I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, May 07, 2006

The Bush administration is radical, but not ideological

There have been several interesting responses to the post I wrote regarding the emerging (and largely unprincipled) effort by conservatives to disassociate their political movement from the wildly unpopular George Bush by now proclaiming that Bush is not only a non-conservative, but is actually a liberal. The goal seems to be to ensure that liberalism, rather than conservatism, is to be blamed for Bush's collapsed presidency.

The branding of Bush as a "liberal" is something that appeared in this National Review article by Jonah Goldberg, and my subsequent exchange with Goldberg has spawned further posts on the subject -- including this reasonably substantive new reply from Goldberg himself, this thorough examination from Hunter at Daily Kos of how self-proclaimed "conservatives" actually govern (as opposed to how they theorize), and this not particularly coherent protest from Josh Trevino (at the new, "interestingly" named blog Swords Crossed), which almost entirely misses all of the points that have been made. I wanted to post a further reply because I think these issues are both interesting and important.

(1) My initial post on this topic argued that as a result of the irreversible collapse of Bush's popularity, conservatives have gone from criticizing specific policies of Bush's as insufficiently conservative (something which, I acknowledge, is not new), to actually insisting that he is not a conservative at all, and in Goldberg's case, that he is actually a liberal (something that is strikingly new). When Bush was popular, criticisms from conservatives were always premised on the unchallenged notion that Bush was a conservative, just not always ideologically pure. But now that he is unpopular, we hear that he is not and never was conservative at all, and might even be a liberal -- a significant, even fundamental shift.

In his latest response, Goldberg acknowledges that he "has long criticized Bush's compassionate conservatism as a form of conservatism I don't like, rather than as a form of liberalism." But Goldberg claims that this distinction is "lawyerly and more than a little intellectually dishonest" because his labeling of Bush as a "liberal" was surrounded by caveats and exceptions.

It is, to put it mildly, rather bizarre to watch people claim that there is nothing notable or new about calling George Bush a "liberal" -- caveats or not -- or that doing so is really no different than complaining that his adherence to conservative doctrine is something short of pure and absolute. Since at least the 1980s, our political dialogue recognizes two opposing, hostile camps -- conservatives and liberals. "Liberals" are the traitors, the lunatics, the ones against whom Rush Limbaugh has been viciously railing to 20 million people, 4 hours a day for the last 20 years. "Liberals," as Karl Rove told us, are anti-American and allies of The Terrorists

That's how "liberals" have long been talked about -- they're the subversives, the weak losers, the socialists, the Friends of the Terrorists, the lunatics, the anti-American bad ones. At best -- in more sane, less "unhinged" right-wing circles -- they are wildly misguided and are the political enemies of conservatism. Whichever approach one takes, it is self-evidently startling and politically significant to hear that, after all this time, George Bush -- presumably along with the entire Republican leadership in the House and Senate which passed every spending bill since 2003 -- is, to at least some extent, now one of them, an actual liberal. It is hard to understand how one can pretend that to suddenly stick the "liberal" label on Bush, even partially, is unnotable and really nothing new.

(2) Goldberg's claim that Bush can even remotely be described as a "liberal" is premised on two separate fallacies: (i) that someone who deviates from conservative doctrine or violates conservative principles of government (and therefore is not a conservative) is, by definition, a "liberal"; and, more importantly, (ii) that someone who advocates increased government power or new federal domestic programs is, by definition, a "liberal." Those two flawed premises lead Goldberg to conclude that because Bush has expanded the scope of government power and created new government programs, he is "liberal."

A liberal is not merely someone who advocates increased government spending or new government programs, but instead, is someone who does so in order to achieve specific goals and ends. For that reason, to describe a president as "liberal," it is woefully inadequate to simply demonstrate increased federal spending and increased federal power. One has to know the goals and ends of this expansion.

George Bush has drastically expanded the reach, scope and power of the federal government (something which is un-conservative, at least in theory), but that power has been applied in plainly un-liberal ways, and towards decidedly un-liberal ends. For instance, his administration has run roughshod over federalism and states' rights principles and has sought to expand the scope of the Commerce Clause in order to increase the scope of federal power at the expense of the states (clearly the opposite of the crux of small-government conservatism), but has done so in order to achieve goals which are the opposite of liberalism.

The administration has wielded inflated theories of federal power in order: (a) to interfere in a state court probate proceeding so as to dictate the outcome of an individual's end-of-life decisions; (b) to prevent states from allowing their terminally ill citizens to opt for physician-assisted suicide; (c) to override state law allowing sick people and their doctors to turn to medical marijuana; (d) to federalize laws governing marriage (traditionally the exclusive province of the states) in order to ban same-sex marriages; (e) to empower the FDA to override objective scientific inquiry with religious convictions so as to ban the use of safe and effective pharmaceutical products and nullify scientific consensus on moral grounds; (f) to spend more money and increase law enforcement powers in order to combat adult pornography and gambling; (g) to fund new federal programs to teach Americans about abstinence, promote religious-based teachings, and proselytize about other favored moral concepts; and (h) to increase the power of the Department of Education to regulate and control the nation's public schools through reliance on standardized tests.

These are all instances in which the Bush administration has expanded the reach of federal power and increased domestic federal spending -- often by intruding into areas historically reserved for the states. That conduct is the antithesis of the belief of small-government conservatives in federalism, states' rights and restrained federal power. And yet, in no sense could any of these efforts to expand federal power be described as anything resembling "liberalism." They are nothing other than efforts to increase the power and reach of government in order to coerce behavior or impose ideological constraints on liberty that virtually no contemporary liberal would endorse.

