Nov 15 2018
As you know, Congress has just returned to Washington this week after the pre-election recess. And of course the talk of the town is the split results of the mid-term elections last week.
Everyone in the media, on Capitol Hill, and the administration is wondering what the new Democratic House of Representatives will mean for the future. Will there be compromise? Will there be gridlock? There is a lot of handwringing going on. So it warms my heart to be here today and see that there is at least one group of people who are really optimistic about the next two years… Washington defense lawyers.
I obviously had some disappointments on election night. Some good friends came up short in their races, and losing the House hurts. But I’m not going to lie: being able to call Mitt Romney “Junior” from now on does take some of the sting out of it.
It is those elections, and the unambiguous message I think they sent, that I’d like to talk to you about today. To constitutional conservatives, the election results – and the Congress it will produce – have to be seen as an opportunity. To learn some lessons that both parties, but especially mine, have been ignoring for too long. Obviously, I was rooting for Republicans last Tuesday night. But from my perspective divided government is not a problem in and of itself.
The House and Senate are going to be divided because the country is divided. In that sense, the election results once again affirmed the genius of the Founders’ framework.
Now in the media, division is lamented as a disease that needs curing – ideally by conservatives just giving up and going along with whatever progressives want. But disagreement, especially in the United States, isn’t a disease. It’s a sign of health. Conflict – even deep, bitter disagreement about first principles – is innate to all human relationships.
The Founders understood this. They had to, or they never would have gotten out of Philadelphia in one piece.
From the day it was first conceived, the United States was among the most diverse nations in the history of the world. Our Constitution was written specifically for a people divided on political, regional, economic, cultural and religious questions. It serves as a roadmap for resolving disputes not only peaceably, but through mechanisms designed to best facilitate the happiness and freedom of all sides on all questions.
When people ask today how Americans can overcome our differences and come together as one nation, the answer is in many respects the same as it is has been since 1787.
The Constitution’s system of separated powers and federalism not only made the United States vibrant and flexible – but what the scholar Nassim Taleb calls “anti-fragile.” Ours is a system made stronger by tension and division. Thanks to the Constitution, our diversity really is a strength – because of the common gratitude all Americans can take from the freedom to govern their unique communities according to their particular values. Under the alchemy of the Constitution, America’s wild differences are transformed into a source of national unity.
Today, though, it sometimes doesn’t feel like it. Today, our disagreements seem to be pulling us apart, not together.
Take, for example, the character assassination of Brett Kavanaugh – excuse me, Justice Brett Kavanaugh.
Six weeks after he was confirmed, I still can’t quite get my head around what happened.
My Democratic colleagues on the Senate Judiciary Committee deliberately withheld material evidence from Committee and FBI investigators for weeks, so as to maximize the cruelty visited both on Justice Kavanaugh and Christine Blasey Ford.
They used a nationally televised hearing to ask Justice Kavanaugh about flatulence and high school drinking games.
They attempted to launder the vile accusations raised by Michael Avenatti, and they uncritically repeated other unsubstantiated and uncorroborated allegations.
They justified their stunning abandonment of the presumption of innocence by saying the confirmation process was merely “a job interview,” as if that somehow disposed of the need for any semblance of fairness.
The truth is that Democrats were acting irresponsibly even before Dr. Ford’s letter was leaked to the press. My friend, the junior Senator from New Jersey, declared that Justice Kavanaugh’s supporters were “complicit in evil” and urged protestors to “get up in the face of some congresspeople.”
We are told this is payback for Judge Garland’s nomination. “At least Brett Kavanaugh had a hearing,” the Left tells us – as if that could somehow justify a deliberate effort to destroy a man’s life. And, in any event, that excuse doesn’t explain the smears against other highly qualified nominees of exemplary character over the past 30 years.
So while the Democrats’ treatment of Justice Kavanaugh is perhaps the worst and most recent manifestation of this phenomenon—while it was shocking and disgusting—let’s be honest: it was neither completely unprecedented nor entirely surprising.
In any event, we need to find a way to prevent something like this from happening again. Ever. I applaud Chairman Grassley for investigating every lead and making criminal referrals where appropriate. That’s one important way to deter people from making false accusations.
But there’s an even deeper problem. From the perspective of the raging extremists who control the Left’s social agenda, what happened earlier this year was entirely rational.
For decades, we have pulled powers constitutionally reserved for the states and the people into the federal government. And once they were here, we have transferred them from Congress to the judiciary and Administrative State.
Today, more and more decisions are made by Washington, not state houses or city halls. And more and more of Washington’s decisions are made by unelected judges and unaccountable bureaucrats, not Senators and Representatives.
This anti-constitutional project has hacked away at the bonds of trust formed long ago between the American people and their government. By seizing power from more politically homogenous, local governments and communities, Washington denies the American people the ability to govern by consensus.
A government designed to be “by the people, of the people, and for the people” – all the people – is too often instead run for 51 percent of the people and against 49 percent.
