At the end of last week, two leading conservative commentators independently issued calls for abandoning cornerstones of the current legal order. In one column, George Will urged conservatives to give up on the idea of judicial restraint and welcome a new era of conservative judicial activism against government regulation. In the other column, David Brooks called for abandoning much of the existing social safety net, in particular programs like social security that protect the elderly. These men are not fringe figures; between them, they define much of the conservative mainstream. What they wrote deserves careful attention.
Will's column is aptly titled, “Unleash the Judges.” He calls on conservative judges to cast aside “judicial deference to elected representatives.” Will chides Gov. Romney for saying on his web site that judges should “leave the governance of the nation to elected representatives.” Once unleashed, judges will presumably have less compunction about pursuing a conservative agenda. Will seems hopeful that conservative judges will resume the path that they took before the 1930s of vigorously contesting what he calls “government abridgements of economic liberty.” Apparently, Will wants to return to the era when courts struck down laws establishing minimum wages and maximum work hours.
Brooks focuses on another set of issues. In his view, the heart of the Republican vision is the “conviction that the governing model is obsolete. It needs replacing.” The current model “once offered insurance from the disasters inherent in capitalism,” but “has now become a giant machine for redistributing money from the future to the elderly.” In other words, Social Security and Medicare stand in the way of progress.
Brooks does seem to be right about one thing. The days when conservatives stood for continuity with the past are over. As Brooks puts it, “envision comprehensive systemic change.” As opposed to President Obama’s incremental plans, he says, “the GOP vision is of an entirely different magnitude: replace the tax code, replace the health care system and transform entitlements.”
Brooks and Will sketch out, what is by design, a program to overturn well-entrenched institutions from minimum wage laws to social security. As their columns illustrate, today’s conservatives want to uproot existing institutions, using elections where possible but judicial activism when the public fails to heed their vision.
Oddly, in a certain sense, it is President Obama who is the true conservative in the sense of resisting radical change and maintaining continuity with existing institutions. It might be more accurate to call Brooks and Will reactionaries since their vision is largely defined in terms of returning to the world before leaders like Teddy and Franklin Roosevelt started creating modern American governance.
This is not the place to debate the validity of this call to turn back the clock. But no one should mistake the radical nature of the vision articulated by Will and Brooks.