Conservative and Progressive Approaches: Talking Past Each Other

Conservatives tend to view policy issues across multiple dimensions. They rely on a diverse array of rules, established processes, heuristics, and principles in determining their social and political preferences. Because of this texture, conservatism in some respects is a constant internal struggle between various ideas and dispositions.

Here are some of those "conservative" principles that I think stand out:

• The rule of law is a deeply important part of a free society, and government must be compelled to execute the laws faithfully.
• The separation of powers is vital for the sustenance of the republic.
• In times of war and emergency, the executive must assume broad powers.
• Local control is preferable to national control.
• Personal honor is important.
• We should be deeply skeptical of government interference in the economy and society.
• We have a responsibility to provide charity to the less fortunate (though this usually rests at private charity).
• Freedom of conscience is an important component of a free society.
• Small government is generally better government.
• We should work to foster "virtue" in people: thrift, compassion, personal responsibility, etc.
• There is wisdom in long-surviving practices and traditions, even if we can't explain why they work.
• Rapid change is often destructive.
• "Intermediaries" separating the state from individuals are an important part of a thriving society. A robust civil society should serve in place of much potential direct interaction between the individual and government.
• Ideally, personal lives and associations should not dictate political lives and associations.
• In general, courts should defer to the "political branches," because they are more accountable to the broader public.

At its most fundamental level, conservatism is in the business of trying to reconcile all of these various principles. How does one reconcile limiting government and a paternalistic anti-poverty plan? What about Abraham Lincoln's suspension of the writ of habeas corpus and the rule of law? Or slow change and support for some of the Tea Party's more aggressive positions, like repealing the 17th amendment? The challenge is choosing which principles should be paramount in a given situation.

All of this leads to fairly nuanced takes on issues and much internal disagreement at the high-end intellectual level. It allows for the same movement to differ dramatically on something like constitutional interpretation, where you get one movement conservative (Thomas) operating on a very strict, original meaning view of the constitution, and another (Alito) doing jurisprudence very differently. It leads to disputes between libertarian populist conservatives and reform conservatives over whether government can actually solve--or at least palliate--socioeconomic problems. It causes heartburn over executive assumptions of power in a time of war. The list goes on.

This is in stark contrast with modern progressivism, which has one single lodestone: the oppressor/oppressed frame. (I'm borrowing here from Arnold Kling's three axis model.) In essentially every public policy issue, the challenge for the progressive is to determine which side is the oppressed in a given relationship, and to put one's thumb on the scale in that side's favor, as much as can be done. Everything else--processes, history, reciprocity, the rule of law, etc.--all of those things are merely tools for moving the scales. In the eyes of modern progressive ideology, they have no intrinsic value outside of the broader goal, which is to attack oppression. The only real limiting principle behind the use of these tools is political expediency; in other words, what can be done before inciting a reactionary backlash? If there are internal disagreements among progressives, it's over how to address oppression, not about its (appropriate) centrality to the worldview.

I obviously disagree with this approach to the various tools of power, but it's entirely justifiable, in a sense. Those tools largely emerged from contexts that were deeply and structurally oppressive. Do they have any intrinsic legitimacy, considering their origin? Why should we be restricted from doing what is right because the "rule of law" suggests that we may want to exercise power less arbitrarily? There are past grievances and inequalities that we can rectify; we can't be held up by abstract concepts.

The discrepancy between the conservative frame and the progressive frame result in some stark disagreements. Conservatives see progressives as utterly lawless and Machiavellian. Progressives, in turn, see conservatives as racist and bigoted. In particular, progressives see the use of the various conservative heuristics and principles as mere smokescreens to facilitate a continuation of oppressive circumstances. (And to be fair, sometimes, they are right about this.) Other progressives may see those principles as fundamentally oppressive in their own right.

There are many, many examples of disagreement between right and left where these differences are really apparent. I'll provide four.

Halbig v. Burwell: To a conservative, Halbig is a question of balancing three heuristics: the rule of law, the supremacy of the political branches, and a preference for slow change.

On the one hand, from a certain standpoint, the Halbig case is fairly open and shut. The law defines what constitutes a state, and then explicitly authorizes only those purchases made on state-established exchanges to receive federal subsidies. Moreover, earlier versions of the bill included language that allowed for subsidies for individuals who bought insurance on the federal exchange. As a rule of statutory interpretation, though, the removal of legislative language implies that the intent of the legislature was to exclude the language. Libertarian blogger Megan McArdle summarizes the situation from a right-leaning perspective very cleanly here:

... We can’t rely on memory to tell us what the intentions were, because as this episode has demonstrated, memories are extraordinarily unreliable. And the written record is extremely thin, because -- as best I can tell -- it simply never seriously occurred to any of us that states would fail to set up exchanges. 

That does not mean, as some of the law’s supporters have suggested, that we must therefore defer to the Internal Revenue Service's interpretation allowing subsidies to be offered on federal exchanges. The logic of this seems to be that Congress meant to pass a law that worked; this will make the law not work; therefore, this cannot have been congressional intent. As a friend points out, by this logic, Congress could have just written “ALL WORK AND NO PLAY MAKES JACK A DULL BOY” for 2,000 pages, and whatever the regulatory agencies did would be fine, because hey, Congress wanted the law to work. 

But you cannot run a country that way. Nor do political parties get to take a mulligan and effectively rewrite the law because they screwed up the first time. There are very good reasons that we demand that agencies hew to the law that was passed, not the law as it should have been passed or the law as a hazily shining dream in the hearts and minds of the congressmen who voted for it. 

So we have to fall back on our written memory: the legislative history and the text of the law. ...

