The Common Law & American Democracy

I write this in response to, and in concurrence with, the views and commentary on the common law presented by Justice Antonin Scalia in his essay A Matter of Interpretation.1 He specifically focuses upon the role the common law plays in a civil law system. I seek to explore the role the common law should play (if any) in a democratic republic such as ours.

I share Justice Scalia’s view and conclusion that the common law approach American jurists adopt when interpreting legal texts "is a sure recipe for....usurpation."(Scalia, p.14.) As I will argue here, not only do I believe this, but I believe the common law approach in itself constitutes judicial usurpation. Beyond even that, I will argue that the common law theory itself is a contradiction in terms, in that the whole purpose of law itself is defeated by it.

To arrive at the conclusion that a common law approach to judicial adjudication in a democracy is illegitimate one need only examine and understand what the common law is. As Justice Scalia succinctly explains it, the common law "is law developed by the judges."(Scalia, p.4.) In England, the place from which the common law originated, judges served as agents of the sovereign—the king—vested with the power to develop law through hearing disputes between the king’s subjects and rendering decisions in those disputes. These decisions, put together, developed into one common body of law—the common law. Though resolving specific disputes between two or more parties was important, the most important function of common law judges and courts "was to make the law."(Scalia, p. 6.)

The same formula is at work in the creation of law in America: the sovereign designates agents with whom the authority to make law is vested in. The difference is that in America the people, not the king, are sovereign; and the agents vested with the authority to make law are the people’s elected representatives in the legislative and executive branches, not judges. Same formula, different components.

It is here wherein a common law approach to judicial adjudication in American democracy is illegitimate. Judges do not have the power to make law in America, as they did in England under the English common law; and the common law is judge-made law. In America the power judges do have is to apply the law, created by the agents of the sovereign, to specific legal disputes arising between two or more parties and/or "to say what the law is"2 when applying that law. To make the law and to say what the law is are two completely divergent functions.

Common law lawmaking is only legitimate when the judges creating the common law have been vested with the power to make law by the sovereign. This was the case in England, it is not the case in America. Our system of separation of powers simply does not condone judge-made law, and the common law process of adjudication undertaken by any federal judge is simply an act in trespassing across those brightly colored lines that distinguish the lawmaker from the judge.

Moreover, judge-made law is as illegitimate in our American system of democracy as it is farcical in its very essence. Technically, under a common law regime, a judicial opinion creating law is supposed to carry the effect of a legitimate, binding law through the legal principle of stare decisis, the doctrine of precedent "under which it is necessary for a court to follow earlier judicial decisions when the same points are again in litigation."3

However, to a judge eager to create a new law—one more to his liking—the controlling power of previous precedent under the principle of stare decisis is limited. As Justice Scalia explains, "[n]o rule of decision previously announced can be erased, but qualifications can be added to it."(Scalia, p. 8.) Anytime a judge does not like a relevant or controlling precedent all he need do is distinguish between the circumstances relevant in that supposedly controlling precedent and the circumstances present in the current case. After all, no two cases are ever completely identical. This ability to distinguish enables him to add new qualifications to a given precedent suitable to his sense of justice and opinion of what the law should be. If that law is not attractive to a future judge, he can distinguish further and add a qualification upon the previous qualification.

No such sense of lawlessness within the law exists in the civil law system present in American democracy (provided that is, that judges do not take a common law approach to their work). In this system law is not made through judicial opinion, and then remade over and over again until the very idea of law becomes a mockery. It is made by statute, codified into an actual legal text. Unlike a judicial opinion which applies only to a set of very specific and limited circumstances, a statute is a general rule of law immune from judicial distinctions and qualifications. As Justice Scalia explains, "it is the text of the law rather than any prior judicial interpretation of that text which is authoritative. Prior judicial opinions are consulted for their persuasive effect....but they are not binding."(Scalia, p. 7.)

