Instead, he repeats a widespread myth of Reagan’s economic policies:

“Paul Volcker, who served as chairman of the Federal Reserve during most of the Reagan years, commented in the film about the economist Arthur Laffer’s famous curve, which, incredibly, became a cornerstone of national economic policy. ‘The Laffer Curve,’ said Mr. Volcker, ‘was presented as an intellectual support for the idea that reducing taxes would produce more revenues, and that was, I think, considered by most people a pretty extreme interpretation of what would happen.’”

Call it the Legend of the Laffer Curve:  Reagan’s policies were founded on the Laffer curve; the Laffer curve argues that tax cuts increase revenues; that tax cuts increase revenues is ridiculous; therefore, Reagan’s policies were ridiculous. The Legend has been circulating since before Reagan even took office.

It is also a fiction. Sometime FrumForum contributor Brian Domitrovic, in his book Econoclasts, went through the trouble of actually studying the history of supply side economics, and found, for one thing, that Laffer himself may never have even drawn the curve that bears his name. According to the well-known story, Laffer scribbled the curve on a napkin one night in the 1970s while having dinner with Dick Cheney and supply side evangelist Jude Wanniski. Laffer himself, however, has no memory of the incident. Further, the dinner took place at a restaurant that served linen napkins, hardly suitable as makeshift chalkboards. In any event, Laffer never presented the curve as the linchpin of his arguments for tax cuts.

Nor did supply-siders argue that tax cuts would increase government revenue. (They did argue, quite plausibly, that the loss in revenue would not be dollar-for-dollar: To the extent that tax cuts reduce unemployment, they will at least reduce government outlays in the form of unemployment insurance payments.) In a 1974 Wall Street Journal op-ed advocating tax cuts, published in the same month as the famous Laffer curve dinner, Wanniski acknowledged that tax cuts would reduce revenue. His point regarding ensuing deficits was more subtle: Tax cuts, combined with tight monetary policy, would reduce the real cost of government deficits by increasing foreign demand for dollars and thereby reducing the government’s borrowing costs.

Crucially, supply siders did not simply advocate tax cuts. As Domitrovic emphasizes, they argued for a mix of both fiscal and monetary policies, namely, restrictions in the money supply (contra, incidentally, the advice of free market paladin Milton Friedman) combined with tax cuts. These policies, they argued, would cure stagflation, or the combination, once thought inconceivable, of high unemployment and high inflation. This was precisely the mix advocated by Nobel winner Robert Mundell, who, Domitrovic discovered, had not only inspired the Kennedy tax cuts, but had blessed Wanniski’s editorial prior to its publication.

Reagonomics, then, was not the crank tax cutting doctrine that the Laffer Curve Legend would have it be. It was based, rather, on an academic theory, albeit a controversial one. What’s more, it was spectacularly successful. Federal Reserve chairman Paul Volcker, whom Reagan supported despite irate calls for his head, held the money supply steady, after it had been inflated throughout the 1970s. Meanwhile, the Economic Recovery Tax Act slashed marginal tax rates. Whatever else may be said of these policies, it is undeniable that after they were implemented both inflation and unemployment fell dramatically. Stagflation was cured. Further, the real costs of the government deficit did indeed drop. With interest rates plummeting, the government could borrow like it had never had before. It was, in effect, a free lunch.

How then did supply side economics become so disreputable? Partisan politics no doubt have much to do after it. After thirty years, however, those can no longer explain how a high-minded columnist such as Bob Herbert still falsely derides Reaganomics. As Domitrovic shows, the culprit is Wanniski himself. A combustible personality, he introduced the napkin tale (and others) years after the alleged fact, which critics pounced upon as evidence of supply side economics’ irresponsibility. Wanniski worked tirelessly for the supply side cause, but also made it an easy target.

Now, none of this is to say that the supply side policy mix is right for today. It certainly does not mean the current GOP tax-cutting gospel should be accepted. It does, however, suggest a different diagnosis of today’s economic ills. In the Bush-Obama years, the country abandoned the successful tight money policies of the Reagan, Bush I, and Clinton years. Difficult as it may be to accept, it may be that it is the abandonment of a full one-half of the supply side doctrine that has brought us our current woes.

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Predictably enough, leftwing groups are gleefully crying, “Gotcha!”  What, after all, could more corrupt than to fail to disclose $686,589 in income? This post at ThinkProgress already has almost 1,000 comments, many calling Thomas a criminal and demanding his impeachment.

