggested a Constitutional amendment to allow us to vote out lousy Supreme Court justices.
- Ricochet law star Richard Epstein prefers a Constitutional amendment imposing term-limits on the justices.
- Mark Levin has, for some time, promoted an Article V state convention to propose Republic-saving amendments to the Federal constitution (something we’ve discussed previously on Ricochet).
- David French laid out a strategy for state lawmakers to protect religious liberty.
- Finally, Ricochet contributor Adam Freedman has advocated Congressional action to strip federal courts of some of their jurisdiction, handing that power back to the states (discussed recently on Ricochet’s flagship podcast).
I happen to think we should go with quite a few of these strategies. But which is the best strategy?
I think having a new Constitutional Convention probably has the potential to do the most good.[1] To those who fear the risks, keep in mind that the Constitution requires “three fourths of the several States” to approve each amendment separately. With Republican control of record numbers of state governments, and only thirteen states needed to block a new amendment, it’s a strategy the Left would find hard to co-opt.
However, I think the Freedman strategy offers the biggest return on investment. The effort would be small – all it takes is a willing Congressional majority and a willing Republican president — and the returns are enormous:
- Congress reclaims from the courts some of its authority to legislate.
- The states reclaim power from the federal government.
- A lot of legal power falls back to the state supreme courts, where a number of Justices will be better Originalists than those on the federal Courts.
Let’s put that last point in perspective: This is our chance to do something that could be as effective as cloning Thomas to replace Ginsburg!
Ok, Ricocheti: I’m sold on this strategy and I’m trying to put together a few plans to do what I can on behalf of it. Please try to convince me otherwise if you disagree!
If I don’t get convinced otherwise, I plan for later posts in this three-part series to discuss the contents of jurisdiction-stripping bills and at least one strategy for pushing this option at the state, Congressional, and federal levels.
Published in General
1. I think Murray’s strategy is probably the second-best measured by the return-on-investment criterion. And, in another metric, it wins by a cool factor of several lightsabers.[2]
2. Because lightsabers are made of pure cool.
Finally, someone wants to do something instead of just talk!
I lean more towards the Murray plan because the administrative state is the greatest threat to liberty. If you’ve never read it, I highly recommend Kevin Williamson’s Welcome to the Machine for one of the best explanations of why the administrative state is so dangerous. We can, through sheer force of will, remove legislators and install new ones who will remove burdensome laws (in theory at least) — and even possibly get Freedman’s deal as a bonus — but the entity that acts in reality as “the state” and constitutes the “swarms of Officers [sent] to harrass our people, and eat out their substance” is the leviathan on autopilot targeted by Murray’s Madison Fund.
All that said, this is America where we keep our options open. Why not a whole bunch of those ideas working in concert?
Hear, hear!
I can’t replicate the helpfulness of the rich guy who promised Murray $10 million. But if someone gives me a safe URL for donating to the Madison fund, I can join a million others in donating $10–while simultaneously doing what little I can think of to support the jurisdiction-stripping strategy.
I really think the jurisdiction-stripping strategy should be as common a topic in Republican campaigns and platforms as national debt and immigration.
One nice thing about the Madison Fund, of course, is that it requires no reliance at all on the GOP–to whom I am loyal on the day of a general election, but from whom I demand loyalty to Conservatism on all other days, not always getting it.
With all due humility, I have been saying for a number of years, that a POTUS merely has to refuse to hire anyone new in the administrative state. During the 8 years of a Presidency the Federal government could be reduced by 25%. through natural attrition. I believe that Carly Fiorina must have overheard me, because that is exactly what she said she would do. Go CARLY!! … a woman who knows how to fire people.
My fear in this is leaving too much to be decided by administrative law judges. When the legislative, executive, and judicial authority gets vested in the one place we’ve achieved tyranny.
Excellent!
Good for you. And good for Carly!
And that strategy might have an even better return on investment than Freedman’s!
I think that Newt was the first to suggest jurisdiction stripping.
I vote for that because it unsettles the stability of the courts. The courts need something like this to get them to be responsive to instead of disdainful of the American electorate.
Well, this strategy shifts power away from federal Courts and towards the States. It doesn’t, as far as I can see, affect the problem of explosive administrative law.
Congress or a feisty Republican President could help with that. It should, like these others, be a big Republican issue. In the meantime: Madison Fund!
Right on. They can’t say they weren’t warned (by Scalia’s last paragraph).
What I like about C. Murray’s Madison Fund concept is that operates outside of the governmental structure; does not require a vote, or bill, or rewrite of law.
As I understand it, it is kind of voluntarily and privately funded insurance policy for the purpose of suing administrative overreach. It directly attacks the administrative state, on the principle of overwhelming its ability to effectively tyranize us by tying administrative agencies down in the courts. It is a kind of free market, reverse Cloward & Piven technique (albeit with individual liberty and limited goverment as it’s driving principle vs. Marxist totalitarianism).
