(cross-posted at BOPnews)

Mandate, mandate, mandate.  What is this concept, and why all the fuss?  Since I'm in the middle of Bruce Ackerman's excellent We The People: Transformations, I'm going to steal his concept of a dualist constitutional order and apply it to the mandate debate.  Ackerman posits two tracks of American politics - regular politics, in which we futz around the margins, and higher law, in which a political impasse becomes unsolvable, and a constitutional crisis results.  

There are many ways of dealing with such impasses, but the basic pattern is the same, and uniquely American.  You break some rules and rip some institutional fabric while retaining enough of a continuity to institutions and constitutional traditions so that your move is revolutionary, but not a revolution.  And you crush your opponents while doing it.  This happened in the 1930s when the commerce clause was reinterpretted under the threat of court packing, and it happened during Reconstruction when the 14th amendment was ratified under the threat of Andrew Johnson's impeachment.  But the key to such radical changes is, you guessed it, an electoral mandate.  The people have to say yes, again and again, until institutions crumble before the people and make their peace with their new constitutional role.

With this analytical lens, I want to take on Mark Schmitt's important discussions about Bush's mandate, and whether it actually exists.  Schmitt's essential position is that Bush used fear, uncertainty, and doubt to win, and therefore has no claim to wrecking and rebuilding our institutions.  In other words:

In response to my comments about the nature of Bush's mandate, a very conservative friend responded with a comment noting the numerical achievement of Bush's victory -- 60 million votes, an actual majority, and improved his standing in most states. That isn't really related to my point -- which was simply that, numbers aside, you can't really claim a mandate to privatize social security when you accused your opponent of lying when he charged that you intended to privatize Social Security..."

Mark Schmitt is certainly correct when he points out that Bush was explicit about not privatizing Social Security.  But to deny the essential radicalism of the Bush campaign, which is what Schmitt is in some part doing, is a bit too reductive and formalistic.  Sure, Bush claimed he'd keep the system solvent, but that was only on one level.  On a deeper interpretive level, he was mostly explicit about remedying what he saw as a skewed balance of power in American society.  This message was clear, and showed up in both the toxic anger of the left who felt the ground shifting beneath them, and the coded Swift Boat appeal which spoke to the rural right and franchise militarists.  Only the befuddled middle stuck its head in the sand and refused to hear what was obvious.  The rest of us knew what Bush was talking about.  We didn't like it, but we got it.

So while Bush did not speak of an explicit plan to privatize Social Security, he did ask half a question about the program.  Is it right to have the government involved in providing for the welfare of all citizens? Bush did not answer this with an explicit no.  His answer was more of a maybe, verging on a no, pointing to the costs (taxes) of a social welfare state while not acknowledging any benefits.  This multilayered strategy is a capstone of a generation of conservative advocacy and questioning of the social welfare state, and is rapidly leading to a constitutional impasse.  But it is a constitutional question, and looking at it in a nitpicky legal formalist sense obscures the bigness of Bush's movement when contrasted against the smallness of Kerry's campaign.  

So I think Schmitt is a bit too sanguine on the way the electoral debate was held.  Bush very clearly laid out a different constitutional vision for the country, one in which the citizenry accepted dramatic economic instability and a militarized state apparatus.  It was not so much a difference of kind, more of degree, for we have been drifting this way for years.  The support the troops mantra and the Democratic emphasis on 'strongifying' everything implies just how powerful this constitutional vision really is and has been.  Stirling Newberry writes of this in his brilliant post-election analysis, Sparta 286 Athens 254:

America, narrowly, voted for National Socialism - a system by which the industrial and technological sections of the economy are taxes and pillaged for the sinews of a militarized economy, while the hinterland is given access to land, social status and oil in order to hold on to previous value relationships. Nazi comparisons are facile - because they lead to the wrong conclusion. Americans did not vote for racism, bigotry, death camps or any such will o the whisp. They voted for an ossification of the social structure, and placing a certain nationalist mania in a privileged social and political position. The army cannot be questioned, and those traits which make it possible to fill that army are national imperatives.

The campaign hinged on this - the Swift Boats and marriage attacks were not distractions, but encapsulations of two simple points. The first was a way of saying that Kerry would betrayed the military, and therefore he would cut the military to balance the budget. Simple terms: make the cost fall on someone else. The second was a way of saying that the social changes that come with a high production, high value added economy - namely a cosmopolitan society - would happen under Kerry.