Sorry, internet posters, but you’ve been suckered, as has the LA Times. The reason the Times’s headline sounds so ominous is that the words “failed to report income” usually mean that someone didn’t pay his taxes — in other words, he was defrauding the government.  Not until the sixth paragraph does the Times volunteer any information what these “financial disclosure forms” are. (Indeed, the reporter never fully explains why these forms are required and what purpose they serve.) Instead, the reader has to guess for himself what Justice Thomas’s infraction really was. His enemies — as Common Cause no doubt expected when it planted the story — wasted no time jumping to the conclusion that he had done something wrong.

A more careful review shows that this was about the most venial lapse imaginable.  The Times does not even describe Thomas’s lapse correctly.  Here is his 2006 Financial Disclosure Report. On page 2, Thomas checks the box “No Reportable Non-Investment Income” for his wife. The form states that Thomas was not required to give amounts. Yet the Times implies that Thomas failed to report $686,589 in income. Strictly speaking, that is true. But Thomas had no obligation to report $686,589 in income!  At most, he was required to report merely that his wife had income, and identify the source.

Meanwhile, the Times does nothing to illuminate the gravity — or lack thereof — of the infraction. Instead, the Times states that judges are “bound by law” to disclose spousal income. True enough, but what law is that?  As it turns out, financial disclosures are required of federal judges under the Ethics in Government Act of 1978.  Congress delegated to the Judicial Conference — i.e., a committee of federal judges led by the Chief Justice — responsibility for collecting the forms and making them available to the public. In other words, the judges themselves enforce the transparency requirements suggested by Congress. If the Judicial Conference learns of Thomas’s lapse, what do you think it’s going to do?  Not even Common Cause can discern any harm to the public, nor could the Judicial Conference mete out any discipline in any case.  All that that the Conference could do is ask Thomas to correct his disclosure forms, which he has already voluntarily done. Problem solved.

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If legislation – even legislation that will never pass – is supposed to serve the public good, rather than simply express hostility to big government, then automatic sunsetting is a bad idea.  For one thing, it won’t actually achieve its objectives.  Faced with automatic sunsetting, Federal agencies will simply mark on their calendars to renew their prior regulations every two years.  Individuals and businesses, meanwhile, would need to confirm every two years that the regulations upon which they had previously relied remain in effect.  Automatic sunsetting would do little more than increase the cost of government and the compliance costs of the private sector.

The result would be worse if Paul’s proposal actually did cause some regulations to expire.  Take an example from my own field, tax law.  One of the first questions taxpayers face when they start a business is how the profits are going to be taxed.  Will all the taxable income flow through to the owners?  Or will the business be taxed as a separate entity?  Or will it be a mix of both?  These questions used to be decided by a slippery set of factors largely made up by the courts.  In 1997, however, the IRS issued regulations that sensibly allow businesses to decide for themselves how they wish to be classified for tax purposes.  These regulations made taxpayers’ lives easier and, incidentally, made a lot less work for lawyers.

Now suppose that Rand got his way and these regulations automatically expired.  Businesses that had relied on a certain classification would suddenly not know how they would be taxed.  They would scramble to figure out what rules applied and what relief (if any) they could obtain.  The IRS, meanwhile, would need to figure out what rules it was going to enforce.  The only ones who would profit from the ensuing confusion would be the lawyers.

A certain type of libertarian might react: “So what? I don’t like the Tax Code to begin with. Why should I care that Congress makes it even less efficient than it already is?” Call this attitude libertarian nihilism.  The libertarian nihilist hates government so much that he’d rather see it malfunction than work as well as it possibly can.  (Perhaps the libertarian nihilist thinks that the less popular government becomes, the easier it will become to roll to it back. On the contrary, lack of trust in government, paradoxically enough, only increases the clamor for more.)  By definition, the libertarian nihilist wants to make people worse off just to spite the modern state.

Paul’s proposal, wittingly or unwittingly, is an example of libertarian nihilism.  Government agencies such as the IRS do not create their regulatory powers by fiat.  Rather, they get their powers from statutes passed by Congress.  Arbitrarily kill off as many regulations as you like and you’re still going to have statutes on the books regulating all manner of private activity.  The only thing different will be that the interpretation and consequences of those statutes will be even less clear than before.  In proposing to abolish regulations issued pursuant to Congressional mandate, Paul is assailing a symbol of modern government rather than a cause.  He is also conveniently scapegoating another branch of government while giving his soon-to-be fellow Senators and Congressmen a free pass.

