Conservative principles are very nice--as long as they don't get in the way.

By Jacob Weisberg

The Dec. 16 issue of the Weekly Standard opened with the kind of editorial one is used to reading in conservative magazines. Titled "It's Time to Take on the Judges," it heaped outrage on the recent decision by a California federal judge halting the enforcement of Proposition 209, passed by the voters last month, which bans state-sponsored affirmative action. The Standard denounced Judge Henderson's order as "an assault on popular will" and an act of "judicial usurpation." Growing more indignant by the paragraph, the editors declared it "time to ignite a popular outcry against unelected officials and their efforts to invalidate the results of elections."

It all made sense--unless you happened to have read an article in the previous issue of the Standard about Proposition 215, the other big California ballot initiative this year, which legalized the use of marijuana for medical purposes. In that piece, William Bennett and John Walters, Bennett's deputy drug czar during the Bush administration, argued that the will of the people must be overridden. The authors recommended that the federal government invoke an obscure provision of the Controlled Substances Act of 1917 to revoke the licenses of doctors who dare to act on Proposition 215, and that the Drug Enforcement Administration ignore state authorities and "use its power" to "move unilaterally" against pro-pot doctors.

The Bennett position, which has been seconded by Sen. Orrin Hatch of Utah, among others, actually violates two core conservative principles. One is federalism--the preference for state authority over federal. We have all endured screeds from conservatives on how terrible it is for Washington to usurp power from the states. The other is the demand that judges defer to voters. If DEA officials peremptorily overrule state law, as Bennett wants, the issue will end up in the courts, where conservatives will, presumably, favor unelected federal judges backing the decision of unelected federal bureaucrats to overturn the popular will. In defending this scenario, Bennett, Hatch, and others have already used the same argument conservatives denounce as elitist and patronizing in the case of the affirmative-action initiative: that disingenuous wording misled voters about the measure's real effect.

Decrying a judge's interference with the affirmative-action initiative is more in keeping with general conservative complaints about "judicial activism"--but not in keeping with much previous conservative huffery on affirmative action itself. Conservatives have often expressed the view that affirmative action is unconstitutional. In other words, when democratically elected governments act pro affirmative action, judges should overrule them; when democracy acts anti affirmative action, the people's will must be sacrosanct.

Before I get too high on my own horse, I ought to acknowledge that liberals aren't always paragons of intellectual consistency, either. In the case of the California initiatives, many liberals have been just as outcome-based as the Standard crowd, denouncing federal meddling in the case of 215 while supporting Judge Henderson on 209. And let's give conservatives a bit of credit. On one significant issue, the line-item veto, they held firm on an old stance even though doing so meant handing a Democratic president a knife to gore Republican oxen (though they did postpone the day as long as possible and are now contending that Clinton's conception of it is too broad).

But despite these caveats, Republicans are still the biggest offenders when it comes to inconsistency. On a broad range of issues, the tensions--to choose a nice word--between their principles and their practice have gone completely out of control.

The basic reason for these, um, tensions is that many "principles" of modern conservatives were developed under political conditions that prevailed in the 1980s--a Republican president, a Democratic Congress, and a liberal federal bench. Conservatives don't seem to have anticipated that this might change. They guessed that they would do better with a "strong executive," a weaker legislative branch, and a restrained judiciary for many years to come.

This meant, for instance, that they didn't just defend Reagan administration officials, like Ed Meese, who were accused of wrongdoing. They opposed the whole institution of the special prosecutor (a k a independent counsel) in categorical terms as a violation of the separation of powers. Before the 1992 election, congressional Republicans caused the law authorizing special prosecutors to expire. After Clinton's election, conservatives changed their minds and decided to reauthorize the law. Today, the shoe having switched feet, one no longer hears conservative worries about abuse of the independent counsel's office. Indeed, conservatives have been busy protesting James Carville's attacks on Whitewater Special Prosecutor Kenneth Starr as the scandalously inappropriate undermining of an essential institution of public accountability. Five years ago, Republicans were denouncing Lawrence Walsh, the Iran-Contra special prosecutor, with greater venom and less justification. On this point at least, Democrats have been much more consistent, supporting the independent counsel's office throughout, despite their own partisan objections to Starr.

Arelated issue is presidential pardons. In the closing weeks of the presidential campaign, Bob Dole made a big fuss about Clinton's refusal to categorically rule out pardons for former associates caught up in Whitewater. Several Republicans in Congress said they would consider such pardons grounds for impeachment. But in 1992, a lame-duck George Bush was following Dole's urging when he pardoned Caspar Weinberger and five others indicted or convicted in Iran-Contra. Dole called Walsh's investigation "an outrageous $35 million political persecution of Republicans," and applauded the pardons. At the time, Walsh was trying to get Weinberger to rat out Bush in exactly the same way Starr reportedly is trying to get Susan McDougal to finger Clinton.