Politics, et Cetera
A publication from The Political Forum, LLC
Tuesday, July 28, 2015
They Said It:
Since the defeat of communism, some have spoken of the end of history. By that they mean, inter alia, that the great controversies about the best form of governance are over: there is no alternative to democracy. Perhaps that, too, is wishful thinking and self-deception. Perhaps the United States, for so long the primary bearer of the democratic idea, has itself betrayed that idea and become something else. If so, the chief evidence of that betrayal is the judicial usurpation of politics.
Politics, Aristotle teaches, is free persons deliberating the question, How ought we to order our life together? Democratic politics means that “the people” deliberate and decide that question. In the American constitutional order the people do that through debate, elections, and representative political institutions. But is that true today? Has it been true for, say, the last fifty years? Is it not in fact the judiciary that deliberates and answers the really important questions entailed in the question, How ought we to order our life together? Again and again, questions that are properly political are legalized, and even speciously constitutionalized.
Fr. Richard John Neuhaus, Introduction to “The End of Democracy? The Judicial Usurpation of Democracy,” First Things, November, 1996.
HILLARY, ABORTION, AND THE INTERGENERATIONAL COVENANT.
We don’t need to tell you that Hillary Clinton has put the Democratic Party in something of a tough spot these days. She is proving – as she proved before – that she is a terrible candidate with terrible political instincts. Worst of all, she is doing little this summer other than remind voters why they preferred an inexperienced and largely unknown first-term Senator to her last time around. While she shares her husband’s “questionable” moral sense, she does not share his charisma or his ability to make her ethical lapses seem inconsequential. She is dishonest, prickly, reactionary, and just plain nasty. And voters don’t like her.
At the same time, the Democratic Party really has no one else. Bernie Sanders is a socialist – an actual, bona fide, self-described socialist. And he would probably do as well in a general election as any admitted socialist would, which is to say that he would probably won’t beat McGovern’s and Mondale’s records for electoral futility, but he might come close. The two other announced candidates – Tweedle Someonevotershaveneverheardof and Tweedle Someoneelsevotershaveneverheardof – are unlikely to offer much primary competition. And beyond that, there’s . . . well . . . nobody.
Lately, as Hillary’s polls numbers have fallen, there’s been some talk about the Vice President, Joe Biden, getting in the race. We have to admit that from our personal/professional perspective, we would LOVE for Biden to run. But we don’t think that many of the voters agree with us. We think a Biden candidacy and a Biden presidency would be incredibly fun and entertaining, given that the guy is something of a likable cornball. But then, we’re not exactly Democratic voters, and so we understand that most of those voters might rightly fear him, for precisely the same reason. Likable Cornballs are fun for analysts who might otherwise get bored, but they’re not so much fun for people who want the nation to function better, or for partisans who want nothing more than to beat the other party, regardless of what it takes.
This last group – the diehard partisans – are the ones that interest us the most today. The Democratic Party’s revolution against its establishment is tangible, but nowhere nearly as advanced as the Republicans’. Given this, and given the dearth of other realistic candidates, we expect that Hillary Clinton will not only win her party’s nomination, regardless of her weaknesses, but will damage her party tremendously in the process. The diehards – the establishment and its minions – will vote for Hillary no matter what she does. Dead girl, live boy; dead boy, live girl; whatever. The diehards are never, ever going to vote for anyone but Hillary. And we think that this says something important about the state of the nation’s politics, about the roots of our current partisan hostility, and about the future of the Democratic Party.
Now, we, like everyone else, have noticed that even Hillary seems to question her own electability these days. And we, like everyone else, have noticed that the Obama administration – in the guise of the Justice Department – could make things very difficult for its former Secretary of State, if it so chooses. Nevertheless, at this point, we think that Hillary will still win the party’s nomination. It’s not like any of these revelations are particularly shocking or new. The American people have known that Hillary is a dishonest, dissembling hack for the better part of a quarter-century now. And yet, she’s still the frontrunner. Given her name-recognition, her status as an elder of the party, her campaign organization, and her husband, she is probably not going to be beaten by any of her conspicuously inadequate challengers. No matter what she does, the party is behind her. Or, as Reason’s Matt Welch put it late last week, “Admit it Dems: Hillary Could Strangle a Puppy on Live TV, and You’d Still Back Her.” Welch continued:
A quick recap: Hillary Clinton, as Secretary of State, violated guidelines from the National Archives and her own State Department by using her own private email server for professional correspondence, and then destroying whatever messages she deemed destructible.
