Legal Commentary

Many thanks to Dan and company for inviting me back to Prawfs.  I am delighted to have the opportunity to participate in the Prawfs conversation. 

The first thing I have to contribute this time around is a lingering question from Barack Obama?s invocation of Ronald Reagan in an interview.  Obama stated:  ?I think Ronald Reagan changed the trajectory of America in a way that Richard Nixon did not and in a way that Bill Clinton did not. He put us on a fundamentally different path . . .?  When I heard this, I thought this was a relatively uncontroversial, true statement.  And then, of course, the controversy erupted.  The reason for the controversy, and the source, has left me with a lingering question.  Reagan, unlike his successor, did the ?vision thing,? and I can articulate central aspects of that vision:  smaller federal regulatory interference in the economy and in people?s lives, decreased use of public welfare, lower taxes, ?trickle down? economic theory, expansion of ?free trade,? promotion of federalism (particularly in limiting federal review of state criminal proceedings).  In short, Reagan forwarded a vision that involved suspicion of federal government, and deference to states and private actors.  This vision may not have given rise to a ?constitutional moment? that changed the trajectory of American in the way that Reconstruction or the New Deal did, but it did effect something of a ?New Constitutional Order,? to use Mark Tushnet?s phrasing. 

So here?s my question.  To what extent did President Clinton offer a comprehensive vision that differed from Reagan?s?  It seems non-controversial to note that Clinton did complete a number of Reagan initiatives, but in so doing, did Clinton place them within a different comprehensive vision involving, for example, how individuals should relate to the state, the role of the state in producing social welfare, etc.?  To be sure, Clinton had a very different view of the importance of civil rights, for example.  He signed Family and Medical Leave and increased minimum wages, but he also expanded the death penalty and signed the Defense of Marriage Act.  In short, I do not think he offered a competing comprehensive vision.  Perhaps I was too busy reading Wittgenstein in graduate school to notice or remember what the Clinton vision was.  Here?s what I do remember:

With regard to welfare, Clinton ended welfare as we know it, thereby completing a Reagan project to curtail social welfare programs.  With regard to ?free trade,? he completed NAFTA, another project in keeping with Reagan?s emphasis on expanding business across national borders.  With regard to taxes, he left them where he found them, attempting no comprehensive redistributive changes to reverse any inequities arising from Reagan and Bush tax cuts.  With regard to federalism, he signed AEDPA, limiting the availability of federal review of state criminal convictions, another Reagan goal.  These and other examples seem to suggest that Obama was entirely correct to say that Regan changed the trajectory of America in a way that Clinton did not.  Moreover, he could have added that Clinton did not offer an alternative vision of America, opting either to complete Reagan?s vision or to live comfortably within Reagan?s shadow.   

To the extent that Hillary Rodham Clinton is running on the accomplishments of her prior quasi-co-Presidency, is she not running in the shadow of Ronald Reagan?s vision?  Perhaps living in Reagan?s shadow (and the Republican ?revolution? of 1994) is inevitable for all of us given the politics and institutional situation in which we find ourselves.  The Republican primary candidates, for example, were falling all over themselves to invoke Reagan (especially Mitt Romney), even debating at his library.  And with the controversy over Obama?s statement, it seems that Reagan casts a shadow that other former presidents do not.  We are asked to be for or against Reaganism, but if we are are "against Reagan," (as I am, though that fact is entirely irrelevant to my point) what are we for?  This seems to require us to articulate a competing vision.

To use William James from his Pragmatism lectures here, I would argue that politics is ?to a great extent that of a certain clash of human temperaments.?  Those temperaments can be manifest through guiding ways of seeing how the American people should be organizing and implementing their future.  (The role of what I?m calling vision is something I?ve written about here).  There is no requirement that a President articulate a vision for an entirely new trajectory, and often that may be neither possible nor desirable.  If one seeks more comprehensive change in the trajectory of our political lives, however, it would seem one needs to articulate a more comprehensive vision of where we should be going as a nation.  An amalgam of specific policy proposals is not a vision.  This is, more than anything, the defining difference between the two democratic candidates.  Clinton has the temperament of one who seeks incremental changes within a comprehensive way of seeing the world she neither creates nor defines, whereas Obama has the temperament of one who seeks to change how we look at the world.  Changing how we see the world, which is to change the trajectory of America, is a far more difficult task than performing ordinary politics in the shadow of someone else?s defining vision.