Now, all of the preceding has one huge asterisk attached to it; everything I have argued holds if and only if Obamacare falls within the normal spectrum of good, mediocre, and bad law. Now don’t get me wrong; my own view is that it falls very decidedly on the “bad law” end of the spectrum, in a whole host of ways. But America has seen a lot of very bad laws—Patriot Act, anyone?—that have not warranted, or have certainly not evoked, this kind of response. If the Right is not going to be hypocritical, they have to show why this is different and unique. If in fact it is an abomination before God or against man, an attack on the body politic, a form of tyranny or gross injustice, or sure to do incalculable harm to the common good, well then, we may be in a state of justified exception to the principles I articulated above. Hooker after all says, “Not that I judge it a thing allowable for men to observe those laws which in their hearts they are steadfastly persuaded to be against the law of God”; obviously there comes a point at which “it’s the law of the land” should not be sufficient in itself to compel obedience. If, for instance, to pick an issue of particular concern to conservatives, Congress were to pass a law requiring that all doctors without exception must perform abortions on demand, civil disobedience on the part of doctors would be the only acceptable option, and ferocious opposition by legislators might be in order. In cases such as this, we would celebrate the many checks and balances in our constitutional system, and seek to use whichever ones we could to obstruct the implementation of such an unjust law. But is the Affordable Care Act, as such, of this nature?
The biggest objection I received to my invocation of Hooker on Obamacare and the government shutdown, unsurprisingly, was that these statements of his could not take into account the particular Constitutional structures of the United States. He wrote in an age and in a constitutional setting where there really was very little recourse if you didn’t like the law—it was the Queen’s way or the highway, so to speak. Sure, there was a Parliament through whom elected representatives made decisions on behalf of the body politic, but its power was limited, and its claim to meaningfully represent the people was fairly tenuous by our modern standards. The right and wrong current debate in the United States Congress could not, of course, be adjudicated by standards from 16th-century England, but only by standards applicable in 21st-century America—including, above all, the Constitution. So the objection went.
Of course, I was well aware of the anachronism of the post, which I sought to humorously highlight in its title. I do not think, however, that the appeal to the American constitutional system affects my core point in invoking Hooker; for, as I have sought to highlight in the previous installment, this concerned the rhetoric and attitude behind current Republican obstructionism, rather than its mechanism per se. It is quite possible to stay within the letter of the law in the means of political opposition used, without in any way maintaining an attitude of respectful obedience toward the law. Indeed, it is my contention that the forms in which this objection has been voiced simply reinforces the fundamental problem of political and societal breakdown that I wanted to highlight in my post.
I have been told that using such measures as a government shutdown or potential debt default as bargaining chips to pass legislation is simply “democracy at work,” and that the “power of the purse” is a “political weapon” that the Constitution “granted to the House to be employed as it was found to be necessary.” Of course, debates over to what extent the current crisis is unprecedented or routine have become a prominent part of the partisan back-and-forth over the past week. I do not feel historically-qualified to resolve them entirely, although I have become reasonably convinced of the following conclusions:
(1) there is considerable precedent for using government shutdowns as leverage for resolving policy disputes, even if the current situation is uncharacteristic by virtue of the sheer boldness of the Republican demands, which, requiring as they did the overturn of such a signature and significant piece of legislation, could not really be considered as a good-faith negotiating position
(2) there has been considerable precedent of negotiating against the backdrop of an impending debt-ceiling, in which the possibility of default loomed as an implicit threat above the heads of both parties, but the current situation is largely distinctive inasmuch as Republicans have turned this implicit threat into an explicit ultimatum, inasmuch as their core demand (the repeal of Obamacare) is essentially extraneous to the budget debate itself, and inasmuch as their demands were so exorbitant that they could never conceivably be attained by ordinary political means. (For more on this, see the interaction between Jonathan Chait and Ross Douthat here, here, here, and here).
So commentators on the left are unfair to treat all of this as wholly unprecedented political terrorism. However, that does not mean that it is reasonable to describe all of this simply as business as usual, or “democracy at work.” Read More