This approach artificially raises the stakes of federal policymaking, and therefore, the temperature of our national political debate.
As long as Supreme Court justices anoint themselves philosopher kings, issuing moral decrees – in Nancy Pelosi’s words – “almost as if God has spoken,” the total political war we saw this fall will only continue.
As long as the federal government blithely asserts the power to regulate, penalize, tax, or subsidize any behavior, our politics will incite the very impulses constitutions are written specifically to overcome. What we saw in a leftist mob driving Ted Cruz from a restaurant… or violent criminals terrorizing Tucker Carlson’s wife at her home… is just the beginning.
Increasingly, the Left treats politics like a religion, and conservatives not as loyal opponents, but heretics and infidels. On college campuses and other institutions where the Left holds unchallenged power, the Right is not questioned but anathematized. Conservative arguments are denounced as hate speech, illegitimate, undeserving of First Amendment protection. Many students today are being taught the foolish theory that some speech is violence – and, by extension, the evil corollary that some violence is speech.
The popularity on the Right of a more combative style is only further evidence that Americans have simply accepted the unhappy consequences of Washington’s bipartisan consensus that all politics is now national.
As we have seen in recent elections, very much including last week’s mid-terms, our growing ideological divide mirrors a hardening geographic divide. Look at any electoral map today, and you see the same thing: America is split in two.
Democrats are increasingly clustering in densely populated cities and near suburbs, mostly on the coasts. Republicans are winning in exurban and rural America.
After last week’s elections, for the first time in a century, only one state in the union will have a divided legislature. Red and Blue America see the country and the world very differently. So differently that our rhetoric today is less about “option A” versus “option B,” or even correct versus incorrect, and more in the realm of good versus evil. Such stridency makes national consensus rare, and federal compromise extremely difficult.
Taken together, these three trends – bitter philosophical disagreement, stark geographic division, and the bipartisan embrace of “winner-take-all” national politics – comprise a constitutional dirty bomb that threatens the foundations of our republic.
“Bitter clingers.” “Deplorables.” The Kavanaugh nomination. The religious inquisition of Amy Coney Barrett and Russ Vought. Even worse – Charlottesville, and the congressional baseball practice.
Even the institutions set up to shield Americans from the sort of mob behavior that has always threatened the stability of republics are coming under attack.
The electoral college, the legislative filibuster, and even the Senate itself. Freedom of speech? Freedom of the press? Freedom of religion? The presumption of innocence? The right to bear arms? In today’s all-or-nothing politics, especially on the Left but also sometimes on the Right, these bulwarks of liberty are too often casually dismissed as obstacles to progress. Meanwhile, the proponents of these principles are not just dismissed, but downright vilified. This toxicity of our politics and revolt against our institutions is the fruit of centralized power.
Centralization has not made us stronger, or happier. It has not made our economy stronger, more dynamic, or more likely to promote economic mobility among the poor and middle class; centralization tends to do precisely the opposite. Meanwhile, and for many of the same reasons, it’s making our politics weak, brittle, coarse, and resentful.
Where do we think this is going to take us next? If and when the opportunity comes to replace one of the Supreme Court’s liberals? In 2020, as Democrats jockey to see which one can be their successful Trump candidate?
Bear in mind, we’re at this fever pitch at a time of relative peace and historic prosperity. Thanks in large measure to President Trump’s economic reforms and the sense of optimism they have created, our economy is at full employment and growing fast enough to temporarily distract us from our $21-trillion national debt and $800 billion annual deficit.
What happens when the next bubble bursts? When the next recession hits? When the multi-trillion-dollar debts accrued by state and local pension funds come due? What happens when next we face a genuine international crisis? What happens when treasury yield rates return to their historical average, and we see service payments on our national debt skyrocketing from $300 billion per year to around $1 trillion per year, forcing us to find an additional $700 billion per year—more than our entire budget for the Department of Defense—within a surprisingly short period of time?
You get the idea: according to any reasonable measuring stick, the dysfunctional status quo is unsustainable. It is driving our government toward insolvency and our politics toward violence. Realistically, Americans have two options.
Either we are going to once again embrace the Constitution’s vision of a diverse, tolerant, pluralistic union of states and communities—each governed according the values and priorities of its citizens. Or this fundamentally un-American contest—one recklessly designed to determine which half of our nation can unilaterally impose its will and its values on the other half—will escalate violently out of control.
Ultimately, this will come down to a binary choice: Federalism, or violence.
Many on the Left don’t seem too concerned about any of this. They believe demographic and historical trends—coupled with what many see as the inherent rightness of their leftist cause—make their ultimate victory over Red America inevitable. They believe every lever of federal power will one day – soon and permanently – be in their hands. They are content with non-stop, political, total war because they’re sure they’re going to win it—blind to the fact that such a victory would come at the expense of the American experiment itself.