Now, perhaps Paul does not mean that all regulations should sunset after two years. Perhaps he would allow regulations that merely interpret statutes to remain in place but force those that fashion brand new rules to expire. There is a legitimate worry here: by delegating law-making power to unelected officials, Congress is abdicating its legislative responsibilities and attenuating the democratic legitimacy of our government.  The problem, however, is that it is notoriously difficult to define where interpretation ends and legislation begins.  The Supreme Court, afraid that it can’t draw the line with adequate clarity, hasn’t enforced the “nondelegation doctrine” (under which Congress cannot delegate its Article II powers to another branch of government) in 85 years.  A blanket attack on all regulation won’t work.  If Congress wishes to rein in the administrative state, they will have to do it piecemeal – which is exactly the position that they’re in already.

Take Kennedy’s point that major corporations uniformly laud diversity.  Kennedy writes:

[I]n the 2003 University of Michigan affirmative-action cases . . .  65 major companies, including American Express, Coca Cola, and Microsoft, asserted that maintaining racial diversity in institutions of higher education is vital to their efforts to hire and maintain a diverse workforce.

Just because businesses support diversity, however, does not mean that they do so freely.  Businesses ordinarily have different philosophies when it comes to fostering an efficient workforce.  Some encourage vacations, others frown on them; some prize collegiality, others internal competition; some sponsor social activities outside of work, others don’t bother.  Likewise, other things being equal, you would expect some businesses to value diversity and others to be indifferent.

In reality, large corporations are of one mind: diversity is great!  It is surely not the undeniable value of diversity that inspires such unanimity.  In a diverse environment, for example, employees may hesitate to speak out lest they inadvertently offend their colleagues.  They might fail to criticize a presentation for fear of not being thought supportive enough, or they may evaluate subordinates less harshly than they deserve.  A culture of reticence may then pervade the workplace, which in turn may make cooperation more difficult.  For these reasons, it is just as possible that diversity undermines productivity as enhances it.

Though Kennedy does not say so, the reason that big businesses champion diversity is that they effectively don’t have a choice.  Title VII of the Civil Rights Act prohibits employers from discriminating based on race (among other categories). These days, however, employers virtually never intentionally discriminate against a particular group.  Anti-discrimination lawsuits nonetheless live on because the Supreme Court has fashioned techniques (the McDonnell-Douglas burden-shifting formula, the Griggs disparate impact theory, and others) whereby plaintiffs can prevail even without any direct evidence of intentional discrimination.  These techniques (elaborated in more detail by the EEOC here and here) do not permit companies simply to make color-blind hiring decisions.  On the contrary, if they wish to avoid expensive anti-discrimination lawsuits, they must (among other things) build a record of supporting minority hiring and promotion.  In other words, they have to celebrate diversity.

In this way, the diversity rationale becomes politically self-perpetuating.  If you need to prove your commitment to diversity, what better (and virtually costless) way to do so than to join a “friend of the court” brief defending the constitutionality of affirmative action before the Supreme Court?  Not surprisingly, that’s exactly what 65 companies did in the Michigan affirmative action cases.  In her majority decision, Justice O’Connor naively cited this very brief for the proposition that “major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”  Thanks to Justice O’Connor, when threatened by employment discrimination lawsuits, those companies can now retort that they are so committed to diversity that they intervened in order to save it against constitutional challenge.

Individuals and private associations face analogous pressures to celebrate diversity.  They may be free under the First Amendment to think and say what they want, but the social costs of being perceived as having unacceptable views on race are immense.  Hence, individuals often take an aggressively anti-racist position just to prove that they are not racist.  In his book, Private Truths Public Lies, Timur Karan devises an ingenious model to explain why public opinion favors affirmative action even as most people privately detest it. To simplify, individuals will adjust their publicly expressed beliefs based on what they perceive public opinion to be.  The more public opinion shifted against racism in the 1960s and 70s, the more individuals who felt comfortable (or compelled) to support preferences, which in turn caused more and more individuals to add their support as well.  The “equilibrium” public opinion ended up being far more supportive of preferences than people would privately prefer.