One useful purpose I do see the common law providing is its possible expository value in ascertaining the meaning of legal terms or provisions crafted in the common law tradition. As former English subjects, the framers of our constitution were great admirers of the English common law, and many of its traditional provisions, canons, and terms of art can be found in the federal constitution and the various state constitutions crafted in that time period. The writ of habeas corpus, a legal guarantee enumerated in Article I, Section 9, Clause 2 in the constitution4, finds its roots in English law, as far back as the Magna Carta possibly, and was a common principle found within colonial American common law prior to independence.5 The Seventh Amendment explicitly contemplates "Suits at common law"6 no less.

For his part, Justice Scalia declares that he is "content to leave the common law, and the process of developing the common law where it is,"only questioning "whether the attitude of the common-law judge....is appropriate for most of the work that I do, and much of the work that state judges do."(Scalia, p. 13.) I am inclined to share a similar sentiment, yet I wish Justice Scalia had elaborated more on where exactly he felt the common law is appropriate to leave in place.

Regardless, though there is some question as to where exactly the common law is and should be appropriately left in place, there is no question as to where it should not: in constitutional and statutory law, where a law’s actual text, enacted via a democratic process, should and must be the definitive word; left only to be applied and clarified, but not altered or redacted by the judge. Judge-made law profanes the notion of democratic self-government, where laws are enacted by the people through their designated agents, not by a robed oligarchy.


1. Scalia, Antonin (1997). A Matter of Interpretation. Princeton, New Jersey: Princeton University Press.

2. Marbury v. Madison 5 U.S. 137 (1803) (Marshall, C.J.,)

3. Garner, B (Ed.). (2001). Black's Law Dictionary. St. Paul, Minnesota: West Publishing Co.

4. "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

5. Hall, Kermit L.. (Ed.). "Habeas Corpus". (2005). (2nd ed., New York, New York: Oxford University Press.

6. "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

Memorial Day '06

For Those Who Cherish Freedom, The Fallen Will Not Be Forgotten

President Bush Another Nixon?

National Review’s Jonah Goldberg penned a piece of couple of weeks ago musing over the similarities between the nation’s thirty-seventh president, Richard Milhous Nixon, and the nation’s current president, George Walker Bush. After perusing through the plethora of liberal characteristics present in the Nixon presidency, Mr. Goldberg concludes that though President Bush "is certainly to the right of Nixon on many issues.....at the philosophical level, [President Bush] shares [President Nixon’s] supreme confidence in the power of the state. Bush rejects limited government and many of the philosophical assumptions that underlie that position. He favors instead strong government."

I do not disagree with Mr. Goldberg’s characterization of President Bush’s conservatism as one of a "strong government" flavor. What I do disagree with is his implication that President Bush’s desire for strong government is synonymous with Nixon’s very liberal, very big government. I find very little similarities in the governing philosophies of Presidents Nixon and Bush, aside from the fact that both philosophies are products of their own unique times and that both president’s have seen the federal government as a means in achieving an end; two completely different ends mind you.

President Nixon entered office at the climax of the age of New Deal and Great Society liberalism, a time when big government was at its pinnacle. President Lyndon B. Johnson had been reelected four years earlier in 1964 riding the wave of popular support for his Great Society initiatives. His popular downfall towards the end of that term was not precipitated by any popular revulsion at big government or the Great Society, but by the course of the Vietnam War. Had it not been for Vietnam it is highly likely that vast political capital, predicated upon decisive public support, would have allowed President Johnson to more thoroughly enact the programs of the Great Society.

Conversely, President Nixon was able to defeat Vice President Humphrey in ‘68 not because he promised to shrink the federal government, but because his national security credentials lent him the credibility to convince the American people that he would end the conflict in Vietnam. The demand for Johnsonian big government was still very much alive, and President Nixon was there to provide ample supply for that demand. In President Nixon’s five plus years in office his administration created the Environmental Protection Agency and the Philadelphia Plan, pushed for wage and price controls, and appointed Harry A. Blackmun to the Supreme Court, among other items; all repugnant to any conservative.