At first Clinton claimed that she needed a single non-governmental email account for “convenience,” because she only had one phone. That claim turned out to be provably false. Next, she claimed that it didn’t matter much, because “The vast majority of my work emails went to government employees at their government addresses, which meant they were captured and preserved immediately on the system at the State Department.” The latter half of that claim turned out to be provably false, too. She further insisted that none of the emails contained classified information, a claim that many people with intimate knowledge of such things—such as a former senior State Department official—described with phrases like “hard to imagine.” And her assertion in a CNN interview this month that she went “above and beyond” the email disclosure requirements was—wait for it—false.
In sum, the Democratic Party’s 2016 presidential frontrunner brazenly violated government transparency policy, made a mockery of the Freedom of Information Act, placed her sensitive communications above the law, and then just lied about it, again and again. Now comes word that, unsurprisingly, two inspectors general are recommending that the Department of Justice open a criminal inquiry into the matter. One of their findings was that the private server, contrary to Clinton’s repeated claims, contained “hundreds of potentially classified emails.”*
So how much do Democrats value basic transparency, accountability, and honesty in their presidential candidates? Not bloody much, if you go by the handy polls over at RealClearPolitics. The six national polls taken this January and February, before the email scandal first broke, averaged out to a whopping 43 percentage-point lead for Hillary Clinton. How about the next six, in March and April? Plus 50. The 11 polls in May and June, when Berniementum first started sweeping the country, came in at +48, and the most recent five in July stand at +41.
Barring some unforeseen catastrophe, then, Hillary is, more or less, still the “inevitable” Democratic nominee. The question is “why?”
Obviously, the easy answer is the one we noted above – because there is nobody else. But that’s superficial. Moreover, there’s a reason that there’s nobody else. And that reason is because the Democratic establishment thinks that Hillary is not only inevitable, but indispensable as well. They NEED to win in November 2016. And they need HER to win. To them, it’s not a mere matter of politics, but of the future of the country. In their estimation, a Republican victory would mean far more than a few laws and regulations with which they disagree. It would, rather, mean an end to liberty and freedom as they know it.
Let us explain.
Nearly two decades ago, when Hillary’s more lascivious half was in trouble for such anti-feminist behavior as sexual harassment of interns less than half his age, the so-called feminists actually defended him. Feminist icon Gloria Steinem took the pages of the New York Times to declare that, in Clinton’s case at least, there was now a “one-grope” rule. Bill was a good man, she declared, and he shouldn’t be punished just because he had an affair with an intern or tried to fondle the recently windowed wife of a friend or . . . whatever. To the best of our knowledge Bill’s case was the only one in history where the one-grope rule was enforced, where feminists swallowed their pride and decided that maybe they were OK with a little “hostile environment.” Of course, the reason they did so was patently obvious.
As we noted at the time and on a handful of occasions since, the feminists and indeed the entire Democratic Party decided that they had to support Bill and to ensure that he survived the impeachment fight for one reason and one reason alone: abortion. Whatever else Bill did – start a handful of wars in the Balkans, blow up aspirin factories in Sudan, reform welfare – they had to forgive him and move on, because abortion mattered that much. Again, as we noted then and on a handful of occasions since, Time magazine’s political reporter Nina Burleigh became an emblem of the Left’s support for Bill and the voice of a generation of young, leftish women when she declared that she would “happily give him [Clinton] [oral sex] just to thank him for keeping abortion legal.”
Now, we don’t have any idea if Burleigh would offer the same to Hillary for “keeping abortion legal,” but we do know that the support that Hillary retains among the Democratic establishment, despite her manifest shortcomings, is, in large part the result of her position on abortion. Like Bill before her, Hillary is seen as the “firewall,” if you will, the only thing that stands between women and the savagery of the Republican Party.