Randall Kennedy correctly seems to assume that affirmative action is only grudgingly accepted.  Kennedy writes that the diversity rationale “minimizes . . . anger,” “frames affirmative action” in palatable ways, and “facilitates evasion of prickly subjects.”  In other words, diversity makes the discrepancy between private preference and public opinion more bearable.

Unfortunately, Republicans have become a party numerically dominated by whites at a time when, as Kennedy notes, whiteness has become uncool.  Is there any way for Republicans to become more socially acceptable?  Surprisingly, yes: Republicans could revert to the old-fashioned compensatory justice rationale for affirmative action. As Kennedy states, without elaborating, the rise of the diversity rationale “has not been costless.”  One of those costs is that African-Americans get shortchanged.  Colleges and employers can now create a “diverse” environment by promoting individuals of many different races, even though they have no connection to slavery or Jim Crow. Another cost is that those harmed by diversity-based affirmative action are disproportionately middle or working class.  It turns out that diversity does not hold back the wealthy and privileged.

For these reasons, Republicans have plenty of daylight wherein they can acknowledge the need to rectify the legacy of racism and slavery, yet oppose the excesses of the affirmative action that voters privately dislike.  Republicans, that is, can oppose affirmative action based on diversity, but support affirmative action as just compensation for native born African-Americans.  This is the position taken by Senator James Webb. If being pro-justice and pro-fairness is good enough for a Democrat, it should be good enough for Republicans.

Not too long ago, Chemerinsky was egging on activists incensed that the Supreme Court, in the Citizens United case, thought corporations had free speech rights too.  Here, for example, Chemerinsky was asked:

Doesn’t giving corporations the same Constitutional protections as humans mean we are creating a society which will look more like a corporate utopia since they can outspend individuals in Washington?

And:

I don’t understand why corporations need Free Speech rights in elections if all the human beings which comprise what we call a “corporation” already have full Free Speech protections under the First Amendment.

In response, Chemerinsky questioned whether corporations should have any constitutional rights at all:

Certainly, from the Originalist perspective, corporations would not be protected by the First Amendment or any of the other rights in the Constitution. Yet, a long time ago the Supreme Court went down the path of giving corporations some, although not all, Constitutional rights.

In a later op-ed, Chemerinsky left no doubt where he stood.  The Supreme Court’s holding that corporations have the same rights to spend money on political speech as individuals, he wrote, is right-wing “judicial activism.”

At the same time as Chemerinsky has been inveighing against constitutional rights for corporations, however, he has been assisting ACORN to vindicate its constitutional rights. And who are the plaintiffs in ACORN?  You guess it: three ACORN-affiliated corporations. These three corporations have been arguing in court that by cutting off their funding, Congress passed an unconstitutional “Bill of Attainder,” or punishment of particular individuals by a legislature.  Did Chemerinsky and his allied lawyers in the case dismiss ACORN’s claims as preposterous because, after all, the three corporations are just legal fictions and not real people?  Of course not.  On the contrary, they were all too happy to rely on a Second Circuit precedent holding that the Bill of Attainder Clause protects corporations too. Indeed, as it happens, the Second Circuit Court of Appeals is the only one of thirteen federal appellate courts to have reached this holding.  It is almost certain that, as a matter of litigation strategy, ACORN chose to bring its suit in the Second Circuit for that very reason.

In short, everyone believes in constitutional rights for corporations, at least when it suits his purposes. Even when it doesn’t, everyone should believe in constitutional rights for corporations. It is impossible to be engaged in political debate in the United States without encountering someone who feels strongly that corporations are uniquely malevolent or dangerous.  To be frank (and without denigrating those who have thought about the nature of the corporation with more care), such people seldom have any rational reason to loathe corporations. In the movie Team America, Matt Stone and Trey Parker wonderfully pilloried anti-corporation hostility when they have actor Tim Robbins denounce corporations for sitting “in their corporation buildings” and being “all corporationy.”  An actual reason to hate corporations turns out to be elusive.

After all, a corporation is nothing but a convenient way for individuals to coordinate their activities and achieve some common goals.  Some people, to be sure, can abuse the arrangement, but that’s true of any organization.  And, of course, some people get together to achieve ends that are immoral, but that’s always going to be true.  That they can organize as a corporation (or as a partnership, or limited liability company, or an unincorporated association, or any other kind of entity) does not magically introduce some additional, unique element of evil.