To express dismay or surprise at this though would be naive. President Nixon presided over the nation in an age of prolonged, perpetual government expansion where political survival depended on conformity to prevailing liberal, big government persuasions. His liberal Republicanism was but a means in not only surviving in this atmosphere, but thriving in it.

Not so with President Bush. The age of Great Society liberalism has ended. The welfare state has been reduced and reformed, as has the federal tax code. The days of unfettered and appalling government expansion have subsided.

This does not mean we are exactly in an age of small government though, but rather somewhere in between Great Society liberalism and the pristine federal government of limited and enumerated powers envisioned by the framers.

Upon this reality President Bush’s conservatism is predicated. Though President Reagan was able to do much to reverse the excesses of the Great Society, he was only able to go so far. Attempts at exorcizing much of the Federal bureaucracy, including the Education Department, tried and failed. There were, and still are, too many special interests invested in a large federal bureaucratic state for efforts to diminish it to be successful.

President Bush has not tried to fight this. Instead of wasting time in trying to trim the size of the federal government in an age un-conducive to such efforts, he has tried to manipulate the government apparatus and use it for conservative ends, with the hope that by doing this the demand for big government will continue to decline.

Examples of this philosophy abound. In No Child Left Behind localities were given greater flexibility in curriculum and setting standards while also being held to greater account for reaching and meeting those standards by the federal government. Increased local control and accountability are both conservative principles.

The president’s Social Security reforms, though un-conservative on their face in that they would be exorbitantly costly, are, in fact, quite the opposite. Instead of compelling workers to surrender six percent of their income to the federal government, the president would allow workers the option to take that income and invest it in the stock market. This proposal would further conservative principle by vastly diminishing the control the federal government holds over individual’s retirement, thus empowering the individual worker.

The same idea is at work in the president’s promotion of health savings accounts, which help diminish the role government plays in health care by allowing individuals to choose among health care competitors on the free market.

The most obvious conservative attribute of the Bush presidency is, of course, his tax cuts. Tax cuts represent the epitome of conservatism in that they are based, in President Bush’s case at least, upon the belief that an individual can spend his or her money better than the federal government can.

None of this is to say that the Bush presidency has not had its liberal streaks. The prescription drug benefit, though it contained health savings accounts, was an enlargement of government entitlement spending and obligations of a magnitude President Johnson would have been proud of. The farm subsidy bill, signed into law in 2002, was a lavish government handout, no way around it.

All that proves though is that President Bush is not a perfect conservative; but no conservative is and no conservative president ever will be. What the president is is a faithful and consistent adherent to the brand of conservatism that does not try to futilely shrink the federal government in a direct sense, but instead accepts reality and uses the federal government as a means in enacting conservative ends.

It is here whereupon the notion that Presidents Nixon and Bush are identical in nature is mistaken. Yes both presidents used the federal government as a means to an end (and to pure small government conservatives this in itself precludes any president from claiming to be conservative), but the ends they used it for are completely different.

President Nixon’s ends were unquestionably liberal; they unabashedly and, in my view, recklessly enlarged the size of the federal government and, along with the similar policies of the New Deal and the Great Society, created a prevailing culture of dependency which degraded our national character and strength.

President Bush’ proposals and philosophy on the other hand use the federal government to promote conservative principles of personal freedom, ownership, and self-determination; all principles which enhance national character and strength. As Fred Barnes* has pointed out in his analyses of President Bush’s conservatism, it doesn’t matter "how big government is but what it does."

The current size of the federal government is not going to shrink, at least not for the time being. Faced with this reality it is completely compatible with conservatism to use the federal government as a means in promoting and achieving conservative ends. A large federal government is not ideal, but it can be utilized to strengthen the nation through conservative principles.

Unlike a federal government employed to advance the liberal principle of simply expanding itself ad infinitum, a strong federal government can be a tool in enhancing the strength, independence, and character of the American people, eventually diminishing popular dependency and demand for a large federal government. If following and promoting this philosophy is not conservative, than I no longer know what being a conservative really means.

