Antipopulism, and Its Consequences

Matt Yglesias, citing Jeffrey Rosen, notes over at TAPPED that "The bulk of the conservative judicial agenda has little to do with abortion, gay rights, or other hot-button issues. Instead, the right's legal theorists and, increasingly, judges have a much more ambitious plan to scale back a bunch of New Deal-era jurisprudence and deem huge swathes of the regulatory state unconstitutional." This is certainly true, and it begs the question of what the left is going to do about it. Well, actually, Matt fears they might do nothing: "My biggest fear about the courts over the next few years is that in seeking to protect Roe the Democrats will wind up giving away the store on almost everything else." Like him, I'm afraid that might be the case. Matt is correct in writing that this kind of conservative judicial activism is "radically counter-majoritarian"--the basic egalitarian premises of the New Deal are deeply popular, if not especially well understood, with the result that few people understand how it is that in buying into "ownership society" rhetoric, which is couched in the same or at least similar "social justice" and "compassionate" terms as those programs which FDR and, earlier, the Progressives pioneered seventy or more years ago, they contribute to the undermining of the legal and political will and interpretation which made it possible for these highly popular measures to come about in the first place. And unfortunately, this misunderstanding, and hence laxity in guarding whatever common economic security the American citizenry has managed to secure, is deepened by a liberal movement so wrapped up in individual lifestyle issues (issues that are, often, both irrelevant and needlessly antagonizing to many working-class voters that desire some recognition for their to a degree purposefully limited lives) that liberal politicians seem inconsistent, if not hypocritical, when they try to turn the spotlights on such simple collective issues as income, health care, national service, trade, and so forth. There is little that is actually, genuinely, populist about Bush's tax plan or any number of other policies; but those behind the Bush agenda can portray themselves as such, borrow the rhetoric and perhaps even be unaware themselves at how falsely they often use it, because Democrats too often allow themselves to be (not inaccurately) painted as antipopulists, supporting social agendas that don't link up with the very worthy things they have to say regarding economic need.

Drake Bennett, whom Matt cites as part of his argument, thinks that overturning Roe v. Wade and returning the issue of abortion to the decision of popular majorities within the states, would benefit the progressive movement, because it would force the Republican party to either put up or shut up regarding abortion, with the likely result that the party would divide along traditional conservative and more libertarian lines, thus weakening it. But that's strategic thinking; more important is what such an overturning would mean for the play of political ideas across the spectrum. If Democrats did not have to campaign with that albatross around their neck, wouldn't it be likely that they (or at least some of them) could join their support for moderate, popular restrictions on abortion (such as I outlined here) with similarly popular campaigns for preserving the legal limits which have protected social insurance and health programs for most of a century? The death-knell of New Deal jurisprudence begins with a basic argument about the individual and their property; how can progressives adequately defend the economic priorities they have long stood for if at the same time they can be legitimately be accused by red-state rabble-rousers of being antipopulist defenders of the (usually elite) individual's right to choose, in any and all cases? To preserve a polity that is both legally and politically capable of showing significant social concern for all citizens requires taking seriously the popular, moral concerns of those citizens; otherwise, you'll lose a lot of people to the siren call of closing themselves (and their incomes) off from a society that they just think is invasive anyway.

Matt concludes by arguing that "social liberalism would at least have a fighting chance" in the legislative arena, and he's correct. There's a lot more moderation in the red states (and elsewhere) than the currently traumatized liberal camp might care to believe; the problem (or one of the problems) is that there hasn't been the humane (one might even say hermeneutic) respect for participatory action and collective decisionmaking that we've needed to see it come to light. On both sides of the divide, the quest has been for absolutes, not populist association. I don't see any reason why there couldn't emerge through the give-and-take of legislation a plausible, moderate, socially concerned platform which emphasized both justice and civic responsibility, moral limits and communal provision. For the Democrats to drop their emphatic defense of this crummy bit of law would be a good start.