Of course, both history and logic would suggest to any rational person that Hillary is nothing of the sort, just as Bill was nothing of the sort. But then, the politics surrounding this issue is anything but rational.
Bill Clinton was succeeded in the White House by George W. Bush, who is not just a Republican, but an Evangelical Republican, a religious man who believes in the power of faith to change lives. And for (most of) the first six years of his presidency, George W. Bush had a wholly Republican Congress, which is to say a Congress in which the majority party has opposition to abortion in its party platform. Yet abortion is still legal.
As any schoolboy – but apparently not Nina Burleigh – knows, abortion is legal in this country because of Roe v. Wade, which is to say that no politician or group of politicians can make abortion illegal. As hard they might try, Republicans are, quite simply, incapable of overturning the results of Roe. The way that judicial review has evolved in this country, the Supreme Court’s position is final – unless or until it reverses itself. Abortion is not legal in this country because of a law or a set of regulations, but because it has been interpreted to be so under the auspices of the Constitution. Or as the majority put it in their Roe decision:
The Constitution does not explicitly mention any right of privacy. . . . T]he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
Needless to say, this is important.
The Supreme Court’s decision in Roe v. Wade had an immense and ongoing effect on American politics. The nature and the legitimacy of this effect has been the subject of much discussion and conjecture, particularly among conservatives, for at least the last quarter century. The most common argument made along these lines is that the Roe decision, essentially, killed American democracy. In his dissenting opinion, Justice Byron White called the Court’s action an “exercise of raw judicial power.” And in the years since, most conservative legal scholars have agreed wholeheartedly with Justice White and have come to term the decision a “judicial usurpation” of the people’s democratic inheritance. As the late, great Father Richard John Neuhaus explained in his book American Babylon, by usurping the people’s birthright, the Court radically changed the abortion equation – for the worse:
I believe it is fair to say that the most consequential political event of the past half-century in the United States was the Supreme Court’s Roe v. Wade and Doe v. Bolton decisions of January 1973. Numerous political analysts have described how those decisions have dramatically reconfigured the nation’s cultural and political life. And, of course, those decisions are intimately tied to many other hot-button issues in bioethics. As an act of “raw judicial power” (the words are those of Justice Byron White in his dissenting opinion), Roe and Doe removed a preeminently political, which is to say moral, question from public deliberation.
The abortion decisions were a profoundly antipolitical act and are accurately described as instances of the judicial usurpation of politics. By attempting to remove the question of the protection of unborn children from public debate, the Court turned it into something very much like the vortex of American politics.
Beginning in the 1960s, there was much agitation for what was called the “liberalization of abortion law.” The issue was vigorously disputed, and those on all sides of the question expressed their surprise, both delighted and outraged, when on January 22, 1973, the Supreme Court, in Roe and Doe, wiped off the books of all fifty states any and every protection of unborn human lives. Those who were delighted by the decisions, which at the time included all the elite institutions of the political class, declared that the Supreme Court had “settled” the abortion question. But, of course, it quickly became the most unsettled question in our public life.
This, we think, along with the fact that Pro-Lifers are, by their own definition, fighting to save human lives, explains why the Pro-Life side of the debate is so aggressive and so adamant about its beliefs. Judicial usurpation plus human lives makes for a very potent mix. This does, not, however, explain why the Pro-Choicers are equally aggressive and adamant, perhaps more so. They won. And in the decades since, they’ve had their views reinforced, most notably in 1992’s Planned Parenthood v. Casey. So why then are they agitated? Why then do they treat abortion as such a fundamentally important and regime-defining issue?