*Barnes, Fred (2006, January 23). "Strong-Government Conservatism". The Weekly Standard, 11(18), 24-31.

On Immigration Reform and the President's Address

In his Monday night address to the nation the president laid out a pragmatic, rational plan to solve the mess along the southern border. This has not, nor will it, politically help the president with his alienated conservative base however, whose unrest over illegal immigration, after festering for years, has reached a boiling point. These conservatives want one thing and one thing only—an impregnable border protected by a wall re-enforced with increased border security.

This, for the most part, is what the president promised. He called for six thousand new border agents, a virtual and physical wall at designated spots, aerial surveillance, additional funding for local law enforcement, temporary deployment of the national guard, an end to "catch and release", and so forth. Since the president’s address the Senate has even passed an amendment calling for the construction of a wall along the entirety of the southern border, a provision similar to one passed by the House and something the president has indicated his support for.

But this has all been for naught. The minute, nay the second the president uttered the words "temporary worker program" any support he may have engendered among those conservatives solely interested in fortifying the southern border was squandered. If an impregnable border is the one thing these conservatives desire, then amnesty, or any policy perceived as amnesty, is one thing they absolutely will not tolerate. Opinion among this group holds that the president’s proposal is "amnesty" properly and succinctly defined. Following the address John Hinderaker of Powerline wrote that once the president "started talking about guest worker programs and the impossibility of deporting 11 million illegals, it was all over." John Mcintyre of RealClearPolitics maintained that the president "missed a real opportunity to help fix a substantive problem facing the nation which politically would have significantly improved his standing among the public and his party’s position heading into the midterm elections." Mr. Mcintyre continued that any immigration proposal without a wall is simply further evidence, to estranged conservatives at least, that the federal government is still not serious about stifling the flow of illegal immigrants across the southern border.

In fact, quite the opposite is true. Those who oppose the president’ guest-worker proposal because of its contested lack of sincerity are lacking sincerity themselves. As the president emphasized Monday evening, the only viable plan is a comprehensive plan. A plan enacting only increased security along the border would be just as feckless and ineffective as one enacting only a guest worker program.

If a genuinely secure border is to be achieved we need a wall along the southern border doubly re-enforced by security personnel/technology and a guest worker program. A physical barrier comparable to the Great Wall of China would still be no match for the waves of highly motivated, highly incentivized Mexicans trying to enter this country to make a living and enjoy a better life in America.

Those conservatives who dismiss the president’s guest worker program as "amnesty" need to get realistic. The president’s approach is not only the correct one but the most feasible one because it prescribes the proper remedy for a real, substantive problem. By allowing those illegals currently within the country to enter upon a path to citizenship we in America exhibit our refusal to let an immigrant underclass reminiscent of those which currently permeate Europe to develop in our own country. The esteemed George Will made this argument this week:

Conservatives should favor reducing illegality by putting illegal immigrants on a path out of society’s crevices and into citizenship by paying fines and back taxes and learning English. Faux conservatives absurdly call this price tag on legal status "amnesty." Actually, it would prevent the emergence of a sullen, simmering subculture of the permanently marginalized, akin to the Arab ghettos in France.

The president merits credit and praise for his effort to prevent this from happening, and to insure access to equal citizenship and status to those who come here looking for something more than what they had back home.

Though they came here illegitimately, the great majority of illegal immigrants came here for the right reasons; the same reasons immigrants from all over the world have always risked everything to come here and become Americans for. As the president eloquently stated in his address, our "new immigrants are just what they’ve always been—people willing to risk everything for the dream of freedom. And America remains what she has always been: the great hope on the horizon, an open door to the future, a blessed and promised land. We honor the heritage of all who come here, no matter where they come from, because we trust in our country’s genius for making us all Americans—one nation under God."