In other words, we rely on text, because other solutions are much, much worse. Good intentions should not--cannot--supplant plain readings of text, because the alternative is arbitrary enforcement of power, violations of the rule of law, and an unpredictable legal regime.

On the other, removing the subsidies from so many recipients would be massively disruptive on a human level (violating "slow change" heuristic), and it would be a fairly aggressive judicial move, violating the heuristic of comity with the other branches.

Meanwhile, for progressives, the decision is much more straightforward: the "oppressed" actor in this instance is the person who got health insurance from PPACA. The "oppressor" is the part of society trying to take it away. Consequentialism reigns supreme here; "sloppy language" in the text and a "common sense" reading of "legislative intent" are all that the progressive Left needs to uphold the law.

Hobby Lobby v. Burwell: One more PPACA example here. This is an easier call for a conservative than Halbig, in my estimation, because most (if not all) of the heuristics point in the same direction. The Hobby Lobby case was about whether a regulation implemented by the executive branch under PPACA could compel Hobby Lobby to provide 20 types of birth control under its insurance plan. Hobby Lobby objected under the Religious Freedom Restoration Act (RFRA), saying that it was comfortable providing 16 of the 20, but viewed the additional 4 as abortifacents. Hobby Lobby contended that having to pay for the birth control was an infringement on their religious freedom.

Freedom of conscience points in the direction of religious carve-outs. Moreover, from a rule of law perspective, RFRA is actually quite clear and unambiguous. The law establishes a two-pronged test that the government must meet:

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person— 

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

Neither PPACA nor RFRA make a carve-out for the Dictionary Act, which signifies that corporations are legal persons. From this interpretation of the relevant text, the government fails on the "least restrictive means" portion of the test, and the decision is fairly straightforward, not broaching constitutional issues at all.

The principle of judicial minimalism serves as one conservative objection to this opinion, but on this issue, essentially, we were looking at two statutes in opposition to one another. Either decision would represent a fairly broad act of judicial activism; either RFRA would be weakened, or PPACA would be weakened.

For progressives, the "oppressed" actor is the woman working for Hobby Lobby who is being deprived of birth control. The "oppressor" is the corporation that doesn't want to provide birth control.

Welfare/Poverty: While some conservatives reject the idea that government should have a role in caring for the poor, conservatism in general, when practiced right, does take an interest in poverty. But a conservative discussion of poverty will drift, almost by definition, towards something that sounds a bit like blaming the victim. Conservatives often blame "culture problems" in "inner-cities" in a way that sounds almost racist. They'll also be screaming about able-bodied men (mostly) refusing to work and living on the largess of government, or "welfare queens" who bilk the system for thousands upon thousands of dollars.

Poverty is one of those areas where several conservative principles align. At one level, the conservative is simply unhappy about the wasted money (preferring low levels of government spending), and believes that poor people should simply "take more responsibility" for themselves.

On a higher level, though, the conservative sees the government handout as actually destructive to the soul. "Work" is seen as one of those things that foster virtue: responsibility, a positive work ethic, etc. Giving people money for not working is seen to sap virtue and poison the society.

Progressives, on the other hand, see the poor as the oppressed, through and through. They are victims of poor circumstances, misfortune, and, most critically, of unequal structures. The only way to address that is with money, preferably federal dollars taken from the upper-income brackets, who are the beneficiaries of this structure (the oppressors).

Border crisis: Ross Douthat's strident, almost angry column captured the underlying debate about the border crisis perfectly.

In defense of going much, much further [on immigration reform], the White House would doubtless cite the need to address the current migrant surge, the House Republicans’ resistance to comprehensive immigration reform and public opinion’s inclination in its favor. 

But all three points are spurious. A further amnesty would, if anything, probably incentivize further migration, just as Obama’s previous grant of legal status may well have done. The public’s views on immigration are vaguely pro-legalization — but they’re also malleable, complicated and, amid the border crisis, trending rightward. And in any case we are a republic of laws, in which a House majority that defies public opinion is supposed to be turned out of office, not simply overruled by the executive. 

What’s more, given that the Democrats controlled Congress just four years ago and conspicuously failed to pass immigration reform, it’s especially hard to see how Republican intransigence now somehow justifies domestic Caesarism.

The president is apparently considering executive action to do what the Congress refuses to do: to provide legal status to a large swath of undocumented immigrants. Conservatives here mostly settle on the rule of law as the governing factor; the system has a separation of powers in place, and presidents do not unilaterally craft domestic policy. More broadly, undocumented immigrants have broken the law and have, in some respects, jumped ahead of people who attempted to follow our (arcane, awful) legal system. Conservatives would find any large-scale executive action on immigration to be an extreme overreach and a violation of the separation of powers.

But again, this sort of executive overreach doesn't seem to phase progressives. What matters is that the oppressed actors--the child refugees--must be saved from their oppressors. To progressives, they are flanked by oppression on two sides: by gang violence in Central America, and by Republicans in the United States.

These are just four examples; I could write of many more. The Israel/Palestine situation is a textbook example of the oppressor/oppressed frame rising above all others. I would also argue that the burgeoning debate about college rape is a situation where women are seen as oppressed and requiring protection, to the point that we are moving in the direction of dispensing with the criminal justice system and the rights of the accused in college justice. There are many other issues where this would be the case. Simply identify the "oppressed" party in a conflict, and that's where progressivism will be.

My contention is that most of our arguments are about the fact that conservatives are using their principles and heuristics, and progressives are focused entirely on structures of oppression.

Part 2 will be a brief post of what I see as the flaws in each approach.