Unless or until that changes, it therefore falls to conservatives to chart a new course. Not simply to turn away from disaster, but to turn America toward a genuinely happy and sustainable future of tolerance and diversity.
Beginning this project is going to be my focus for the upcoming Congress. Pundits expect the next two years to be legislatively thin. The Democratic House is expected to focus on investigating the Trump Administration, while the Senate spends its time confirming the president’s nominees.
Confirming judges and executive-branch nominees is critically important work, especially if we hope to restore localism and subsidiarity to the republic.
But it’s not enough. Conservatives also need a vision of America that transcends partisan total war, and an agenda to help get us there: a new, sustainable politics of subsidiarity and localism in the service of diversity and tolerance.
Federalism is the answer. It’s not just the best answer; it’s the only answer.
Setting aside for a moment that it is required by the Constitution itself, federalism offers several unique advantages for us today.
First, if fully embraced, it would allow each state to govern itself according to its own values. Federal policies that have usurped local autonomy and imposed one controversial set of ideas on the entire country should be rethought and reformed, and power returned to the states. We have to devolve the federal programs necessary to once again let Vermont be Vermont and Utah be Utah.
Second, we must allow the states to be more than “laboratories of democracy.” Too often, when Washington does speak of federalism, it does so in terms of temporary experimentation – as if the only goal were to figure out which state’s approach might be the one to be scaled up and then forced on the entire country. This is the absolute wrong approach.
Instead, we should allow each unique community to develop unique solutions according to unique local preferences, and leave it at that. In every instance, some states are going to do better than others. The beauty of governing locally is that, if you really don’t like one community, you don’t have to run for office, or sue anyone, or protest, or write editorials. You can just move.
Third, we should not think of federalism as merely a devolution of power, but the re-personalization of politics. How much of the toxicity of our national debate is due to its forced impersonal anonymity? Few people treat their neighbors the way activists treat each other on social media. Politics is an innately human activity – it should be done eye-to-eye, not iPhone to iPhone.
Getting decisions out of Washington won’t just make Americans happier – by giving them the power to run their own communities. It will make them nicer by forcing them to engage in politics as human beings again, instead of digital scolds and virtue signalers.
Now, we should have no illusions about state and local governments always being more efficient or less wasteful than the federal government. They’re often not. But sovereignty and civility are more important than efficiency.
States have two other advantages over Washington. First, they’re closer to their voters, and policymakers are more accountable – more easily pressure-able and fireable – than they are here. And second, of course, most states are required to balance their budgets, either by a constitutional amendment or otherwise. In any event, no state has the option of perpetual deficit spending on the scale seen in Washington. There is nothing wrong with a state’s voters choosing to have a big government or a small government – especially because they tend to bear the costs for their choices, and don’t have the option of transferring those costs to another state or another generation.
The low-hanging fruit is obvious. The Interstate Highway System. K-through-12 education. The federal higher education accreditation cartel. Early childhood education. The Department of Commerce. The huge glut of federally owned land and real estate. Housing policy. Workforce regulation.
These – and the knotty, interconnected problems of welfare dependence and health care – would all be more easily untied if 50 diverse and motivated states were working on them.
In Washington, because of America’s deep red-blue divide, these are very controversial issues. They are less so within our increasingly dark red and dark blue states.
When there is no national consensus or federal imperative, there should not be federal law; especially if there is a greater degree of consensus within each state. Just because New York, Massachusetts, and California agree on something doesn’t mean the rest of the country has to go along. Insisting otherwise is not constitutional republicanism; it’s cultural imperialism.
By clearing Washington’s decks of these smaller issues, we can finally begin to regain the trust necessary to deal with the bigger ones – the ones we can’t return to the states and localities. Senior entitlements and the debt. National security. Immigration. Trade. Globalization.
The good news is that, thanks to President Donald Trump and the Republican Senate majority, we have a Supreme Court that should be ready to do its part on this project. Today the Court stands ready to allow – indeed, to require – the elected branches of the federal government to once again do their jobs instead of arrogating to itself authority to permanently “settle” important national issues.
And for that, of course, no one deserves more credit or thanks than the men and women of the Federalist Society. Thank you.
The United States must always be one nation. Today, we are a purple nation – and that’s okay. We need to stop trying to turn the red half blue and the blue half red - each against its own will. It doesn’t work, and it’s only making people on both sides of aisle – in every state in the union – really, really mad.
Localism and subsidiarity – they’re not a deviation from the plan. They are the plan. They have been the plan all along. Returning to the plan won’t just make our country happier and stronger. Respectful tolerance of diversity will make us better citizens and better people.
The future we want is one in which all Americans are represented by their governments and respected by their neighbors… where diversity is not only celebrated, but practiced by both parties at every level of government… where local communities enjoy the freedom to be themselves… where our differences make us one. Together, we can do this. But we’ve got to believe that the Founding Fathers knew what they were doing, and that their vision has never been more timely than it is at this very moment.
Thank you very much. God bless…