Just ask ACORN.  They organize as a network of corporations because they have found that that’s the best way to achieve their goals of seeking justice for the poor. If Congress singles ACORN out for punishment, they’re not just punishing some fictitious entity with (as Justice Stevens wrote) “no consciences, no beliefs, no feelings, no thoughts, no desires.” They’re punishing real people, just organized in a particular way.

Corporations are people too. Even Erwin Chemerinsky knows that.

At the same time, New York is not replacing the repealed provisions with revised statutes that could pass constitutional muster.  That is unfortunate, for the cases overturning anti-loitering laws deserve some pushback from legislatures.  The judicial campaign against anti-loitering laws has often been heedless of the public’s interest in being free from chronic public nuisances.  In Papachristou v City of Jacksonville, for example, Justice William “Wild Bill” Douglas wrote an embarrassing panegyric to the value of wandering and strolling:

These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.

All very well, but there is also a value in feeling safe when one goes out in public.  Streets rife with vagrants or panhandlers are also streets that ordinary people avoid.  When the disorder becomes chronic, those who can afford to flee the city do so, leaving those who can’t to suffer all the more.  With due respect for the late Justice Douglas, there are few silences more suffocating than that of an abandoned downtown.

To their credit, the cases striking down provisions of New York’s anti-loitering statute have acknowledged the interests of ordinary city dwellers.  The court that ended up voiding New York’s anti-begging provision poignantly described the evils of panhandling:

[B]eggars tend to congregate in certain areas and become more aggressive as they do so. Residents are intimidated and local businesses suffer accordingly. Panhandlers are said to station themselves in front of banks, bus stops, automated teller machines and parking lots and frequently engage in conduct described as “intimidating” and “coercive.” Panhandlers have been known to block the sidewalk, follow people down the street and threaten those who do not give them money. It is said that they often make false and fraudulent representations to induce passers-by to part with their money.

Nonetheless, the court held, New York’s statute violated panhandlers’ First Amendment right to engage in expressive conduct in a traditional public forum. The Procrustean categories of First Amendment doctrine contrast strikingly with the complexity of the problem that the anti-begging statute addresses, namely, how to preserve a safe urban environment. The presence of panhandlers seriously impedes the freedoms of city residents, yet, in the court’s view, those freedoms must still lose out to the supposed expressive freedom of beggars.

Fortunately, the decisions striking down anti-loitering laws have never held that all anti-loitering or anti-begging statutes are inherently unconstitutional. As Robert Ellickson of Yale Law School has argued, if an anti-begging statute prohibits panhandling only in certain zones, and leaves beggars free to beg in other areas of the city, it could survive constitutional attack.  Such a statute would create safe havens for the public, particularly in downtown areas that suffer the most from chronic vagrancy.  Likewise, the Supreme Court has stated that anti-loitering statutes are not necessarily void for vagueness if the prohibited conduct has a harmful purpose or effect, such as (perhaps) harassment of pedestrians.  Thus, anti-loitering statutes do not have to be scrapped entirely.  They just need to be better crafted.

Of course, a volunteer army of civil rights lawyers can be depended on to challenge any anti-loitering statute.  But the first duty of government is to ensure the safety of the citizens.  New York and other states should give police the maximum tools to do so.  The opposition to these laws can only go so far.

Which is not to say that the trends that Rauch discovers are meaningless. Rauch notes the most important long-term dynamic in American politics today: as a demographic matter, Republican constituencies are shrinking while Democratic constituencies are growing. At the same time, the Republican constituency is becoming increasingly conservative.  ”Conservative” here means that Republican constituencies are increasingly inclined to believe that government is no longer being run for the general public’s benefit (no surprise — numbers-wise, they’re becoming a minority). Hence, they are attracted to an anti-government message, and, as Rauch finds, may not even trust Republicans anymore. The ongoing economic crisis and the disrepute into which Republicans fell during the Zeros exacerbates this trend.

Of course, these are just groundless speculations. Still, I disagree with Rauch’s conclusion that to win over conservative independents, the GOP will need to adopt broadly unpopular anti-government policies. On the contrary, I think the data, properly understood, support the political case for a mix of policies that addresses (or, more importantly, for better or worse, is perceived to address) wage stagnation and the unhappy economic plight of the middle and working classes. That is, those conservative independents aren’t looking for extreme libertarian policies but rather a party that they feel they can trust.

