In an earlier issue lamenting Europe’s severe crisis of confidence, I noted the premise outlined by George Weigel’s great book, The Cube and the Cathedral, which is that, ultimately, the underlying constitutional debate in Europe must answer the following question: Is it possible to construct and sustain a democratic political community absent the transcendental moral reference points for ordering public life that Christianity has historically provided? In other words, who are we? Well, the recent German elections gave us clear new evidence that this debate has barely been engaged, much less headed toward resolution. The muddled electoral outcome that resulted in a left-right stalemate shows that Germany is, as Jim Hoagland remarked, “a country that fears the future, or at least the painful choices that the future will bring”, and “reinforces a general weakening of parties and politicians across Europe that surfaced in the French and Dutch rejection of the European Union constitution earlier this year”. It goes without saying that, when such a traditional linchpin in the crucible of Western culture and thought is so fearful of the future and so thoroughly confused about who they are, this does not bode well for Europe, the U. S., or the world. 

For the past couple of years, we political junkies have watched, some with varying degrees of amusement, many with disdain, as Travis County District Attorney Ronnie Earle pursued partisan retribution against those who would have the temerity to exercise their First Amendment right to free political speech by exposing the voting records of duplicitous legislators in Austin. To most casual observers of the political scene, this has probably been regarded as a side show, characteristic of the pettiness of electoral politics and devoid of any significant principled issues at stake.

However, with the recent indictment of the State’s largest business organization, the Texas Association of Business (TAB), by a Travis County grand jury (at Earle’s instigation and at taxpayers’ expense), this political intimidation and witch hunt has now reached the point of absurdity that should be given serious attention by those who value their constitutional right to political speech. For what we have here is clearly a case of a district attorney interpreting a state law to limit the freedom of speech of a private association.

In 2002, TAB created a scoring system to inform the people of Texas about the truth of the voting records of their elected officials in Austin, many of whom for some time had boasted in their home districts about their support for policies that encourage jobs, economic growth, and prosperity, but whose true legislative voting records belied their representations. This process was scrutinized as to its compliance with election law and approved by attorneys with substantial experience in the field, and at no time did the organization endorse any candidate or make any direct political contribution to, or campaign expenditure for, a candidate.

The question at issue here is whether or not there will continue to be voices independent of the mainstream news media and the “spin machines” of the elected officials that can directly and perceptively inform the voting public on the true voting records of their elected representatives without the threat of partisan, taxpayer funded intimidation.

In the interest of full disclosure, I should tell you that I am a former Chairman of the Board of TAB and continue to serve on its Board of Directors. However, regardless of whether or not we are members of TAB and/or its more than 200 affiliated local chambers of commerce, or even whether or not we are sympathetic to its mission, we should recognize that the principles involved in this case are critical not only to the viability of a venerable and leading voice for public policy that enhances the State’s economic development, but to the viability of the principles of our republican system of government, and that this organization and these principles deserve our support in this battle.

As I write, John Roberts is about to begin his tenure as the 17th Chief Justice of the U. S. Will he preside over what can be described as the “Roberts Court”? This remains to be seen, but the critical next step is for President Bush to solidify Roberts’ leadership with a bold appointment of another Justice in the same mold or, even better, one that is more of a “movement” natural law enthusiast similar to Clarence Thomas. Would this result in the use of the so-called “nuclear option” in order to break an expected Democratic filibuster? Maybe, but bring it on. If not now, when?

After the Roberts hearings and the confirmation vote, the bright dividing line in competing judicial philosophies is absolutely clear. The Senate Judiciary Committee Democrats on the left of this line were totally revealing on this point, as evidenced by their inquiries. Listen to Richard Durbin: “…beyond loyalty to the law, how do you view the law when it comes to expanding our personal freedom?” Beyond loyalty to the law, Sen. Durbin? Are you kidding? (I wish that had been Roberts’ response.) And Dianne Feinstein, in announcing her “no” vote, said she was disappointed when, with respect to the issues surrounding end of life decisions, she asked him how he “feels” as a husband, father, or son, and received only a “detached” answer. (Much like we should expect of a judge, Sen. Feinstein?). These inquiries epitomize the jurisprudence of the left and the captivity of the Democratic Party to it—total constitutional incoherence.

