Yuval Levin on how progressives have adopted, or perhaps co-opted, the Declaration of Independence.
This speech was about as compact yet comprehensive an example of the contemporary progressive vision as we’re likely to get from a politician. It had all the usual elements. Its point of origin was a familiar distorted historical narrative of the founding—half of Jefferson and none of Madison—setting us off on a utopian “journey” in the course of which the founding vision is transformed into its opposite in response to changing circumstances, with life becoming choice, liberty becoming security, and the pursuit of happiness transmuted into a collective effort to guarantee that everyone has choice and security. The ideals of the Declaration of Independence are praised mostly for their flexibility in the face of their own anachronism, as their early embodiment in a political order (that is, the Constitution) proves inadequate to a changing world and must be gradually but thoroughly replaced by an open-ended commitment to meeting social objectives through state action.
This echoes what I have referred to as the two conceptions of liberty in NFIB v. Sebelius.
Here’s a preview of a section of my book on just this point. My manuscript is approaching completion. The setting is the final moments of arguments on the 3rd day of the ACA case. The Solicitor General and Paul Clement offered competing visions of liberty.
With roughly three minutes left from his expanded time, the Solicitor General began a prepared closing statement–though, if he had finished when his allotted time was up, he would not have and enough time to fit this in. Verrilli’s closing statement aimed to encapsulate the wide range of arguments on law, politics, and philosophy the Court had waded through the past three roller-coaster days. Interestingly enough, his closing focused on a topic that was conspicuously absent–liberty.
The Solicitor General, who had been the subject of ridicule on the right and the left, had one final chance to make his case for the Court. He began, “But if I may just say in conclusion.” He coughed. “I’d like to take half a step back here.” His argument wasn’t just about the “the Medicaid expansion that we’re talking about this afternoon,” but also the individual mandate “provisions we talked about yesterday.”
As a gentle reminder to the Court, that there were more than one visions of liberty on display, Verilli urged the Justices that “I think that that is important as the Court is considering these issues that that be kept in mind.” More strongly, Verrilli urged that it was for the elected branches, and not the Court to decide the fate of this law. “But this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it. And I would suggest to the Court, with profound respect for the Court’s obligation to ensure that the Federal Government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question. That this was a judgment of policy, that democratically accountable branches of this government made by their best lights.”
While “we’ve been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can’t afford insurance.,” there is a more significant issue at hand.
Verilli continued, “There is an important connection.” He paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that.” These were comments likely aimed at Justice Kennedy, who has grounded his ve the opportunity to enjoy the blessings of liberty . . . “In a very fundamental way, this Medicaid expansion, as well jurisprudence in the protection of individual liberty and dignity interests.
Turning to the practical realities at hand, “in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and has the provisions we discussed yesterday, secure the blessings of liberty.” Here, Verrilli was quoting from the Preamble to our Constitution, which states that the United States was formed to “secure the Blessings of Liberty to ourselves and our Posterity.”
This was a message that Progressives had preached throughout the enactment of the ACA. Upon signing the bill, President Obama declared, that it enshrines “the core principle that everybody should have some basic security when it comes to their health care.” On March 22, 2010, minutes after the midnight vote in the House that passed the ACA, a jubilant Speaker Nancy Pelosi beamed that “this bill tonight [created the] opportunity for affordable health care for all Americans to have the freedom to have a healthier life, to have the liberty to pursue their own happiness.” Pelosi was channeling Thomas Jefferson’s eternal paen to freedom from the Declaration of Indpendence, which recognizes our “inalienable rights of life, liberty, and the pursuit of happiness.” President Obama delivered a similar message in his second inaugural address, evoking Jefferson. “That they are endowed by their creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness. Today we continue a never ending journey to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they’ve never been self-executing. That while freedom is a gift from God, it must be secured by his people here on earth.” It is the people, through the collective, not the individual, that must secure these rights. [JB: I will add Obama’s inaugural address to this list]
After years of litigation, criticism, and political wrangling, the government had stated its case. “And I would urge this Court to respect that judgment and ask that the Affordable Care Act, in its entirety, be upheld. Thank you.”
Without skipping a beat, the Chief Justice said, “Thank you, General. Mr. Clement, you have 5 minutes.” Paul Clement rose to have the last word, and provided an impromptu rebuttal that offered a very different vision of what liberty means.
“Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty.” After three long, hard-fought days of argument, Clement would have the last word on liberty–aimed directly at Justice Kennedy.
“But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.” This was not the liberty of Justice Kennedy.
Clement echoed a point he had made in his brief: “The Constitution protects and promotes individual liberty, while the mandate’s threat to liberty is obvious. The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse. It is a revolution in the relationship between the central government and the governed . . . However, by making clear that this uncabined authority is not among the limited and enumerated powers granted the federal government, this Court will preserve our basic constitutional structure and the individual liberty, state sovereignty, and government accountability it guarantees . . . An individual can do very little to avoid the long arm of the federal government other than refrain from entering into the commerce that Congress may regulate. ”
Clement continued, “And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.” This was not the federalism of Justice Kennedy. Clement wrote, in his brief “If this is to remain a system of limited and enumerated federal powers that respects individual liberty, accountability, and the residual dignity and sovereignty of the States, the individual mandate cannot stand”
The Court only interrupted Clement once. No doubt they were exhausted too.
Just as the red light turned on, Clement finished. “Thank you.”
Chief Justice Roberts brought the proceedings to a close on Wednesday, March 28, 2012 at 2:24 p.m. “Thank you, Mr. Clement. And thank you, General Verrilli, Mr. Kneedler, Mr. Carvin, Mr. Katsas, and in particular, of course, Mr. Long and Mr. Farr. The case is submitted.”
After three grueling days, following three grueling years, and the case had come to a close. Or had it?