(Opening scene: Angels, represented by twinkling stars, are talking about a troubled soul on Earth. They review this soul’s life, and the circumstances that led to its present attempt to kill itself….)
It was conceived with great hopes in a simpler time, by a variety of generous parents, and a few original sins. England (via the British Empire), in which modern democracy developed; The Enlightenment, characterized by a fluorescence of rationalistic philosophy; a wide-open new land, with an easily displaced indigenous population; abundant imported and domestically bred slave labor. It developed a grandiose vision for itself, one comprised of the somewhat incompatible memes of ‘manifest destiny’ and champion of liberty, and an exaggerated faith in its own exceptionalism.
But, as often happens, life presented unforeseen challenges which diverted this soul, the sovereign American People, from its youthful dreams. It gradually was forced to confront its original sins, brutally divided by one of them. Innovations complicated the landscape in which its dreams had been formed. It had to cope with a world comprised of other people with interests of their own, people less convinced of the benevolence of this powerful and self-interested nation than its own populace persistently was (rather too conveniently).
But despite this diversion from its original dreams, it was the same soul, peforming many good deeds, more often born of pragmatism than idealism, that were not always part of the original plan. It grew to address a changing world, doing what needed to be done to increase the welfare of those who depended on it. It intervened in its parent-continent when brutality racked the latter’s fields and towns, and then watched that continent, unencumbered by youthful dreams, combine the best fruits of their child’s aspirations with the reduced purism that comes from maturity.
But something in the people clung to the purity of youthful dreams, sulking with resistance to adulthood’s demands, an error that sometimes characterizes idealistic youth. Just at the point when both the people and their government were on the verge of following the mature wisdom of moderation and adaptation, the oversimplistic idolater within, childish and narcissistic rather than noble and generous, rebelled, and rent this national soul in an internal conflict over whether mature moderation would prevail, or childish purism.
It rebelled in a moment of crisis, a large faction of the people chanting the mindless refrain, “Government is not the solution, it’s the problem! The world would be better off without this government we’ve allowed to grow and grow, displacing the purity we had believed in and tried to implement in our youth! We would be better off if we had not allowed the lessons of life to adapt those youthful dreams to the demands of reality!”
And so this soul’s guardian angel decided to show it what the world would have been like without that modern government it now wished dead….
“First,” the angel said, “let’s look at what your country and world would have been like had you not further amended the Constitution after the Bill of Rights.
“Slavery would not have been legally abolished by the 13th Amendment, nor Congress empowered to enforce its prohibition.
“The 14th Amendment’s transformation of the legal framework of the country would never have occurred. The Dred Scott Decision, which held that no African American, whether free or slave, was an American citizen, would have remained the law of the land. The states’ exemption from the Bill of Rights, a document originally interpreted to limit only the federal government’s intrusion on state and individual rights, would have persisted, and the protections of the Constitution would have continued not to apply to or restrain state and local governments in any way. African American slaves would have continued to be counted, legally, as 3/5 of a human being.
“The 15th Amendment’s legal guarantee, not to be effectively enforced for a century more, that all citizens, regardless of race, have the right to vote, would not have come into existence.
“The 17th Amendment’s increase in direct democracy, by shifting elections for U.S. Senators from the state legislatures to the people of the state, would not have happened.
“Women might still be denied the vote in some states.
“The increased tardiness and unevenness with which the United States would have dealt with these morally enervating issues would have reduced the human capital of the nation, delaying its fuller liberation and development longer, if not, in some places, indefinitely. It would have been a less innovative country, and a less inspiring one to other nations. Resentments would have grown even stronger, divisions even deeper, the problems bred by these defects even more inextricably embedded in the fabric of your society. Those who later depended on the United States as a beacon of liberty would see only a quagmire of exploitation and oppression, either lagging even farther behind the finally pacified continent across the Atlantic it continually claimed superiority to, or, by not being a strong enough nation to lead, leaving the world into a downward spiral from which it couldn’t escape.
“The world would have been a very different place indeed had the United States not become what it became. And while there are those in the world who think that would have been a good thing, sometimes with considerable justification, it most certainly wouldn’t have been a good thing for America, nor, all things considered, for global peace and prosperity.”
“Oh, Angel,” the suicidal faction groaned condescendingly. “First of all, most of us don’t object to Constitutional Amendments, but rather to other increased exercises of federal power without recourse to such amendments. And second of all, many of these things would have come to pass by the choice of individual states, without the federal government imposing them on the states.”