To Augustine’s question, because the Madison Fund acts in concert with any of the other propositions and can be initiated privately, it may not be the best of the policies, but could get an earlier and cleaner start. I particularly like the revolutionary aspect of it. It actually sounds well, like something a bunch of Americans would do.
CDOR,
Like.
Madison Fund/Murray plan has the most appeal/likelihood of success. Our faithful judges can use their opinions in those cases to teach the principles that our legislators have foot-in-mouth syndrome in explaining.
However, still all of these maneuvers are procedural. How about we engage in some Lochner-style substantive due process from the right? Getting rid of that bugaboo will be the first step in restoring the natural liberties we’ve always cherished.
Yesterday, on my iPhone, I watched William F. Buckley, Jr.’s 1990 Firing Line interview with Ronald Reagan. (In case you’re not aware, Amazon has many Firing Line episodes available for viewing, and if you have Amazon Prime, not only can you view them for free, you can now download them to your device.)
Among many other topics, Bill and Ron discussed abolishing gerrymandering and establishing the line-item veto. I’m amazed that we haven’t yet achieved those two goals, either of which would enhance our democracy greatly.
I’ll strenuously lobby for, and add to your list, what Randy Barnett and Josh Blackman propose in The Weekly Standard.
Gerrymandering is a state level problem, not federal. It’s yet more proof that local government ain’t so hot either.
Aug,
I have a personal favorite. I think there should be an amendment to the Constitution that allows a Congressional Override for all Supreme Court decisions. It would work like this. All Supreme Court decisions would be required to enter at least one minority opinion (I think this exists anyway). Any minority opinion with at least two Justices signing on would be eligible. Congress simply passes a Bill revoking the majority opinion and establishing the eligible minority opinion as the Court’s ruling. This would be done by a super majority of 60 votes in both houses of Congress.
If the Court gets too far out of line this would kick it back to being reasonable very quickly. Electing Justices or Impeaching them is a slow imprecise mess. There is no guarantee of relief from a particularly egregious ruling. My solution allows an avenue of redress from each ruling while maintaining a reasonable expectation of stability.
Regards,
Jim
We can start by accepting the idea that when we affix to marriage a bunch of governmental articulations such as tax policy, insurances, pensions, etc., which were not traditionally there, the 14th Amendment is going to require us to expand the definition of marriage to gays.
Stated more simply, it’s time to sleep in the bed we made.
To make any change to jurisdiction requires 60 seats in the Senate and control of the House and the White House. Or, am I wrong?
Also, nipping at Federal jurisdiction is a great idea. But if you gain the WH, 60 votes in the Senate and the House, why not go big? Convert massive amounts of the social welfare state to block grants administered by the states and cut up the mandates to just a few. Social security can even be transferred back to the states by means of the Federal government taxing and handing the money to states to distribute with certain restrictions.
We need to think bigger and push our candidates who can win in 2016, hold a few vulnerable Senate seats and mount a full court press for 2018 to back the diffusion of power back to the people. Power to the people by way of the states.
Our mistake under Reagan was we kept thinking Washington could be reformed – it cannot. But, we can trim its sails and turn it into a pass-through finance company. Then, we can focus on controlling the growth of the block grants. NY can spend more on SCHIP, but it has to pay for it. And, NY also can go bankrupt if it spends too much. The Federal government has no restraints. So get the hard decisions of who’s grandmother gets pushed over the cliff back to the state capitals who have to operate with fiscal discipline and gradually constrain the growth of block grants to less than GDP growth. With all the competition between Texas and California and the shouting about who is spending too much, the heat can be removed from the big “F.”
Institutional change. This is our only chance.
Over the past century, the voters have expressed a clear and continual preference for a gradual transformation of the American system of government.
The system being slowly and systematically replaced in this revolution is a federal constitutional republic based on
The new system is the precise opposite: a centralized, progressivist, secularist, populist authoritarian state, based on a radical secular humanist religion.
This popular will has been expressed in their free choice of the Legislature, President, and (indirectly) Judiciary. If they ever wanted anything else, they could have chosen it at any time.
It is illogical to think that any democratically supported political change would reverse this tendency, absent a reversal in the expressed will of the people.
Change would require a revival of faith in the American experiment, in the possibility and desirability of self-government.
To direct the finite energies of the opponents of this slow revolution toward projects which are doomed from the start by their absurdity only promotes the revolution.
Self-government requires an educated population in the fullest sense of the word “educated”. What then will be the results of continuing, rather than actively reversing, the co-opting of the institutions by which the love of God, knowledge, the capacity for critical thinking, and our fundamental values are transmitted to the young? The answer is obvious.
