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Morning Jay: The Case for John Roberts

6:00 AM, Jun 29, 2012 • By JAY COST
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I think conservatives can deal with the policy problems of Obamacare much more easily than the constitutional innovations the president was attempting to sneak past us. After all, a long-term goal of the liberal agenda is to abolish limited government altogether. Liberals do not like enumerated powers; they do not like federalism; they do not like anything that might keep them from enacting their view of the good life. They have wanted to be rid of these "antiquated notions" for generations, and have had great success in expanding the power of the federal government over the states and individuals.

Conservatives, on the other hand, have been less aggressive -- and much less successful -- in pushing through structural changes to reassert the principles of limited government. The result of this lopsided battle? Just book a trip to Washington, and you will see: It is always one step forward, two steps back, despite the fact that conservatives regularly outpoll liberals at the ballot box.

The only real hope for lasting conservative victory is to eliminate these leftist innovations. Otherwise, conservatives can expect to do little more than slow down, not reverse, the growth of government. History teaches us that this is much easier said then done, and this is where we can appreciate the real good the chief justice has done the movement. By explicitly and unequivocally limiting the scope of the Commerce Clause as well as the feds’ ability to coerce the states, he has done major damage to the century-long leftist project to do away with constitutionally limited government.

Not only that, Roberts has forced the advocates of big government to grin and bear it! He gave Obama and the liberals a nominal victory while undercutting their long-term agenda, which reminds me of Marbury v. Madison. Yes, Chief Justice John Marshall sided with President Thomas Jefferson on the narrow specifics of that case, but he also dealt the Jeffersonian view of the Court a fatal blow. And more importantly, Marshall’s political craftiness set the stage for further Federalist victories, despite the political power of the Jeffersonians at the ballot box. Without Marbury v. Madison, there would have been no McCullough v. Maryland, no Fletcher v. Peck, no Gibbons v. Ogden. (See these persuasive arguments from Sean Trende and Adam White.)

Roberts has perhaps accomplished something similar here. This country is hopelessly split along ideological lines, and it seems impossible for either side to gain any lasting advantage over the other. But maybe Roberts has managed to do precisely that. By nominally endorsing an overwhelmingly unpopular bill that is in major trouble anyway, he has created the political space needed to strike directly at the heart of liberal legal theory without inflaming the Democrats.

This, by the way, is exactly what the Warren Court of the 1950s and 1960s failed to do. Insufficiently concerned about political fallout, the liberals on that court plunged ahead with leftist policymaking from the bench. As a consequence, conservatives grew acutely aware of the dangers inherent to liberal judicial activism, organized politically to fight back, and thus was ultimately born the Rehnquist Court, which rolled back many of the excesses of the Warren years.

But how do conservatives continue their judicial project without similarly inflamming the left and stalling their own agenda in its tracks? Well, just maybe Chief Justice John Roberts showed the way yesterday. It's all about taking opportunities as they present themselves, not over-reaching, and playing the long game. Just as Marshall advanced the Federalist agenda by forcing Jefferson to endorse a decision that was inimical to his long-term interests, maybe Roberts just did the same thing to Barack Obama and the liberal Democrats.

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