All students will be included in an accountability system that builds on college- and career-ready standards, rewards progress and success, and requires rigorous interventions in the lowest-performing schools. We will celebrate the Reward states, districts, and schools that do the most to improve outcomes for their students and to close achievement gaps, as well as those who are on the path to have all students graduating or on track to graduate ready for college and a career by 2020. All schools will be aiming to do their part to help us reach that ambitious goal, and for most schools, leaders at the state, district, and school level will enjoy broad flexibility to determine how to get there.

But in the lowest-performing schools that have not made progress over time, we will ask for dramatic change. To ensure that responsibility for improving student outcomes no longer falls solely at the door of schools, we will also promote accountability for states and districts that are not providing their schools, principals, and teachers with the support they need to succeed.

(Emphasis added.)   A noble vision underlies this textbook exposition of school accountability: The winners in our meritocratic society (such as the members of the Obama administration), not content to monopolize America’s glory and riches for themselves, but earnestly desiring to lift up the less fortunate to their level, shall impose their will on a sclerotic education establishment (including such traditional Democratic allies as teachers’ unions) in order to introduce into the school system the same uncompromising incentive structures that have made America great.  This vision — so redolent of Andrew Carnegie and 19th century noblesse oblige — now animates mega-foundations such as the Bill and Melinda Gates Foundation, mandarin-credential machines such as Teach for America, and, of course, legislation such as the No Child Left Behind Act.  We are living through a golden age of education reform.

Except that the school accountability movement is almost certain to achieve the very opposite of what it intends!  Suppose that you are an aspiring teacher.  Suppose, further, that you are one of those saints who would to prefer to teach in a high-crime, poverty-stricken area than, say, in a wealthy suburban district where students gobble up AP credits and compete for admission to elite colleges.  Would you in fact choose to teach the most underprivileged?  All else being equal, under school accountability, you would not.  For, if you do end up serving the underprivileged, there is a good chance that you or your school will ultimately be demoted or punished as “failing.”  School accountability tells teachers to avoid potentially under-performing schools.  Just ask Joyce Irvine.

This problem could theoretically be avoided by measuring “failure” or “success” not in absolute terms but in terms of the “value added” by a particular teacher or school. As a statistical matter, however, metrics of “value add” are virtually impossible to devise.  Suppose a school is located in, say, one of New York City’s steadily gentrifying areas.  If, over time, test scores rise, is that a function of that school’s superior methods, or is it rather that the school is becoming increasingly dominated by high-IQ families who prize education?  Separating the two effects is exceptionally difficult.

And that’s just the beginning.  Consider also the “supporting cast” problem.  Teachers, like football players, cannot succeed without the help of their colleagues.  Suppose one teacher thrives, but only because she happens to enjoy the support of a tough administrator willing to discipline her students.  That teacher’s performance may not be able to be replicated without a similar — if not the same — administrator.

Then there is the problem, to borrow another football analogy, of the “system quarterback.”  Some NFL teams such as the New England Patriots or the Philadelphia Eagles are so good at passing down institutional habits that virtually any player can be plugged into their line-up and see a bump in performance.  Conversely, players who leave the Patriots or the Eagles for other teams see their performance plummet.  The school accountability movement assumes that “good” teachers and administrators can replicate their success elsewhere.  That assumption could turn out to be false.

These problems will take decades to solve.  By the time that reliable value-added metrics are actually discovered, the school accountability movement will likely have become a distant memory.  Reformist conservatives try to inject a measure of realism and skepticism into policy debate.  Daniel Patrick Moynihan, a proto-reformist conservative, once facetiously urged that, since education outcomes in the Northern U.S. are better, states who wanted to improve test scores should move closer to the Canadian border.  Moynihan alluded to an obvious, if uncomfortable, truth: the success of a school depends not only on its own resources but also on the students and families that it attracts.  The bipartisan policy of holding “failing” schools accountable is colliding with the bipartisan policy of increasing (through immigration) the supply of low-skill, low-education workers and families.  Largely as a result of immigration, for example, California has been “slipping toward educational and economic mediocrity,” as a recent California Faculty Association report put it.  Republicans and conservatives should consider striking up an alliance with their traditional antagonists — teachers’ unions — by jettisoning their “no child left behind” policies and focusing instead on not making the problems with the schools worse.