Not prepared quite yet to sit back and wait for the deluge. But, good points nonetheless Mr. Camp.
The American public is not completely lost. And leadership directed on the right things can shift accountabilities enough to make some difference in course. State experimentation is a huge check and balance on collective vs. individual approach. It brings in focus why New York or California are sinking under the weight of the welfare state and Texas and much of the southeast are not.
Please don’t hear what I didn’t say.
I didn’t propose that Liberals sit back. I propose that we fight back. What I proposed that we stop doing is dissipating our strength on procedural follies and self-indulgence. We Americans have a responsibility to begin work on a long-term project to restore our nation. We are deceived if we think that the enemies of democracy started their attack last month or last year, by selecting some presidential candidate.
They started one hundred years ago and more by attacking us at our foundations, by slowly and patiently killing the roots of the plant of democracy. They now nearly own our educational institutions: our churches and synagogues, our universities, our public schools, and our news, cultural, and entertainment media. They almost exclusively own the cultural soul of America because they have worked patiently for a century to take it from us. We don’t have Trump v. Clinton because they have engineered some brilliant short-term marketing and fund-raising campaigns, which we can counter by hiring the best social media consultants. We have Trump v. Clinton because we no longer are capable of understanding that that we own ourselves or can be trusted with that responsibility.
I could get behind this with Ted Cruz as VP. This reduction by attrition would allow the institutions to become adjusted to reductions and Cruz has deep understanding of how Federalism is supposed to work so a restoration of the Constitution as it should always have worked can begin. State governors and legislatures will be prodded to be very active in this process and reverse their half-century habit of deferring anything that requires revenue to Washington so they can always tell their constituents that Washington taxes them, not the states. As the federal bureaucracy begins to strain and the attrition continues, functions can be eliminated or devolved to states. Many other favorable acts can be added into this scenario.
My thought is that these two candidates are not yet part of the ‘Ruling Class’ and would be willing to move against the establishment in both parties. To support them, much grassroots work will be needed within the states to elect the right legislators and governors.
Federalism, like every other institution of freedom and justice, is in retreat with the full support of the voters. But you are right that as long as the remnants of federalism survive they present a procedural ground for defense and even for counter-attack.
My point is that if we didn’t have a federal system by tradition, and Sen. Cruz were to propose it as a means of resisting the encroaching repression of the unlimited state, the amendment would be defeated today. Instead of new bills, new procedural initiatives, which will either be defeated or turned against us, we who believe in truth and justice and freedom and human dignity, in the traditional liberal values, need to employ whatever marshes and mountains are left to resist annihilation, and meanwhile rebuild the consensus for self-government and liberal values (locally someone has recently called them “virtuous conservatism”) through education of the future generations.
This may be true.
But isn’t it also true we cannot recapture education and faith institutions unless we have the political power to do so. Operating from the bottom to infiltrate and change the system is a defensive, retreating action that may not be able to overturn these institutions. The republic is on steroids – with more and more power held by agencies who can even prosecute, often judge, and punish. This is not traditional republican form. The bureaucracy substitutes for the general will of the citizenry.
Again, I am not sure the people themselves are so far gone they cannot look at their pocketbooks, the waste, and the self dealing and see it for what it is. The problem is it is concealed in massive institutions in the Federal government. People in Congress have little idea what they are voting on most of the time.
Transfer that back to the state, county and towns and government might be more accountable. Consolidated government is too large to govern with a democracy. But, a town meeting is democracy in action.
To transfer power back to the states, we need power at the top first to begin the process.
Right on!
Sounds good to me!
If Paulsen, Lawson, and the like are correct then I believe Congress already has this authority–to exercise when the Courts go against the Constitution.
Of course, it only works with a cooperative executive. And it works better when it’s explicitly written down.
And it works better when it’s not tied down only to federal Court unConstitutionality. For these reasons, I dig! But I suspect Congress can already do something like this already for certain egregious SCOTUS decisions.
Control of Congress and White House: Definitely, unless you have such control over Congress that you can override vetoes. A 60-vote requirement is not the case to my knowledge, but my knowledge is very limited. Freedman notes that “At the moment, such legislation would require a two-thirds majority to overcome President Obama’s inevitable veto,” but doesn’t mention a 60-seat Senate requirement.
I like this too! (I believe Freedman advocates this in his book.)
Indeed.
Well said!
I grant that the people chose the way things are, or at least have consented to it. The best I can say here is that it’s right to keep trying, doomed or otherwise. (But we probably aren’t quite doomed–not yet.)
Indeed. There’s a lot of culture that needs fixing, the messing up of which by the government also needs stopping.
Well said! This is one reason my first post around here was “Bring Back the Trivium!”