That is Kerry was presented, accurately, as being a threat to the social and economic hierarchy to the land owning classes. Land, which holds its value through having cheap gasoline, demands a military machine to obtain the oil and to maintain the social inequality should it come to that. Kerry was, accurately, presented as someone who would not go to war for oil.

If one looks at the map - the division - between the large blocks of the country whose value is sunk into rent and the smaller city areas that generate value through capital - is clear.

This social structure - paralleling the ancien regime of France is based on two alliances. The oligarchic rich place their faith in Church and State, they ally with the landowning peasants that stock the army, against the tradesman and the very bottom day laborers. The hieararchical society tries to tax by forced savings the tradesmen, and keep the "rabble" in line with force. The hiearchy is not a mere marriage of convenience - each knows that it needs the other. The reactionary side of the ledger is not cleavable between "economic and social conservatives" - because the wealthy knows it needs a military, and the miltiary knows it needs someone to batter the rising professional classes into line.

Rather than 'just' being lies or bigotry, the Swift Boaters and the gay marriage initiatives were essential communicative tools to describe the kind of constitutional order Bush and his ilk want.  They were dishonest, of course, when seen through the formalist lens of a liberal policy analyst, but that's because they are written in televisionese, the mildly retarded linguistic tool we use to do politics in this country.  So while Bush's campaign didn't point at Social Security, the movement he is riding has clearly targeted that program as the capstone of the constitutional order they despise.  The Sharon statement , the founding document of the modern conservative movement, says as much:

That the purpose of government is to protect those freedoms through the preservation of internal order, the provision of national defense, and the administration of justice;

That when government ventures beyond these rightful functions, it accumulates power, which tends to diminish order and liberty;

Social Security, because it does not preserve internal order, provide for national defense, or administer justice, diminishes order and liberty.  Obviously, the assumptions underlying the conservative movement are not those I share, but the ontological questions they are asking simply cannot be avoided any longer.  And Murphy, the conservative Schmitt points to, says as much in the comments:

As for a mandate to reform Social Security, Bush indeed has one. When he spoke of SS during the campaign he was consistent. He would like to give younger workers the option of investing a portion of their withheld SS. If you call that "privatization" then any reform that extends beyond raising taxes or limiting benefits is "privatization." The government can't "invest" SS funds in T-Bills any more than I can lend myself money.

Kerry used the loaded but vague term "privatize" and Bush used the loaded but vague term "reform."

Kerry used "privatize" to mean "undermine." Bush used "reform" to mean "give people greater control of their money."

Kerry accused Bush of wanting undermining Social Security. Bush said he did not want to undermine SS but did want to give people greater control of their money. "Greater control" won by several million votes. Hence: mandate.

But I do agree with Schmitt that Bush's mandate is not complete.  The Republicans have only half asked the question, merely implying instead of disclosing that Social Security would be trashed in their world.  As sovereignty still resides with the people, despite the reactionaries' best efforts, this matters.  While the claim that Social Security is immoral, which is really a constitutional claim that the government has no role in ensuring the economic welfare of any individual citizen, has been put forward obliquely (without stating the costs), it leaves an element of shame among those who stake it.  As Schmitt notices:

Then I looked at my friend's own blog, and noticed that he is promoting a bumper sticker with the initials "TGWW" -- a special discreet code that stands for, "Thank God W Won," a subtle indicator like the Skull and Bones handshake, so fellow supporters can notice each other without calling undue attention to themselves in hostile environments. ("It's a big 'hell yeah!' that will impress your friends and confound your enemies.") How is it that, if Bush's mandate is so clear, his supporters still feel the need to operate as if they were early Christians in the catacombs? Yes, it's true that my friend lives in a "blue state," but it's not exactly the East Village. He is represented by a reelected Republican member of Congress, his state has a Republican governor, and he lives in a municipality where registered Republicans outnumber Democrats 2:1, the kind of place where Robert Lowell's lines seem fitting: "even the man scavenging filth in the back alley trash cans,/ has two children, a beach wagon, a helpmate,/ and is 'a young Republican.'" So why the secret handshake?

The ability to simultaneously maintain the triumphalism of a mandate, and the sense of being an embattled minority has much to do with the continued political success of the far right. It allows them to maintain the energy and righteousness of opposition even while they claim the most autocratic control of American political institutions since the 1920s. It is also a defensive shield that made it very difficult for Democrats in the past election to treat the Republican right as what it is: the ruling party, and a particularly corrupt one.