All fine. For those who wish to take ideology into account, JSN has accurately proved that Kagan leans left.  Still, even if you concede that ideology is relevant to a nominee’s qualifications…  why do JCN’s statements have to be so cringe-inducing? For, not content to enumerate the ways in which Kagan is a liberal (she doesn’t like gun rights, defends partial birth abortion, supports gay rights, etc), JCN denies that Kagan even believes in the Constitution or “the principles of the Declaration of Independence.”  Marx closes one philippic against her with the claim, “Americans of all political persuasions should be outraged at this president’s commitment to lawlessness.”

Now, this is all very rich coming from an organization that has made the nakedly partisan “rubber stamp” talking point the central theme of its campaign.  More importantly, none of it is even true.  Take the charge that Kagan rejects the Declaration of Independence. The supposed evidence comes from this exchange between Kagan and Senator Coburn:

COBURN: So — so you wouldn’t embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren’t given in the Constitution, that they’re ours, ours alone, and that the government doesn’t give those to us?

KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

COBURN: Well, I understand that. Well, I’m not talking about as a justice. I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

KAGAN: Senator Coburn, I — I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief, if I had one or…

COBURN: I — I would want you to always act on the basis of a belief of what our Declaration of Independence says.

KAGAN: I — I think you should want me to act on the basis of law, and — and that is what I have upheld to do, if I’m fortunate enough to be concerned — to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.

In other words, Kagan denies that she rejects the natural rights philosophy of the Declaration. “I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws,” Kagan says. Rather, as she goes on to explain, she does not believe that as a judge she should decide cases based on these natural rights. Coburn indeed was probably trying to trap Kagan into admitting that she believed in natural rights. That would have given Republicans — and JCN — an opening to lambast Kagan as a potentially lawless judge who will put her own personal moral views ahead of the Constitution.

Moreover, Kagan’s position on the Declaration is the very one championed by leading judicial conservatives.  Justice Scalia, in his dissent in Troxel v. Granville (2000), went even further than Kagan: he admitted his own views as to what rights the Declaration enshrined, but denied that he had any business deciding cases in order to uphold them.  JCN counters that Kagan must have forgotten the Tenth Amendment– probably meaning to say the Ninth Amendment, which refers to unenumerated rights not otherwise mentioned in the Constitution.  (The 10th Amendment reserves powers to the people rather than rights.)  Well, on that subject, no less a judicial conservative than Robert Bork famously compared the Ninth Amendment to an unintelligible “ink blot.”  Both Scalia’s and Bork’s views on unenumerated rights — that is, rights not specifically protected by the language of the Constitution — are highly controversial, including (perhaps especially) among conservatives and libertarians. What is not controversial is that Scalia and Bork are judicial conservatives who are utterly acceptable to JCN and its allies. Alluding to the story of David and Goliath, JCN calls Kagan’s “refusal to embrace the Declaration” one of “five smooth stones” with which to slay the giant Kagan. Not only did Kagan not so refuse, but the point is flagrantly opportunistic.

Finally, JCN charges that Kagan isn’t committed to the Constitution — meaning, that she will “rubber stamp” (not strike down as unconstitutional) any legislation that Obama has signed.  This puts JCN in the awkward position of advocating “judicial activism” rather than “judicial restraint,” at least as those words are understood in their ordinary lexical senses.  JCN escapes this position in the only way possible: by conceding that judges have the power of judicial review and therefore should indeed strike down unconstitutional laws.

This is not the place to resolve the weighty question of the proper role of judges in our republic. At least this much is clear:  JCN likes decisions that have struck down gun-control laws, campaign finance laws, and federal laws regulating intra-state activity; it does not like decisions that have struck down laws regulating abortion or defining marriage as between a man and a woman; but it likes decisions that have upheld — against constitutional attack — laws denying funds to universities that bar military recruiters.  No doubt a constitutional scholar or other could come up with a theory defending this pattern as consistent with the Constitution. Still, the pattern is not so obviously correct that anybody who rejects it must be committed to “lawlessness.”  On the contrary, even among conservatives, perhaps only a minority accept the pattern as correct in every detail. Of course, JCN has no intention of applying its own standards to every nominee.  What it calls “lawless” is merely “what we have discovered Kagan to believe.”

One hardly expects JCN to come out and confess that they no more care about the proper role of judges or the true meaning of the Constitution than their opponents. Still, JCN’s accusations against Kagan have risen to a level of preposterousness that discredits its own message — not to mention the message of conservative and libertarian jurists and legal scholars more generally.  For the conservative movement, JCN is another “Mark Levin” problem:  When you see conservatives tolerating absurd arguments merely because they (supposedly) further the cause, you have to wonder whether the movement as a whole can be trusted.