As best we can tell, the manner in which this case was decided has also affected the Pro-Choice side, but in an entirely different way. When the Court rewrote the abortion laws of the states by virtue of its conclusion that abortion was protected under the 9th and the 14th amendments, what it did was to create a constitutional right to abortion. The fundamental human rights traditionally associated with the Bill of Rights – speech, religion, bear arms, speedy trial, etc. – suddenly had a new and fully equal companion right, the right to an abortion. Indeed, some scholars, most notably Russell Hittinger, have argued that between Roe and Casey, the Supreme Court established a regime in which abortion is the preeminent and defining right in the constitutional order. Hittinger, who is William K. Warren Chair of Catholic Studies and a Research Professor of Law at the University of Tulsa, put it this way, nearly twenty years ago:
In Planned Parenthood v. Casey (1992), the Supreme Court made abortion the benchmark of its own legitimacy, and indeed the token of the American political covenant. To those who cannot agree with the proposition that individuals have a moral or constitutional right to kill the unborn, or that such a right defines the trans-generational covenant of the American political order, the Court urged acceptance out of respect for the rule of law. “If the Court’s legitimacy should be undermined,” the Court declared, “then so would the country be in its very ability to see itself through its constitutional ideals.”
What this means in the real world, then, is that those who define their politics in terms of “women’s issues” and the rights of women, see abortion not as a fundamental right, but as THE fundamental right, the one to which all other rights are subordinate.
When we started this piece, we thought that this would be the place in the narrative where we would try to make our point by comparing abortion to the First Amendment right to speech or the Second Amendment right to bear arms. Those who think that free speech or the right to bear arms are fundamental, defining rights are generally viewed as “zealots.” They will do anything, go anywhere, make any argument necessary to defend their fundamental right. And they will accept absolutely no compromise on the matter.
The comparison falls apart, unfortunately, because even the First and Second Amendment zealots tend to be LESS adamant in their dedication than the Pro-Choicers, who, as Hittinger points out, see abortion as the very foundation of the contemporary constitutional regime. You think Wayne LaPierre, head of thre NRA is a nut? He may be, but he’s got nothing on Cecile Richards, head honcho of Planned Parenthood. Heck, he’s not even in the same league.
For years, Hillary Clinton and her Pro-Choice pals insisted that they wanted abortion to be legal, safe, and rare. Unfortunately, it is only one of the three. And the reason for this is because the Pro-Choice side will broach no concession on the matter. This past weekend, the inimitable Mark Steyn noted that “America is, alas, the abortion mill of the western world,” which is to say that the United States stands alone among developed nations, alone among Western democracies as treating abortion as a fundamental and inalienable right. A 2013 piece by Emily Matchar, published by The Atlantic (and cited in these pages before) makes this point in graphic detail:
[R]ecently, I began wondering which countries have the most liberal abortion laws, and how lax these laws actually are. I assumed that Western Europe would be the land of abortion on demand, likely government-subsidized, and possibly with a free bag of condoms afterward. But as it turns out, abortion laws in Europe are both more restrictive and more complicated than that.
Waiting periods, decried by American pro-choicers as infantilizing and unreasonably burdensome, are common in Western Europe.
In Germany, women seeking first-trimester abortions are subject to a mandatory three-day waiting period and a counseling session. Abortions after the first 12 weeks of pregnancy are forbidden except in cases of grave threat to the mother’s physical or mental health. The Netherlands mandates a five-day waiting period between initial consultation and abortion; clinics must provide women with information about abortion alternatives. Abortion is then legal until viability (legally defined as 24 weeks, usually interpreted as 22 weeks). In Belgium, where abortion was illegal until 1990, there’s a six-day waiting period and the woman must claim to be in “a state of distress” before receiving a first-trimester abortion.
Many other Western European countries have what might seem like odd requirements and exceptions to their abortion laws.
In Finland (home of the now-famous Finnish baby boxes and other enviable government benefits), abortion is available up to 12 weeks of pregnancy, unless the woman is under 17 years old, in which case she may have an abortion until she’s 20 weeks pregnant. But even for early abortions, women must provide a “social reason” for seeking to terminate her pregnancy, such as poverty, extreme distress, or already having at least four children. While in practice most abortion requests are granted, it still forces women to prove to an authority the validity of their desire not to have a baby. In Denmark, abortion is available on demand up to 12 weeks of pregnancy. Afterward, exceptions are made for cases of rape, threats to the woman’s physical or mental health, risk of fetal defects, and — revealingly — in cases where the woman can demonstrate lack of financial resources to care for a child.