The continual aggrievement of the right belies a fundamental lack of confidence in their own ideology.  This is not just a question of tactics - it is core to who they are.  Closely reading the Sharon Statement, we can see that the right, far from having a self-sustaining impetus towards freedom, needs enemies to derive its ideological power:

That we will be free only so long as the national sovereignty of the United States is secure; that history shows periods of freedom are rare, and can exist only when free citizens concertedly defend their rights against all enemies;

That the forces of international Communism are, at present, the greatest single threat to these liberties;

That the United States should stress victory over, rather than coexistance with, this menace; and

That American foreign policy must be judged by this criterion: does it serve the just interests of the United States?

Two groups of ideologues unreasonably believed that the forces of international Communism had inherent power beyond a Soviet and Chinese resource base: Communists and Conservative Nationalists (of which Bush is one).  The belief systems are radically parallel, requiring the otherization of internal and external dissent, and refusing to acknowledge very real concepts like soft power and the institutionalization of global consent.  The shame that TGWW signifies, the notion of aggrievement, shows how wedded to rigidity and order this ideology truly is, and the strains it must withstand when placed in the confines of an enlightenment governance structure.  For the right must argue for the preservation of an elite, all the while wrestling with the dangerous forces of demagoguery and anti-elitism they have aroused.  They use the notion of free markets to make this argument, even as they enlarge the role of government in the economy, shut off markets to newcomers, and grant huge monopoly franchises to political allies, the type of franchises that would make King George III blush.  The stress of such ideological inconsistency, pushing 'order' and 'liberty', leads to shame, corruption, and TGWW.

The very obliqueness of their approach means that their mandate isn't clear, but it also means that they are very savvy about what they want.  Conservatives have asked a big question, and it took them forty years to do so.  In a sort of reverse Federalism, they are asking the question of who we are piece by piece, pushing the intellectual debate and economy into areas that allow them to win as the country is ready to grant them victory.  Gingrich overreached in 1995, but the movement learned from his mistakes, and his proposals are now central to where we are.  It was too early in 1995 - there was too much institutional trust in the liberal order to demand its revocation.  The impeachment, 9/11, and Iraq have demonstrated that the system doesn't work, and so the country is now ready to ask big questions about higher law.

And so that's what Murphy means by Bush's mandate.  Bush now has the right to ask questions about the constitutional order, and answer them.  I would agree with the questioning component, but not the answering one.  The people have given their sovereign consent to ask fundamental questions about the liberal welfare state.  What they have not done, as Schmitt points out, is give Bush the right to answer that question along reactionary lines.  

Nonetheless, he will try, and he may succeed, but I am doubtful.  The institutional hurdles to higher law change are very high, and even though all branches of the Federal government are controlled by reactionaries, as are the terms of public debate, that debate is not over.  It may only be beginning.  Institutionally, there are pockets of resistance that are potentially very powerful.  The American system is quite creative at forcing these questions to be asked, and answered - during Reconstruction, the battle took place between a conservative President and a radical Congess, whereas in the 1930s it was the court that played the role of guardian of the status quo.  Today, it could be the states.  The Federal government can offload responsibility to the states for, say, Medicaid (or the removal of state tax deductions), but this is really only avoiding the larger response to the question of the government's role in the economy.  The people haven't given their consent to changing it, and the schitzophrenia this provokes means that it is Governors, both Republicans and Democrats, who will resist the imposition of a reactionary order.  It's possible the reactionaries could win this time, but without Daddy's credit card (China's, actually), they could potentially be forced to have answered the questions they are raising before the American public is ready to grant them the power to force change.

Obviously, nothing that comes out of a financial crisis is predictable.  The North did not have to win the Civil War, it did not have to impose Reconstruction, and slavery did not have to outlive the American Revolution.  Nothing is inevitable.  We could have had President Huey Long.  But we must reject the notion that the conservatives have no mandate, for they do.  They have the right to ask the big questions, which they are doing obliquely.  What we must do, which is what liberals have always done in times of crisis, is force their hand by answering clearly, not by defending the top-down liberal welfare state and its now colorless spiritless technocratic ideal, but by figuring out what we want the new global and communal order to look like, articulating it, and organizing around it.

That is Bush's mandate, and ours.