The Long View 2005-04-18: Omens: Libertarian & Papal

This seems like a good opportunity to link to this week's most striking graph. The libertarian corner is almost wholly unoccupied by actual voters, but it figures heavily among the intelligensia and the ruling class.

Omens: Libertarian & Papal


People looking for bad omens were no doubt pleased by Jeffrey Rosen's piece in yesterday's New York Times MagazineThe Unregulated Offensive. The piece dealt with the well-funded libertarian movement, sometimes called "The Constitution in Exile," aimed at reviving all the "substantive due-process" jurisprudence that the Supreme Court was forced to abandon in the 1930s under pressure from the Roosevelt Administration. When I was in law school, the general consensus was that substantive due process was perhaps the stupidest thing the Supreme Court ever did. Based on little more than its own imagination, the Court used the power of judicial review to strike down laws governing wages and work hours, the protection of endangered species, and pretty much everything else that 20th-century states did in peacetime. Oliver Wendell Holmes was not keen on much of that social-welfare legislation himself, but he forcefully reminded his colleagues on the Court, in a long line of ringing dissents, that their economic and social theories were not in the constitution, and that there would be no end of trouble if the Court pretended they were.

What we have here is yet another instance in which the Right has become as unprincipled as the Left. We should note that the current libertarian project is beyond even the widest definition of conservative. Justice Scalia, whose views on the welfare state are not so different from Holmes's, has said that the libertarians are asking the courts to embrace the sort of judicial overreaching that he has been arguing against for his whole career. Rosen is of similar mind:

But a political transformation in [the libertarians'] favor remains, for the moment, remote, and they appear content, even eager, to turn to the courts to win the victories that are eluding them in the political arena. Advocates of the movement are entirely sincere in their belief that the regulatory state is unconstitutional as well as immoral and that a principled reading of the Constitution requires vigorous enforcement of fundamental limits on state power. Nevertheless, it is a troubling paradox that conservatives, who continue to denounce liberals for using courts to thwart the will of the people in cases involving abortion and gay marriage, now appear to be succumbing to precisely the same temptation. If the lessons of the past 60 years teach us anything, when judges try to short-circuit intensely contested democratic debates, from the New Deal cases to Roe v. Wade, they may provoke a fierce political backlash that sets back the movement they are trying to advance. In this sense, even if the Constitution in Exile movement manages to transform the courts before it has transformed the country, it may find that it has won less than it hoped.

Let me make the last point explicit: The power of constitutional judicial review may or may not survive the morbid insistence of the cultural Left on maintaining the autonomy right of the Griswald-Roe-Casey decisions. Should the Supreme Court begin to strike down economic legislation as it did before 1937, the Court's jurisdiction will be quickly and radically reduced.

* * *

On the subject of bad omens, rarely have we seen such a motley collection of them as in the NBC miniseries, Revelations. The Bible does give signs of the apocalypse, but the writers for the series seem to have found theirs in The National Inquirer. Actually, if you are interested in some popular apocalyptic sign-spotting, and don't mind anti-Catholic polemics, you might take a look at Endtime Insights. Better still, go to Carolin Esser's Apocalyptic Ideas in Old English Literature. The gallery will be of interest to those readers looking for graphics to incorporate into really alarming greeting cards.

* * *

I have read quite a bit of John Paul II's writings. The content was important, even dramatic, but there was something about the "voice" of this prose I could never quite put my finger on. Had the text been part of a novel, it would have been more like an explanation by an omniscient narrator rather than the thoughts of a character. Now Joseph Bottom, who has lately risen to the dizzy eminence of editor at First Things, has also noticed something of the sort. Writing in The Weekly Standard (April 18), he says:

"We have millions of words from the man: the 14 major encyclicals, 15 apostolic exhortations, 11 apostolic constitutions, and 45 apostolic letters; the popular books like Crossing the Threshold of Hope, scribbled on yellow pads during long plane flights; the scholarly works he wrote as a young theologian; the thousands of prayers and exhortations he delivered during the innumerable audiences he tirelessly gave as pope. And in all those words, there is hardly a hint of what a psychologist would demand: a persona that somehow stands apart from the history through which he lived and the intellectual growth he experienced.

Something else: JPII was often conciliatory, but never defensive. Perhaps only John XXIII had as little use as John Paul II for the Church's post-revolutionary defensive crouch of the last two centuries.

* * *

There will probably be a new pope by the time you read this. Here are a few quickly falsifiable predictions:

---Although a new pope often takes the name of his immediate predecessor, there does not seem to be a single case in which the same name was used by three popes in a row. So, the odds are that there will be a revival of an earlier name. "Pius" is a possibility, but a pope who declared himself Pius XIII would begin his reign with a lot of unnecessary baggage. I suggest that another Gregory might be in order; the last one was in the 19th century. Such a name would recall Gregory the Great, who founded Christendom, and Gregory XIII, who sponsored the reform of the calendar.

---The last two papal conclaves were very quick, just a day or two. Within the confines of orthodox thought, as distinguished from what the newspaper editorialists are saying, there is actually rather less to discuss this time around. It would be surprising if this conclave lasted past midweek.

----Again, the chief argument against Cardinal Ratzinger becoming Pope Gregory XVII by noon on Wednesday is that so many people are on record as predicting just that (well, not the Gregory part). Neither the College of Cardinals nor the Holy Spirit like to be told what to do.

Whatever does happen, we may be sure that we will never see the like of Pope Hilarius (461-468) again. Well, relatively sure.

Copyright © 2005 by John J. Reilly

Why post old articles?

Who was John J. Reilly?

All of John's posts here

An archive of John's site