The points of caution have already been noted by conservative commentators: The public anger over the passage of Obamacare may well subside by November, especially if the economy continues its healing. And so the Democrats, having desperately gone for broke, may be delivered from their danger and find themselves surviving with wreckage vast, yet not terminal.
But the tawdriness that attended the ramming through of Obamacare has had a mind-clearing effect for the public. Academics might find their surety in theories ever more inventive, but ordinary people, anchored in the world, trust in common sense: They cannot believe that their medical care will really be better when managed in the style of the Post Office or the IRS. They cannot believe that a new entitlement will lower costs and not raise taxes, that it will not lead to price-controls and rationing.
My own reckoning is that the passions of this season will endure: that the Hand of Justice will pass over the house of Democrats and leave very few standing. Even Democrats who voted against Obamacare will not be spared, for the public seems to have been brought to the threshold of a judgment so binary that the choices before us now require the sweeping away of any Democrat. A vote for any Democratic candidate is a vote to keep in power Pelosi and Reid and the rest of the people who imposed this scheme on us.
The current conflict may have brought us to one of those rare crises that produces a recasting, or realignment, of the political parties. At a similar moment, Margaret Thatcher destroyed Britain’s Labour party as a socialist entity, forcing it to abandon its schemes, long cherished, for nationalizing major parts of the economy. And so it should not be beyond imagining that today a conservative leadership, with wit and nerve, could bring an end to the Democratic party as it was recast in the days of the Vietnam war and George McGovern. The election of 2008 swept the American left into power with swollen majorities. The Democratic leadership was emboldened enough to offer an unalloyed version of its politics: antiwar, suspicious of American interests abroad, weak on protecting the lives of Americans, antireligious, pro-abortion, pro-racial preferences, beholden to the whims of the plaintiff bar and the teachers’ unions, and ever inclined to keep extending the reach of governmental controls and reducing the freedom of ordinary people to make their livings. These things have been revealed so clearly that it is not unthinkable that the public might be moved to do something decisive in November.
There’s a suggestive analogy to our current situation: the crisis in British politics in 1923-24.
There had been a bruising general election in 1922. The Conservatives had won 344 seats, giving them more than the Liberal and Labour parties combined, but Prime Minister Stanley Baldwin sought a fresh mandate the next year to deal with the problem of unemployment by a return of protectionism. This policy brought the Liberal party to close ranks in support of free trade. The Liberal share of the House of Commons increased in the 1923 election from 62 to 158, and Labour surged too, from 142 to 191. The Conservatives fell to 258, still the dominant party, but no longer strong enough to form a government on their own.
There had not yet been in Britain a Labour government. The dread of bringing forth the first one was an incentive to form a coalition between the “constitutional parties”—i.e., the parties not threatening to change radically the powers and reach of the state. This view was held by the Conservative leadership, including the Tory statesman Austen Chamberlain—older half-brother of Neville Chamberlain. Some of them were actually willing to have the Conservatives take second place and support a Liberal government with H.H. Asquith returning as prime minister. But the Liberal recoil from the protectionism of the Conservatives was so pronounced that Asquith went the other way. The Liberals would back Labour and in that way install the first socialist government in Britain.
Austen Chamberlain saw with an uncommon clarity what this decision meant. Asquith, he said, “has taken his choice, and he has by that choice constituted his own immortality.” For “he will go down to history as the last Prime Minister of a Liberal Administration. He has sung the swan song of the Liberal Party”:
When next the country is called upon for a decision, if it wants a Socialist Government it will vote for a Socialist; if it does not want a Socialist Government it will vote for a [Conservative].
It took but a short while to learn just how prophetic Chamberlain had been. The tensions within the new government forced a new election within a year. For the voters, the maze of issues faded against what Chamberlain had rightly seen as the momentous fact overriding everything else: socialism or not. With this stark choice before the public, the Conservatives surged to 412 seats, regaining their dominance. Labour fell to 151, but the Liberals sunk to the terminal condition of 40 seats. They had lost their place as one of the two major players among the parties in British politics. To this date there has not been another Liberal prime minister.
We could be at the threshold of a similar moment right now if the conservative leadership holds fast to its focus on repealing and replacing Obamacare. As Burke warned, refined policy is ever the parent of confusion. This is no time to be sorting through the provisions of medical care to see which ones might be salvaged. There will be time to piece things together later by building anew. The worst thing is to encourage people to get lost in the labyrinth of strands making up that bill of 2,000 pages. For the strands of complication recede when set against the takeover of a vast system that cannot possibly be grasped and administered under a system of command and control. The unforeseen consequences are already starting to dangle forth, with the changes in the liabilities of corporations. More of them will be coming, with more unsettling surprises, as the year proceeds. Let them come.
For most of the public, this has been a rare moment in which people can see what is plainly before them. Yet some conservative commentators continue to harp about how “Republicans lost their way” when they showed themselves willing to spend lavishly in recent sessions of Congress. But Republicans found themselves working within the framework that Lyndon Johnson had helped to build, where there is no longer any sense of constitutional limits on the projects that the federal government can support. If the government is building housing in cities, funding clinics for birth control, and projects in the arts, what are Republican congressmen to do? Leave these projects to sustain and enrich only the liberals who invented them and who formed their main constituencies? Are conservatives supposed to be so uniformly high-minded, so detached from self-interest, that their supporters cannot be encouraged by the same patronage that Democrats have found enduringly helpful?
But put aside that record on spending, as grievous as it was at times. Was that really the only issue of moral consequence that was before the Congress when the Republicans were in power there?
Republicans were in control of the Congress when the Supreme Court made audacious—even revolutionary—moves to extend the power of judges to review the actions of the military on the battlefield. It is hardly conceivable that a Democratic Congress would have moved as quickly and decisively as the late Republican Congress to counter the courts. In Rasul v. Bush in 2004, the Supreme Court held that the basic statutory grant of habeas corpus would now be available to detainees held at Guantánamo Bay. The next year the Republican Congress acted to alter the statute and remove the jurisdiction for federal judges that the Court had proclaimed. Congress offered instead a limited review in the D.C. Circuit. In 2006, in Hamdan v. Rumsfeld, the Court invalidated the military commissions set up by President Bush to prosecute terrorists. But the Republican Congress swiftly enacted the Military Commissions Act. Then Congress reenacted and broadened the preclusion of habeas corpus. The Republicans voted for that measure, 219-7. The Democrats voted against it, 160-34.
Two years later the Court overturned the key parts of these legislative acts. The habeas jurisdiction would indeed be extended, and it would cover even the prisoners held outside the United States in Guantánamo. But now there was no longer a Republican Congress to challenge the Court. And without congressional support, the Bush administration lost its resolve to do what Attorney General Michael Mukasey urged be done: challenge Congress to provide guidelines and rules, rather than letting federal judges, armed with new power, make up the rules as they go along.
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.