Obama’s Legal Vision

And now, my conclusion about where Obamacare falls into the law-versus-politics schema I mentioned, below, in the context of marriage and divorce. There was one real highlight and moment of clarity for me in Obama’s now-infamous Baier interview: the sequence where the President insisted that, because making the bill law was the right thing to do, he — and, presumably, the rest of us — could, in perfectly good conscience, dispense with the chore of considering whether whichever legislative process wound up making the bill law was wrong in any way. There was simply no remorse and no discomfort on this point. Because making law what the President wanted to make law was the right thing to do.

Now, it is clear that the moral force of mere health care reform is inadequate to power this sort of fixation. The system is broken, to be sure; but at least some honest commentators on both sides know and agree that this bill breaks the system further, by way of entrenching and extending its worst features, with one exception: a significant number of Americans without health insurance will get coverage. Nobody believes we would, or should, be unhappier if more Americans were able to pay their medical expenses. To pretend that this is the issue is to perpetrate a fraud. The practical issue is whether the experiences of our uninsured, once summed, constitute a moral problem so grave that all Americans face, and America itself faces, a non-negotiable moral obligation to insure them now, with this bill. Only if that is true will it be true that passing this bill is the right thing to do.

But we didn’t get from the President the kind of fervent moral passion on this point that a regular person, or even a pundit, might be forgiven for associating with one of the habitual or characteristic emotional states of Americans past and present. In some areas of governance — say, foreign policy — I actually believe this no-drama dispassion has served the President, and the rest of us, extraordinarily well, especially under the circumstances. And I suppose I’m relieved to an extent that Obama is not playing John Brown on health care reform.

But I’m distressed, to a more immediate and perhaps larger extent, by the way that the only possible moral justification for viewing the law of health care as utterly more significant than the politics of health care amounts to an intellectual footnote for the President. It seems to me that the President is actually operating on a much higher, grander, and, yes, troublesome level of moral abstraction. The central moral commitment or conviction that seems to be shining through Obama’s remarks on the supremacy of legal outcomes over political process is that legislating itself is a moral act — one which legislatures like ours seem incapable of performing properly. Precisely because our Congress is a complex representative system driven by actual political practice, it is too deformed and crippled to achieve legislative excellence. When we, or the President, places a demand upon our Congress to do so, things get — in the President’s word — “ugly.” By contrast, we are led to believe, fiat is beautiful.

I’m not going to bother with the radioactive trope of un-Americanism here. Long before Obama, fiat was hardwired at searing times into our national consciousness. Anyone who likes to trace our American political philosophy back to classical roots has got to admit that Plato leaves us uncertain at best about when legislative fiat is worse than the alternative. And there must be little doubt that the abstract ideal of legislation, in the western tradition, is the work of a single Lawgiver.

Charges of un-Americanism are beside the point, which is that a legal philosophy that views the power of the Lawgiver as a beautiful ideal and the authority of political practice as an ugly clutch of impediments to this ideal is a troublesome one. It is troublesome, perhaps most of all, because the beautiful ideal of the powerful Lawgiver is ill-suited to being realized in a country like ours — no matter whether that’s true because of ‘something in our collective DNA’ or because of ‘a concatenation of contingent circumstances’ or because of ‘our path-determined political history’ or anything else. In the United States of America, and real or imaginary countries like it, Obama’s moral philosophy of law can manifest only through an unwieldy, unaccountable, unmanageable, and often incompetent bureaucratic administrative apparatus — one which makes the unwieldy, unaccountable, unmanageable, and often incompetent legislative apparatus of our actual legislatures look, by comparison, like a model of administrative excellence.

In America, paradoxically, our messy political process of legislation, warts and all, loses to the Great Lawgiver in the legislative-excellence competition — while trouncing the agents upon which the Lawgiver must depend in the competition for excellence in governance.

The problem, of course, is that in this competition it is possible for nobody to win the gold medal. It is possible, in fact, for nobody to win at all. One side will simply lose more, and lose harder, than the other. That is the condition we seem to be plunging deeper and deeper into today. It is, in part, what David Brooks is getting at in talking about ‘the broken society’. What is most troublesome about Obama’s legal vision is that it strongly suggests the President does not understand this. “Something is better than nothing” — unless you think this is true because insuring uninsured Americans is so important as to be worth doing even through a bill as wretched, misbegotten, and irresponsible as this, it is not true. I’m concerned that President Obama thinks not only that it is true as a rule that something is better than nothing, but that it is a fundamental principle of legal philosophy, one that converges with morality itself, because bending the arc of history even a little bit toward the Lawgiver’s beautiful ideal is oftentimes the most, and the most heroic thing, we can do. This is incrementalism in the service of all too immodest ends, and in the case of this health care bill, it is a recipe from top to bottom for more governance, worse governance, and lots of it.