Mickey Kaus has some typically kaustic [sick] yet thoughtful comments on the Democrats’ most recent in a long series of calls for “new ideas.” These calls usually come after elections in which they did not do very well.
Kaus is entertainingly skeptical of this endeavor, and his comments are well worth reading. As you may have guessed, however, I have some reservations — not so much problems with what Kaus says, but with what he didn’t say.
He discusses the economy, welfare reform, ideological convergence, health care, international organization, but not race. Chris Lehane and others criticized the Democrats in the election for taking a hands-off stance toward Bush’s tax cuts, which they often referred to as the ignored elephant in the living room. Discussing “new ideas” and the Democrats without discussing how their base has locked them into a losing, and wrong, position on racial preferences is ignoring an even larger elephant in a smaller, or at least less populated, living room.
Kaus does, however, gleefully join the crowd piling on Cass Sunstein’s hapless OpEd warning of impending “judicial activism.” (Alas, he doesn’t link my post on Sunstein, but fortunately I’m too generous and magnanimous to hold that against him….)
The constitution isn’t a wet noodle, and some of its provisions actually protect valuable rights! Surely whether it’s dangerous for a court to overturn a particular piece of legislation depends at least in part on what the Constitution actually says about the subject. … Yes, Sunstein’s piece is that dumb! Or he thinks his readers are that dumb….
Of course, Kaus himself has been known to regard the Constitution as something of a wet noodle on occasion. For example, at the end of his Sunstein comments he links to a pre-election, November 6, 2000, column of his in which he weighs his relative fears of possible future Bush v. Gore Supreme Court nominations. The view of racial preferences that he expressed there, though perfectly unexceptionable, did not mention the Constitution, implying that the Constitution had nothing to say about them:
Racial preferences: I take the crude, unsophisticated position that preferences may have been necessary for remedial purposes, but at some point (a point that has been reached) their toxic side effects outweigh their benefits even–especially–if all you care about is ending prejudice against minorities.
His somewhat cavalier attitude toward the Constitution is better revealed by what he said about federalism, since he strongly objects to the direction of the Rehnquist court in that area:
Federalism: Bush’s big trouble spot, at least with me. The current court’s anti-Washington initiative … is especially disturbing because the conservatives have the Constitution on their side. If the Framers wanted Congress to have unlimited peremptory power, after all, they would have said it. Instead, they gave Congress power over “commerce.” That implies some sort of limit. We advocates of federal power are reduced to arguing that several unfortunate features of our founding document should simply be ignored.
This is a commendably frank, if not very appealing, position. On balance, however, Kaus acknowledged that he had more to fear from possible Gore than Bush appointees.
ADDENDUM – For what it’s worth the first paragraph or so of Kaus’s November 6, 2000, column referred to immediately above was unreadable because of a permanent and immobile pop-up ad that obliterated them. It’s sad that Microsoft makes so little money on its software that it has to blot out portions of SLATE to make room for ads.