“Slavery wasn’t going anywhere, anytime in the foreseeable future, without the legal and military coercion of the federal government,” replied the angel. “The gradual incorporation of the Bill of Rights into the Fourteenth Amendment by successive Supreme Court decisions, which continued into very recent times (because state and local governments were not universally committed to protecting those rights), would not have occurred, and those states would remain free to disregard those protections. We see even today how fragile those protections are, at the hands of those who claim most respect for them, in the repetition of the refrain that granting due process to those suspected of certain crimes (e.g., terrorism) reduces the rule of law, a chant that is phenomenally ignorant of what the term ‘rule of law’ means in a Constitutional republic (hint: ignoring it out of convenience, in order to increase conviction rates, no matter how heinous the crime, is the exact opposite of what it means).
“As for your other concerns, about increased exercises of federal power not granted by Constitutional amendments, follow me….”
The angel then said, “let’s look at what your country and world would have been like had you not had a strong federal government to hold the country together, pursue its collective interests, and impose its core values on its constituent parts (leaving aside for the moment the issues of so-called ‘activist courts’ and of the rise of the ‘administrative state’).
“It took a strong federal government to end slavery and hold the union together during and after the Civil War. A century later, it took a strong federal government, complete with National Guard, to enforce court-ordered desegregation. And it took a strong federal government to pass The Civil Rights Act of 1964, which utilized attenuated Commerce Clause power to prohibit racial discrimination by private owners of commercial institutions.
“It took a strong federal government, captured by the will of the people in a series of populist and progressive movements in the later 19th and early 20th centuries, to rein in ‘the robber barons,’ and redress the biggest disparity of wealth in this country ever…, until today, when we have finally exceeded it. It took a strong federal government to give the country hope during The Great Depression, and, despite the revisionism popular with the far-right today, launch record-setting economic growth in its midst (from 1933-1937), until budget hawks managed to convince to FDR to compromise his policies to their concerns.
“It took a strong federal government to mobilize the country and lead the allies during World War II, and to lead NATO during the Cold War.
“Without these efforts, slavery might still be extant, and, certainly, Jim Crow (American ‘Apartheid’) would still be extant in some regions. The country would have fractured not just into two as a result of the southern cessation, but into multiple tiny republics, neither viable on their own nor of any import on the world stage.
“Mexico and Canada, our more politically, economically and militarily successful neighbors to the north and south (in this alternate reality), probably would have annexed large chunks of what would otherwise have been The United States. European and World History would have been different, possibly with fascism prevailing in Europe and, eventually, threatening the tiny, weak republics across the Atlantic, in what would otherwise have been The United States of America.
“There would have been nothing other than fascist Europe to check Soviet and Chinese expansion, and, it is more probable, given the lack of moral compass of both fascism and Sino-Soviet Communism, that they simply would have arrived at a mutually agreeable division of the world into competing but mutually accommodating and reinforcing tyrannies.
“Without a federal government as strong as this one has been, there would be no ‘United States’ today, certainly no liberties in some regions for those who were deprived them historically, and quite probably a more tyrannical world in general.”
“Next,” the angel said, “let’s look at what your country and world would look like if you had not had an ‘activist’ judiciary interpreting the Constitution in ways relevant to, and adapting to, changing circumstances.” (See http://www.law.emory.edu/fileadmin/journals/elj/58/58.5/Green.pdf for a comprehensive exploration of the concept, including a discussion of why it, appropriately applied, has nothing to do with boosting individual liberty or governmental power, but rather refers to whether the judiciary adheres to the norms of judicial conduct which are its only real restraint.)
“In the conventional, ideologically charged use of the term, all Supreme Court decisions involve ‘judicial activism,’ because those cases that the Supreme Court chooses to hear are precisely those cases that involve unresolved ambiguities, and require judicial interpretation. Therefore, a complete history of the evolution of Constitutional Law, as defined by Supreme Court decisions, is, in a sense, one important slice of the history of ‘judicial activism,’ as the term is commonly used. And without that fully institutionalized form of ‘judicial activism,’ which is coextensive with the doctrine of ‘judicial review’ established by Justice Marshall described below, there would be no enforceable Constitution, no established and coherent rule of law to the extent that there is today in the United States. But rather than write a Constitutional Law synopsis, I’ll just mention a few of the most important cases, that involved perhaps the greatest liberty of Constitutional interpretation on the Court’s part, but without which we would be a nation with far weaker protections of individual liberties and rights than we have today.
