Jack Hunter’s commentary today calls attention to this scene from the Elena Kagan confirmation hearings, in which Sen. Tom Coburn asks the supreme-to-be whether Uncle Sam can compel Americans to eat their greens:
I wonder what another Oklahoman, the populist conservative Willmoore Kendall, would have made of this. On the surface there is no paradox here: the conservative Coburn believes that Congress’s constitutional powers are limited, while the liberal Kagan believes federal authority extends so far as even to dictate what Americans must eat.
The problem with this is that apart from the question of how strictly the Constitution limits the federal government there is an equally important question about what institution — courts or legislatures — can best be trusted to observe those limits. Kendall would say, I think, that conservatives have allowed liberals to confuse them by implanting in their minds the idea that courts fundamentally are sober guardians of constitutional liberties while legislatures are unruly abusers of the peoples’ rights. If that’s true, then we need a very powerful judiciary to preserve our freedom. Conservatives are acutely aware of where that leads.
Americans are encouraged to believe that politics is fundamentally a matter of opinions — what one thinks about gay marriage, for example, or about the Constitution itself. For most of human history, however, politics has been less about “issues” and opinions than about the distribution of power among institutions. Today, mainstream conservatives and liberals are highly inconsistent about their institutional philosophies, however firmly they may adhere to their cultural convictions. If the voters oppose gay marriage, liberals are for the courts; if the voters support gun control, liberals are for the voters. The same is true in reverse for conservatives. Winning with respect to the issue at hand is more important than having a coherent view of institutions and power.
The upshot of this is not that either the Left or the Right stands to win the culture war. It’s rather as if two would-be helmsmen have both stepped away from the wheel of the ship while they quarrel about where the vessel ought to be headed. In their absence, the ship will still have a course, one left either to the drift of the seas or to the hands of anyone who seizes the wheel while the pilots argue. In our case, the vacuum of institutional power is filled largely by the executive branch.