Actually, it’s not. Chait and Blow insinuate a far worse depiction of Tea Partiers than the one they actually draw. Indeed, to the extent that Chait and Blow have any genuine objection to Tea Parties, it is that they exhibit too much naive goodwill and desire to do what’s right for the country as a whole.

Start with Chait’s claim that Tea Party ideology “fits in snugly with a racialized vision of government.”  This is true and sinister-sounding but also vacuous.  Yes, one may support Tea Party policies for racist reasons (“No more spending our hard-earned taxpayer dollars to help black people!”). By the same token, one may support liberal policies for fascist reasons (“The will of the Volk demands that the health care system be nationalized!”). Chait himself thinks it’s hilarious when right-wingers try to tar liberals as fascists based on coincidental ideological overlaps. Yet Chait makes the same mistake when attacking an ideology he doesn’t like. Tea Partiers are no more racist because racists may support their programs than liberals are fascist because fascists may support their programs. Both are fallacious arguments ad hominem.

More subtle is Chait’s claim that Tea Partiers’ views are “difficult to separate” from views about race. But what American political ideology can be separated from views about race? Race issues in America are virtually impossible to avoid, for the simple reason that whites and blacks (and others, especially in the past 40 years) have lived together in this country since the very beginning, and not always — to put it mildly — harmoniously. Modern progressivism, for example, holds that (i) America has a history of discrimination against minorities, (ii) that history accounts for the relative lack of achievement of many minority groups, and, therefore, (iii) the government should actively redress past discrimination.  These are nothing if not “views about race.”  On issues like affirmative action, progressives even believe that government should discriminate against whites in favor of minorities. Regardless of its merits, this is a frankly “racialized vision of government.”

We should expect Tea Partyism to have views about race no less than any other ideology. What offends Chait about Tea Partiers is not that they have “views about race” — which Chait himself presumably has as well — but that they do not make their views explicit.  Officially, Tea Partiers only want the government to tax and spend less. What could fiscal policy have to do with race?  Well, according to Chait, though they want to cut government, it turns out that Tea Partiers have no beef with middle class entitlements such as Social Security and Medicare. They are also more likely to oppose government efforts to help minorities. These features, Chait argues, add up to an unacknowledged fear that the government is increasingly being run to benefit racial minorities at the public’s expense.

Fine. Even if Chait is right, it still doesn’t mean that Tea Partiers have some nefarious hidden motives. The views on race that Tea Partiers refuse to acknowledge are utterly conventional. They consist simply of 1970s-era neoconservatism: there are “limits to social policy;” in particular, there are limits on the government’s ability to achieve racial equality. Just like Tea Partiers of today, neoconservatives such as Irving Kristol had no objection to middle class entitlements, which they praised precisely because they (historically) were open to all and not means-tested. Chait wants Tea Partiers to express their subconscious fears. It turns out, however, that those fears were expressed some time ago, with impressive intellectual and political results.

Finally, Blow — as does Chait — observes that Tea Partiers are mostly white. Of course, so are most people who drive electric-powered cars, go on nature walks, fret about their carbon footprints, recycle religiously and shop at Whole Foods. Presumably Blow does not condemn these activities, or the ideologies that rationalize them, merely because of their overwhelming whiteness. On the contrary, what apparently upsets Blow is that Tea Partiers take pains to show that their movement is not exclusively white.  In other words, Tea Partiers want their ideas to be embraced by Americans of all colors. One would think that this is the very thing that Blow should be happy about that.

But he is not. He thinks the Tea Partiers are hypocrites “engaged in the subterfuge of intolerance”: they say that they only want what’s best for America, but if you look only a little deeper, it turns out that they are driven by white racial anxiety. Even if that’s true, Tea Partiers are still sublimating their racial anxieties and making appeals solely to the public good. Those appeals can then be judged on their merits, without reference to the skin color of the people making them. Does Blow wish instead that Tea Partiers turn themselves into a far right movement that’s only interested in what’s good for white people? Presumably not.  It is vital to the future of this country that such a thing never happen. Yet Blow’s op-ed amounts to the complaint that it is not happening. He wants Tea Partiers to be more forthrightly racist and therefore less hypocritical, or else shut up and be content to be politically voiceless. If any political stance today is troubling, it is this one.