Expanding the Boundaries of the Possible: The Mandate
Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.
Jack Balkin has a piece on The Atlantic that didn’t get the attention it deserved. Called From Off the Wall to On the Wall: How the Mandate Challenge Went Mainstream, the piece focuses on how legal arguments move from the fringe to common sense.
The changing perception of the individual mandate is an example of one of the most important features of American constitutional law — the movement of constitutional claims from “off the wall” to “on the wall.” Off-the-wall arguments are those most well-trained lawyers think are clearly wrong; on-the-wall arguments, by contrast, are arguments that are at least plausible, and therefore may become law, especially if brought before judges likely to be sympathetic to them. The history of American constitutional development, in large part, has been the history of formerly crazy arguments moving from off the wall to on the wall, and then being adopted by courts. In the process, people who remember the days when these arguments were unthinkable gape in amazement; they can’t believe what hit them.
I’d go farther, and suggest that this is an example of the one of the most important features of American politics. But the sad thing is that both political science and our general political discourse tends to ignore these questions. Instead, they ask: (given the boundaries of what’s possible) how is choice made? But the question of what is possible is far more important than the choice itself. As political scientist E.E. Schattschneider reminded us a long time ago, “The definition of the alternatives is the supreme instrument of power,” yet we’ve rarely listened.
Balkin has been asking these more important questions for some time. I’ll just sketch the argument here.
The basic idea is to understand the roles of several key actors.
1) Intellectuals. The role of intellectuals is to develop ideas that are considered off the wall. Conservatives have long understood this which is why they built an infrastructure that allows intellectuals to do this and that creates networks among them. These have to be willing to do so without worrying about their acceptability, or they will simply be reinforcing the status quo. (This is why tying think tanks and the like too closely to either politicians or funders is a bad idea.)
2) Social movements. Movements are one of the most important drivers of change, but they work long-term, through cultural change, that is, “from the bottom up”. Obviously, conservatives were mobilized against the mandate, but Balkin argues that social movements work on a much longer time line. There was not enough time to move arguments that the mandate was unconstitutional from the fringes to an acceptable legal claim this quickly.
3) Political parties. When a party gets behind a claim, it moves it quickly to ‘on the wall.’ “[W]hen an entire political party gets behind a constitutional argument,” Balkin says, “almost by definition the position has become mainstream.” Needless to say the unity of the Republican Party makes this a lot easier.
4) Media. The media tends to reflect the political parties. That is, if one party makes a claim, the media will treat it seriously. This is true for institutions like Fox News, but it’s also true for the media in general. Journalistic conventions don’t allow the media to challenge these sorts of claims, when they are taken seriously by one (or both) of the parties. This has a tendency to reinforce the role of the parties. (Balkin here parallels the arguments of media scholars – see for example Jay Rosen’s classic post detailing Daniel Hallin’s arguments, here.)
5) The Courts. Once a position has become ‘reasonable,’ judges are willing to give them a hearing, and once lower courts, especially circuit courts, are willing to accept an argument, this lends respectability before the Supreme Court (not to mention beyond the judiciary).
Of course, if you were to look only at the choices of courts, or the Court, ideological splits would go a long way towards explaining those choices. It’s true that the president, Congress, or the public have no formal ability to reverse decisions. But judges care about what’s reasonable, they take things for granted, and they reconsider things they previously took for granted.
I do have one objection. Balkin’s argument largely avoids confusing democracy as a legitimation with democracy as an explanatory concept. But see here:
When establishment politicians — who, after all, have to stand for election and don’t want to be thought out-of-touch to their constituents — get behind a constitutional argument, they often help move it forward quickly.
The problem here is that there is plenty of reason to think that politicians aren’t driven by such concerns. There are often large gaps between public opinion and policy, both foreign and domestic. The Republican Party has demonstrated that marching away from the center doesn’t automatically lead to electoral defeat. Reasonableness is an elite phenomenon. The belief that one can infer popular beliefs from institutional outcomes (i.e. ‘democratic efficiency’) is generally false.