To those who oppose the president’s proposal: neglecting to punish those who have entered our country illegally disproportionately to their offenses is not "amnesty", it is simply the right and American thing to do. After they have paid their debt to society, illegal immigrants deserve the right to pursue the same promise all our forefathers sought when they came to this great land—the promise of freedom, prosperity, and a better life for themselves and their posterity.

Hat Tip: Daniel McKivergan

Close Down Guantanamo?

The United Nations Committee on Torture has called upon the United States to close down the Guantanamo Bay detention facility. This only echoes similar calls which have come from other international organizations and leftist entities within this country. Amnesty International labeled Guantanamo as "the Gulag of our times" in its 2005 report and Sen. Richard Durbin infamously compared Americans there to "Nazis, Soviets in their gulags, or some mad regime—Pol Pot or others—that had no concern for human beings" on the floor of the United States Senate.

This most recent call for closure, along with every other one previously made, merits a multiple-pronged response.

First and foremost, there is sparse, if any evidence that detainees are being mistreated in the Guantanamo detention facility. Sure there have been isolated incidents of mistreatment, as is inevitably the case in any detention facility of a nature roughly similar to Guantanamo. But no evidence has come to light exposing any structural or systemic existence of detainee mistreatment or torture. In fact, when detainee treatment at Guantanamo was in a much more prominent position in the public consciousness and discourse multiple congressional delegations visited Guantanamo and every member, even those who had been critical of detainee treatment there, reported that detainees were being treated considerably well.

Secondly, were the United States to close down Guantanamo what would the U.N. Committee on Torture propose we do with those detained there? Surely they don’t suggest we simply drop them off in their home countries, free to once again take up arms against the United States and our allies, the exact reason for which they were captured and detained in the first place? If we were to close down Guantanamo we would have to hold the Guantanamo detainees in an establishment identical in nature and effect to Guantanamo. Closing down the current Guantanamo would only necessitate the need to construct another Guantanamo by a different name.

Finally, instead of badgering the United States about Guantanamo shouldn’t the U.N. Committee on Torture, as well as the international community and the American left as a whole, spend its time addressing actual havens of torture such as North Korea, Cuba, Iran, etc.? If the committee is to justify its name, I am of the opinion that it ought to focus its time and energies on countries where torture is an actual policy, not on free and democratic countries such as the United States who abhor the practice and blush deep shades of red when it is carried out by Americans against national policy and standards of human rights and decency.

This report is just another frivolous waste of time from an increasingly frivolous United Nations.

Hat Tip: John Hinderaker

Comment Response

Comment- "RE: 'The End of Roe'":

i dunno about this selective killing ... if all human life is "valuable" what about the 2400 men and women who we have killed in iraq ... not to mention all those 'valuable' iraqi people we setting up for more of the same ...crazy justification and warped ethics and a deceived public makes for a dangerous society ...

peace & harmony,
elaine

My Response:

-----I have to say I disagree with equating the practice of abortion to lives that have been lost during times of war. On the one hand you are dealing with a procedure which, in most circumstances, needlessly and tragically destroys an unborn human life. Lives lost during war on the other hand, depending on whether that war is justified and/or what cause the lives were lost in the pursuit of, can be lives needlessly lost and wasted or they can be lost in the pursuit of something noble such as the freedom of others and/or the preservation of more lives in the present and future.

-----Who are these "2400 men and women we have killed in Iraq"? If you are referring to the American soldiers who have died there, as I assume you are, then we didn't kill them, the terrorists in that country did.

----"All those 'valuable' Iraqi people we [are] setting up for more of the same"? A statement like that insinuates the Iraqis were living in perfect freedom, peace, and serenity before we went there. They obviously weren't. Iraqis were being tortured and executed by the day under the previous regime, all for the purpose of insuring that regime maintained it's brutal stranglehold on power.

What we are setting the Iraqis up for is the capacity to pacify their own country and to build a stable, representative government which will insure the peace, tranquility, and the preservation of Iraqi rights. Accomplishing this means fighting terrorists who do not want to see such a government arise, which inevitably means that, tragically, brave Iraqi and American soldiers will be killed and innocent blood will be shed.