And that relatively innocuous list is entirely independent of the whole slew of highly controversial, power-seizing programs which are of, at best, dubious legality -- including eavesdropping on Americans with no warrants and no oversight, the lawless incarceration of American citizens on U.S. soil with no charges and no trial, the embrace of theories of executive power which vest lawbreaking powers in the President, the use of torture and rendition as interrogation tools, the creation of secret Eastern European prisons beyond the reach of the law, etc. Those are all instances of wildly expanded federal power which cannot be said to be conservative (as George Will, Bruce Fein, Bob Barr, and many other conservatives have eloquently argued), but they certainly could not remotely be described as liberal. Instead, they are really well outside of the spectrum of mainstream ideology, really outside of the American system of government as it has been defined since its founding.

In fairness, there are a handful of Bush programs which can reasonably be said to be more in line with traditional liberalism, the most prominent example of which is Bush's prescription drug plan, but even that can also accurately be described as being more of a windfall to the pharmaceutical and insurance industries than providing value to its alleged beneficiaries.

But regardless of whether the Medicare program approaches traditional liberalism, the vast, vast bulk of initiatives pursued by the Bush administration -- including those which have led to an increase in domestic spending -- have been devoted to a wild increase of federal power, in ways and towards goals that cannot be characterized as remotely liberal. As Hunter observed:

Fiscal and other conservatives may say that they value small government, but it is a fact of the movement that when in a position to actually implement those policies, they do not. . . .

They shuffle the tasks of government around, yes; they close so called "liberal" governmental tasks such as environmental protections and citizen welfare and safety programs, while hyper-boosting "conservative" governmental tasks such as defense spending and business-based "incentives" and other sops . . . but post-Nixon conservatives have been remarkably consistent in their actual actions: increase spending; increase deficits; increase government; increase interference in citizen lives under banners of "religion" and "morality".

This describes the Bush administration's approach quite well. Bush may not be a model of Hayekian conservative theory, but he nonetheless is quite conservative in the way in which modern conservatism manifests when in power -- namely, as a movement devoted to expanding government intrusion and federal power in order to promote its own moral and ideological ends. Many self-proclaimed conservatives have now expressly embraced this so-called "large government conservatism." Bush's governing surely has not been consistent with theoretical principles of small-government conservatism, but it is also as far from liberalism as it can get.

(3) Ultimately, the claim that Bush has liberal tendencies because he has expanded federal spending and federal power ignores the fact that there are two sizable, influential and ultimately mutually exclusive factions which claim the mantle of "conservatism." One says it wants to shrink federal power, and and one wants to increase it in order to enforce conservative ends -- moral, authoritarian and otherwise. George Will put it this way:

The conservative coalition, which is coming unglued for many reasons, will rapidly disintegrate if limited-government conservatives become convinced that social conservatives are unwilling to concentrate their character-building and soul-saving energies on the private institutions that mediate between individuals and government, and instead try to conscript government into sectarian crusades.

The NSA eavesdropping scandal -- involving, as it does, an aggressive expansion of a 1990s conservative bugaboo: federal eavesdropping on Americans -- has also exposed this split. As Jonathan Alter described:

But "Snoopgate" is already creating new fissures on the right. The NSA story is an acid test of whether one is a traditional Barry Goldwater conservative, who believes in limited government, or a modern Richard Nixon conservative, who believes in authority.

In his response on Friday, Goldberg asked: "Was Nixon a liberal, or not?" There is certainly a more reasonable basis for claiming that Nixon, as opposed to Bush, had discrete flourishes of liberalism in his domestic policies -- including the creation of the EPA, expansion of social security, massively increased spending for the Great Society welfare programs, a commitment to affirmative action plans, vastly more intrusive regulation of business, the imposition of wage and price controls, etc.

But Nixon expanded federal government power for entirely un-liberal ends as well, including creating intrusive domestic spying programs, treating dissenters as criminals and subversives, whittling away constitutional protections for criminal defendants, authorizing racially divisive electoral strategies, and embracing theories of executive power and obsessive secrecy which were the (more mild) predecessors of those adopted by the Bush administration. A strong case can be made that Nixon's approach to domestic policy was ideologically mixed.

But virtually none of that is true for George Bush. It is true that Bush is unquestionably not a small-government conservative -- not in any way -- but he is even further away, much further away, from anything resembling "liberalism." His expansions of federal power are devoted to goals which are wholly alien and repugnant to political liberalism, and many of the expanded powers are neither conservative nor liberal because they are simply contrary to the basic principles of American government and well outside of the range our most basic political values.

Ultimately, Bush's ideological purity matters little. It is conservatives whose support twice put him in office, who vigorously supported him for virtually his entire presidency, who never objected to his being described and self-labeled as "conservative," and who -- with rare exception -- repeatedly claimed him as one of their own. I understand the desire to re-cast Bush as a "liberal"; he's now akin to a live grenade frantically being tossed around because nobody wants to be stuck with him in history.

But for conservatives, this effort is futile. Bush is indelibly branded in the public mind as a conservative, largely because of the unyielding support given to him by most conservatives. For that reason, his failure will almost certainly be viewed as a failure of conservatism, despite the last-minute and rather unprincipled effort by conservatives to engage in an emergency re-labeling campaign.

UPDATE: In response to my exchange with Jonah, UNC-Chapel Hill Professor Jonathan Weiler also points out: "The idea that conservatives really wanted to restrain the power of government per se is crap. Since 1980, dominant conservatism has whole-heartedly embraced government as an instrument to advance their preferred interests." Weiler's post contains substantial documentation for the proposition -- also demonstrated by Hunter -- that self-proclaimed conservatives, when in power, have focused far more on expanding federal power (albeit with different ends) than they have on restraining or limiting government power.

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