“Chief Justice John Marshall established the principle of ‘judicial review’ in Marbury v. Madison in 1803, the first and greatest act of judicial activism in U.S. History, without which there would have been no final authority on what was and was not Constitutional. the lack of such judicial authority would have inevitably undermined the rule of law that, more than anything else, has distinguished the United States. Without the judicially determined Constitutional last word that Marshall successfully instituted, questions of Constitutionality, and thus ultimate legality, would be political footballs to a far greater extent than they already are, overwhelmed by the bickering whims of conflicting ideologies and interests that characterize the rest of political discourse and decision-making. In other words, without this bold initial act of judicial activism, the Constitution would have been an empty promise, and would be referenced today for strictly rhetorical rather than legal support, a non-binding tool for political argumentation. Uninformed lay opinions about what does and does not constitute Constitutionality would be raised to a par with legal analyses and Supreme Court holdings, reducing the Constitution to a meaningless blank slate on which each interest group and ideological camp could impress its own preferred interpretation.
“In Yick Wo v. Hopkins (1886), the Supreme Court held that a facially neutral law that has the effect of discriminating (a selectively enforced San Francisco code restricting licensing for laundries to brick or stone buildings in order to target Chinese laundries which were built of wood) violates the equal protection clause of the 14th Amendment. This decision was not a foregone conclusion: The letter of the law itself didn’t violate the Equal Protection clause, and so the decision can be said to be one of ‘an activist judiciary.’ But had it been more literal in its Constitutional interpretation, the Court would have set the precedent that discrimination is Constitutionally permissible as long as it is done implicitly rather than explicitly.
“In Pennsylvania Coal Co. v. Mahon (1922), the Supreme Court held that a government regulation that essentially deprives a property owner of the value of its property is an unconstitutional ’taking’ (violating the Fifth Amendment protection of property), and the government must compensate the owner for that loss of value. Again, this is not an automatic ‘strict constructionist’ interpretation of the Constitution, since there is no language in the Constitution which addresses loss of value due to government regulation. However, those most adamant about the ills of ‘judicial activism’ are generally also those most likely to concur with this holding. In the absence of the judicial activism of the Court in this case, private property rights would have been more, rather than less, vulnerable to government intrusion.
“Brown v. Board of Education (1954) would certainly rate as an act of judicial activism by the ideological definition of that term currently in vogue. It overturned the Stare Decisis of Plessy v. Ferguson (1896), which held that segregation was Constitutional (instituting the ‘separate but equal’ doctrine), holding that ‘separate educational facilities are inherently unequal.’ Brown essentially launched the Civil Rights Movement as we know it today (it gave it its first major victory), a movement whose progress would have been at least slower, and possibly undermined altogether, in the absence of this Court decision.
“The Court also declined to limit Congress’ power to pass The Civil Rights Act of 1964, which used the Commerce Clause to prohibit private owners of commercial establishments from discriminating against potential customers, employees, renters, and buyers on the basis of race. This could easily be considered ‘judicial activism by omission,’ without which we would not have Civil Rights laws protecting minorities against the entire range of private discrimination, such as employment discrimination and housing discrimination.
“In Gideon v. Wainwright (1963), the Court established that the state’s failure to provide counsel to an indigent defendant essentially deprived that defendant of his Sixth Amendment right to counsel. The literal Constitutional right to counsel is not necessarily a right to be provided with counsel, at the people’s expense, but without interpreting it as such, this fundamental right would be accorded only to those who could afford it, and denied to those who cannot, reducing an essential protection of individual liberty to a commodity for sale rather than a guarantee to all citizens. In a world without this protection, the poor would receive even less justice than they do today.
“It’s worth noting here, again, that a series of Supreme Court decisions over the last century and a half have incorporated the Bill of Rights into the 14th Amendment Equal Protection clause, allowing those core protections to be applied to state and local governments as well as to the federal government, an act of ‘judicial activism’ without which states and counties and municipalities and school districts would be largely free to violate the Bill of Rights to whatever extent and in whatever ways they see fit. Hardly a boon to the protection individual liberty.
“Many other decisions could be included in this list, many other basic liberties that depended on an ‘activist judiciary.’ But the sampling above illustrates some of the ways in which our nation would be a very different, and in many ways far poorer place were it not for the role that the so-called ‘activist judiciary’ has played in our march toward increased equality of opportunity and rights, and increased protection of individual liberties.
“Finally,” said the angel, “let’s look at what your country and world would look like without the rise in America of the ‘Administrative State,’ through which to regulate the complex modern economy.