If we succeed however, those who have given their lives and have shown the last full measure of devotion to the cause of freedom will have done so so that innocent Iraqis will no longer have to needlessly lose their lives and live in a state of terror under a cruel and repressive regime, as they would have had Saddam Hussein been left in power.

I appreciate you visiting my site and sharing your thoughts Elaine. Hopefully you'll find my response illuminating and respectful. God bless.

Revitalizing the Bush Presidency: Possibilities, Realities, & Choices

The president’s low approval numbers have been the preeminent fodder for discussion in the country’s political classes for months, but especially of late. This discussion has primarily focused on two topics: how the president’s numbers have sunk so far and what he and the administration can do to reverse the decline, which has spanned nearly the entirety of his second term.

The consensus answer to the former is multi-faceted. Persistent bad news from Iraq, administration incompetence in reaction to Hurricane Katrina and the Dubai Ports Controversy, runaway federal spending, the empirical manner in which the White house has treated congress and disaffected congressional Republicans (who have thus exhibited little reluctance in increasingly criticizing the president), have all been mentioned as factors; and I would agree that all, more or less, are responsible.

The answers to the latter piece of discussion—what the White House can do to rectify the president’s sagging poll numbers—have been just as varied. Some have suggested a shakeup of the White House staff and cabinet, while others have opined that nothing can be done, the president has lost all power and influence in Washington and will ride out the remainder of his term a feckless lame duck. I dissent from this view.

I believe there are a number of actions the president can take to reinvigorate his presidency and reestablish it as a force in Washington (though I do not necessarily think the White House is not a force today). But before I enumerate these, I must first acknowledge that the task of reinvigorating a presidency in its second term is swimming against the swift and powerful current of history. Over the past century all presidents fortunate to have been elected to a second term have experienced problems; from Roosevelt, to Reagan, to Clinton, and now to Bush. Roosevelt was saved by the extension of World War II upon America, while presidents Reagan and Clinton were able to recover from the Iran-Contra and Lewinsky scandals to leave office fairly popular. The current president can do it too, but it will require several actions, at the minimum.

One of those actions, and in regards to the notion that the president needs to overhaul his staff, would be adding a few outside faces. I agree this would have a positive effect, though not a drastic one, especially within an administration that has presided over some of the most consequential times in recent history. Fatigue and burnout among the president’s staff is a reality. Some new faces, with an added, fresh perspective, would help.

But then again, this is already happening. White House Chief of Staff Andrew Card has resigned and been replaced with OMB Director Joshua Bolten, who has been given a free reign by the president to reshape the White House staff. Mr. Bolten’s scrutiny should be directed towards White House communications, an area within the administration especially in need of attention and alteration.

Following the ‘04 victory the administration phased out of campaign mode, a dire mistake in a long, tough war exhausting upon Americans’ patience, as America’s engagement in Iraq is. In the Camp David planning retreat following the 9/11 attacks, Defense Secretary Donald Rumsfeld suggested the wartime communications effort be run "like a political campaign with daily talking points. Sustaining requires a broad base of domestic support. Broad, not narrow. This is a marathon, not a sprint. It will be years and not months."1.

Why the administration has not followed such an approach is beyond me. A media hostile to the effort in Iraq, and to the president himself, is not going to tell the full story there. They have deliberately ignored the rebuilding efforts, the improvements in Iraqi civil society, the construction of a viable and functioning republic, and the heroism of brave Iraqis and Americans fighting against Islamo-fascist terrorists. It is up to the administration to talk about these aspects; a task they have been mostly negligent in so far.

In terms of American strategy on the ground in Iraq, I by no means urge the president to alter anything. In fact, I believe the current approach should be left intact. Regardless of much of the current conventional wisdom within Washington, the strategy in Iraq is indeed working, slowly but steadily. The progress is there for anyone interested to see. Altering or vacating the current approach would likely suspend that progress and aggravate the tense but stable situation on the ground.

