A Crisis Republicans Should Not Waste
An Austen Chamberlain moment for the Democrats.
Apr 19, 2010, Vol. 15, No. 29 • By HADLEY ARKES
This move to enlarge the powers of the judges was nothing less than revolutionary, for it struck at the deepest principle planted in the American regime from the time of the Revolution: that the safety of the American people should not be left in the hands of officials—whether in the British Parliament or unelected courts—who bear no direct responsibility for the lives that are at stake. And yet, in the law schools and the Democratic party there is not the slightest hesitation to extend the power of judges in this way.
There has been a comparable determination to extend the control of the courts in putting over the parts of the liberal agenda that Democrats will not campaign for in public. Bill Clinton and Barack Obama as they ran for office would not discuss issues like gays in the military or same-sex marriage, but they happily put in place judges who in turn would override voters and constitutions in the states to install same-sex marriage. For a while, in the mid 1990s, there seemed to be a concert forming of state and federal courts to “nationalize” same-sex marriage. But the Republican Congress passed in 1996 the Defense of Marriage Act. It is one of the barriers standing in the way of same-sex marriage spreading from one state to all the others, and so it is no wonder that the desire to repeal that law has taken hold among the Democrats.
On the matter of abortion, it required a Republican Congress to pass the bill on partial-birth abortion—and to pass it twice, for it was blocked the first time with a veto by Bill Clinton. The vote was lopsided between the parties. In the House in 1995, the Republicans voted overwhelmingly for the ban, 215-15. The Democrats resisted a ban, 123-73. In the Senate, Republicans voted for the bill, 45-8; the Democrats voted against, 36-9. There were enough Democrats then to sustain a veto by Bill Clinton. It required a Republican president to sign that bill when it was passed again in 2003. When the bill passed the House, the Republicans voted for it, 218-4. The Democrats voted against it, 137-63.
It takes a special obtuseness, then, not to recognize what has been plain now for many years: The Republicans are in fact the conservative and pro-life party in our politics. Where else, after all, would we find the people who defend traditional marriage, fend off the regulations and taxes that discourage the creation of jobs, seek market solutions first to social problems, and let people keep more of what they earn? Where is one more likely to find the people who do not think that American interests abroad, or the American idea abroad, are tainted and suspect? For that matter, where is one more likely to find the people actually willing to take up arms and risk their lives in defense of the country? It is curious to claim that the Republican party has “lost its way” when the people who share these convictions have no trouble in finding their way to the party that provides, these days, their natural home.
It is part of the alchemy of political parties that they form the principles that hold them together as they reconcile the interests of the groups that are drawn to them in coalition. When there is a transfer of power then from one party to another, the shift is not random but patterned and principled. It’s the shift from Michael Mukasey to Eric Holder, from Samuel Alito to Sonia Sotomayor. At a certain point this sharp difference becomes clear to the public in a manner that cannot be missed. And when it comes along with the sense that something critical hangs now on the choice, we should not be astonished if the people, in November, take the levers within their reach and do something astounding.
Hadley Arkes is the Edward N. Ney Professor of American Institutions at Amherst College and a senior fellow at the Ethics and Public Policy Center.
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