Israel (though not part of Europe, obviously) has similarly idiosyncratic requirements and restrictions. Though 93 percent of American Jews support abortion rights in all or most cases, and the Torah has little to say about abortion, the Jewish state of Israel has fairly heavy-handed abortion laws. Abortion is illegal for married women between ages 17 and 40, except in cases of rape, incest, fetal malformation, or risk to the mother’s physical or mental health. Women eligible for abortions (the unmarried ones, that is) must submit to ultrasounds, wade through rivers of paperwork, and plead their case to an expert.
Eastern Europe, a stronghold of liberal abortion laws under Communism, has become increasingly strict of late. Russia recently passed a law restricting abortion to the first 12 weeks of pregnancy, and Russian clinics are also now forced to give (medically dubious) warnings about the health risks of abortion, which supposedly include cancer and infertility. After the fall of the USSR, Poland enacted some of Europe’s strictest abortion laws, banning the procedure except in cases of rape, fetal malformation, or serious threats to the woman’s health. The Ukraine is currently threatening to follow suit.
Ms. Matchar goes on to speculate as to why this might be the case. “In America,” she writes, “abortion laws are about morality, while in Europe, they reflect national ideas of what constitutes the common good.” This is, to put it mildly, batty. It is also self-flattering wishful thinking. Put simply, Europe’s abortion laws are practical and in keeping with the wishes of the people. America’s laws are the opposite, extreme and in direct contravention of the will of the people. America’s laws are, rather, in keeping with a constitutional mandate and band of uber-zealots who defend that mandate with every fiber of their being, every political weapon they can, preventing any and all “erosion” of the fundamental right, even those meant to foster practicality and carefulness in the commission of an act meant to take a human life.
Hillary Clinton, of course, has built her entire political career on the notion that she is the strongest and most effective advocate possible for the rights of women. What this means in practical political terms is that she has made it clear not only that she herself is one of those who would defend the right to “choose” against any incursion, but that she will be the most sincere promoter of that right – and any affiliated rights – as President of the United States. And thus both she and the Democratic establishment see her as the ONLY choice for president, the only candidate with the capacity and the burning need to defend women against the inexorable onslaught by the unspeakably anti-woman GOP.
We’re not exactly in the business of giving advice to the Democratic Party, and nor is the Democratic Party in the business of heeding our instruction. Nevertheless, we think that all of this is a mistake for the Democrats. In the near term, we think that nominating Hillary is a dreadful misstep that will haunt the party for a long time. In the longer term, we think that this focus on abortion as the fundamental component of the constitutional order will lead the party and perhaps the country to ruin.
In 2008 and especially 2012, the Democrat won the presidency largely on their appeal to minorities and to women, single women in particular, who were swayed by their arguments about the GOP’s hostility to “women’s rights.”
As we saw in 2014, though, the GOP is getting better at countering the “war on women” rhetoric and turning it around on the Democrats. In the wake of the Planned Parenthood videos showing the organization’s executives haggling over the prices for which they will sell human body parts, Republican candidates are already growing more aggressive in their efforts to paint Planned Parenthood and the Pro-Choice movement more broadly as the real extremists in the debate. And much to the Pro-Choicers’ dismay, the GOP actually has the public on its side. The public, for the most part, tends to favor common sense restrictions on abortion. This means that the public not only disagrees, in principle, with Pro-Choice extremism, it also fails to share the Pro-Choice side’s view of abortion as a fundamental constitutional right, inalienable and unalterable by their representatives. This suggests that over the long-term, the Pro-Choice side will either have to get better at making its case – which seems unlikely – or it will lose the fight to maintain the abortion-on-demand regime.
In the meantime, while Hillary may be down, she can’t be counted out. Her pro-choice credentials alone, and all the leftist mythology that naturally accompanies this position, still represent a highly potent force within enough states to make her competitive in the Electoral College vote. The country was lucky with Bill. He was president during the proverbial “hiatus from history,” the lull between the Cold War and the War on Terror. Eight years of Obama has put the nation on the brink of financial, emotional, social, bureaucratic, and legal bankruptcy. But what else can be expected from a party that sees nothing wrong with selling baby parts?