No, it is the administration’s public defense and discussion of the effort in Iraq, not its strategy on the ground, that needs adjustment and improvement. Whether this requires a new communications team I’m not sure, but the White House needs to get serious about it’s wartime communication obligations and employ a sustained public defense commensurate to the consequential nature our effort in Iraq is. The stakes there are simply too high and the cost of failing too great to countenance a sub-par public information campaign.

With all of this said the administration’s problems extend beyond mere communication deficiencies and no communication effort on Iraq, no matter how effective it is, will cure all that ails the president’s political standing. As I already have acknowledged, public apprehension and pessimism over Iraq is the main source of the president’s political weakness, but it is not the only source.

George W. Bush prides himself on having a presidency guided by big ideals, ideals worthy of the attention and advocacy of the president of the United States. In his first term these grand ideals and issues were tax cuts, education reform, and the prescription drug benefit; with the ultimate but unexpected issue of the War on Terror outclassing all. In the second term there was originally comprehensive social security reform, which, because of entrenched interests in opposition to any reform and hyper-partisan demagoguery, flopped.

Following that the administration has adopted no new substantial domestic issue in which to undertake. As a result, the administration has been largely adrift, stuck on the sidelines and relegated to responding to events and circumstances instead of shaping them.

To rectify this, I make a few suggestions. First, complete the last real issue remaining from the president’s first term: permanent extension of the tax cuts. Accomplishing this will have two positive effects, at the very least: it will insure the continued health of an already strong economy and it will remind conservatives, who may be currently disenchanted with him, why they supported him in the first place and why he and Republicans, despite their flaws, are better than the alternative. After all, does anyone really wonder what Democrats, who are openly proud of their opposition to lower taxes, would do to the Bush tax cuts if they were in power?

Thirdly, the president needs to find one or two domestic issues in which to support and promote. One possibility is publicly pressing the importance of confirming his lower-court judicial nominees. Robert Novak has documented the senatorial inaction on many of the president’s nominees, and a little presidential publicity on the issue is what is needed to alleviate this. The state of the judiciary is of high salience among national conservatives and is a sure political winner, for the president and Republicans. More importantly, the judiciary is in need of more judges who adhere to the constitution and it is incumbent upon the president to do what is necessary to see that action is taken on his own judicial nominees.

Other issues the president could take up are tax-code reform and health savings accounts. Currently our tax-code is a monstrosity of a headache, as hours and money are wasted simply trying to correctly fill out tax returns. Simplifying the code would relieve a substantial burden upon the American economy.

In regards to health saving accounts, a little free-market reform is exactly what is required to lower the costs of health care. When consumer choice is entered into the equation, costs decrease while quality increases.

Arguments like these, expanded upon of course, are the types that the president should be making repetitively.

------------

I would like to end in much the same place in which I began. The prospect of reinvigorating a presidency in it’s second term is daunting, given historical precedent and contemporary circumstances. The president may very well enact all the measures I suggested and still experience minimal improvement in his public popularity. The situation in Iraq, far more than any other issue, will ultimately determine public perception of the president.

Though it improves over there by the day, inching closer and closer to viable democracy, the American public’s mood continues to sour. At this point, barring some unforeseeable breakthrough or development, this trend is likely to continue. As long as there is a substantial American presence in Iraq Americans’ dour outlook is likely to persist and the president’s popularity is likely to wallow in the low thirties or forties. Staying the course is and will be politically costly.

The only question then becomes whether the president is willing to trade political popularity for persistence in Iraq. Given the president’s tendency, for better or for worse, to ignore the ever-changing winds of political pressure, I believe it is clear that it is a price he is ready to pay, and has been paying. The right thing to do is not always the popular thing to do, but that does not mean it is not worth doing. This fact the president understands, and for that I profoundly admire him.

If approval numbers in the low thirties are the cost of staying the course and finishing the job in Iraq, then so be it. It is worth it.

1. Woodward, Bob (2002). Bush at War. New York, NY: Simon & Schuster.