In fact, the most striking phenomenon throughout the Roberts confirmation hearing was the degree to which it seems that our entire public discourse is being driven by the fealty to complete personal autonomy and a generalized “right to privacy”, the concept that was created by the Supreme Court out of “the emanations and penumbras” of the Constitution, in other words, out of whole cloth, and which later drove the Roe v. Wade decision. As a result, as so well noted by Hadley Arkes in his book, Natural Rights and the Right to Choose, the Democratic Party has become the party of the courts, has completely prostituted itself to the privacy/abortion lobby, and demands that the judiciary continue to alienate itself from a central mission of the jurisprudence of a republic—the protection of human life.

As a follow up to one of Sen. Durbin’s questions on loyalty to the law, Roberts made an instructive statement. He said that he had been asked, “Are you going to be on the side of the little guy?”, and his answer was, in effect, that whether the little guy or the big guy wins a case will depend on which one the Constitution says should win, because his loyalty is to the Constitution. This is a refreshingly direct affront to the philosophy of John Rawls and his A Theory of Justice, the liberal “bible” of distributive justice for almost forty years. You want to know whether John Roberts will preside over a “Roberts Court”? He will if he has a sustained majority on the Court for the point of view embodied in his answers to Durbin, Feinstein, Schumer, et al, and this is why it becomes even more imperative that Bush follow up boldly on this once in a lifetime opportunity to transform our jurisprudence.

There is now a second event to be added to the one on 9-11-01 that will dominate George W. Bush’s place in history, dictating as it will the future of “small government conservatism”, the concept of federalism as we have known it, and as a result, the future shape of the Republican Party. No less an authority than Bill Clinton has remarked that the aftermath of Hurricane Katrina will force a debate on three questions: (1) what is our obligation to the poor?, (2) what is the role of government?, and (3) how do we pay for it? He is correct, and the answers will determine the future of the electoral revolution began by Ronald Reagan in 1980 that has been sustained for 25 years.

Those first two days after Katrina landfall of images outside the New Orleans Superdome—the teeming masses of the primarily black, poor, and dispossessed that have reportedly been “seared” into the memory of Americans—should be a condemnation and refutation of forty years of the Great Society social engineering experiment, images of big government dependency that should also be a wake up call to finally bury this experiment on the ash heap of utopian fantasies. Will it be so? We will know very soon. It’s all about expectations, their management, and the choices we make, on two levels.

On the first level, the New Orleans restoration, the President has set the expectation level pretty high with his statement that “there is no way to imagine America without New Orleans; this great city will rise again”. The added question on this point, however, is what kind of New Orleans? To this I simply say that no rational investor, public or private, should invest a nickel in the restoration of this clearly dysfunctional city under the jurisdiction of current management. We should have seen enough incompetence and corruption, and regardless of how much or how little of the city is restored, there should be a trusteeship appointed to manage its affairs until there is satisfaction on the part of the public investors that it can be responsibly returned to local elected officials, after a new election to determine who those will be. Nor should anything but the minimally necessary public infrastructure be rebuilt that cannot be privately insured. Let’s put an end to the moral hazard of government indemnity and subsidy for below sea level homes and businesses.

As to the second level, the future of disaster response, in the wake of 9-11 and the creation of the Department of Homeland Security, performance expectations have been totally disconnected from reality and deliverables. Our system of federalism doesn’t contemplate a primary role for the Federal government in natural disaster preparedness and recovery, nor should it. Large public sector bureaucracies are still bureaucracies, with all the inefficiencies, perverse incentives, and biases against decisiveness that come with that designation. They are by nature risk averse, not decisive. As Daniel Henninger has so well noted, the forces that have caused the deterioration of performance across the public sector spectrum, from education to welfare to disaster recovery, are now eroding the one most essential function of government—providing for the citizens’ personal security. It follows that the one thing we don’t need is more of the same in response to this disaster. So it’s time to choose, and the electoral base that has sustained the Republican revolution for the past 25 years will be watching.