“Without the regulatory agencies that promulgate regulations, conduct hearings and inspections, license facilities, and engage in a complex web of tasks necessary to implement the laws passed by Congress, we would live in a far more insecure and unhealthy environment. Incidents such as the infamous ‘Love Canal’ toxic waste dump beneath a housing developing, causing an astronomical rise in cancer rates, would be the norm rather than the exception. The manipulation of markets, such as those by Enron which caused the California energy crisis of 2000-2001, would be constant and economically devastating. Confidence in investments would plummet, the economy would contract dramatically, and the financial system near-collapse of 2008 (resulting from underregulated financial markets) would be a constant and continuous event rather than a once-in-a-century crisis.
“The absence of the regulatory structure that has developed since the 1930s, and under the Administrative Procedure Act of 1946, would be akin to removing the mortar from between the bricks of the modern economy. The entire edifice would be less securely bound together, more unstable, and more likely to collapse. Those sheltered within it would feel every cold wind that blows through, and storms would whip through it with discomfiting regularity. Market failures would dominate the economy, and health and safety violations would be constant and ubiquitous. Commercial enterprises would know that they could sell toxic and dangerous substances with impunity, recognizing that there is more profit in not paying the costs of avoiding doing so. A major, perhaps completely dominant, economic niche would emerge for those that compete by avoiding such costs, simply changing names and products whenever the slow dissemination of information of the health and safety risks make the old product unprofitable to produce and sell.
“The already underfunded Food and Drug Administration would leave even more food and drug safety responsibility to the companies that have a vested interest in overlooking foreseeable dangers. The New York Times reported (September 28, 2007) that due to defunding, the FDA audits less than 1% of clinical drug trials in the United States. As a direct result we have increasing known cases of pharmeceutical companies fudging results of drug trials, leading to waves of preventable deaths, such as occurred with Propulsid (Johnson and Johnson), Bextra and Celbrex (Pfizer), and Vioxx (Merck).
“Similar stories of the consequences of deregulation and defunding of regulatory agencies can be found in food safety (increasing salmonella and E. coli contamination, even after companies had been asked to address discovered dangers but simply chose not to, a luxury afforded by underregulation), and product safety (such as children’s toys, imported from China, containing lead in seriously toxic quantities, undetected due to underregulation of imports). The more we ‘shrink government’ by reducing regulatory oversight even more than we have already done, the greater the frequency of such incidents will become. In the unregulated paradise that some in America are striving for, life would be, literally, ‘nastier, more brutish, and shorter,’ for thousands if not millions of children, and families, and innocent people just going about their lives.
“While there are some dysfunctional dynamics that lead to the production of laws that are thousands of pages long (e.g., earmarks, and other porkbarrel spending provisions; and controversial riders designed to piggyback on necessary legislation), the main reason is the complexity of the social institutional landscape that those laws are addressing. And those laws, even with their tens of thousands of pages of qualifications and provisions, don’t even begin to anticipate all contingencies, all unexpected consequences, all complexities that will emerge as the law is implemented. For that reason, regulatory agencies are necessary to implement the laws, to address those complexities, to adapt the execution of the law passed in Congress to the realities of the world to which it will apply.
“It is a very information-intensive enterprise, with an amazing amount of very precise expertise embedded in these organizations, able, for instance, to research the precise cancer rates associated with each commercial chemical substance on the market, or incorporated into items on the market; the ways in which these substances move through the environment and contaminate human beings; the probabilities of contamination and of contracting associated diseases from contamination; the fatality rates of doing so; the costs of regulation at each level; the balancing of legitimate economic concerns with legitimate health and safety concerns. It is not a process which leaves the public out, but rather one which, by law, includes the public, and invites public input.
“The same kinds of calculations and processes are required to oversee the use of public lands, the mining of water from aquifers and of minerals from the Earth, the emissions and dumping of toxic substances into the air and water and land; the determination of where to build roads and interstates and how to balance all of the concerns and interests involved; the determination of where to allow coal plants and nuclear plants and other installations to be built; the determination of what kinds of safety devices and scrubbers they require; the oversight of all of these protections and provisions without which we would all be dramatically worse off.
“Our economy has been growing (and continues to grow) in complexity at an accelerating rate. For example, the use of supercomputers programmed with complex algorithms to buy and sell stocks in order to reap gains made in fractions of a second distort the market, caused a freefall several months ago that rattled investors and required shutting the stock market down, and creates a competition for locating the computers as close as possible to the stock market servers in order to receive the information milliseconds before competitors. The market collapse caused by a malfunctioning algorithm resulted in an enduring loss of perhaps billions of dollars to investors, as the market had to creep back up, in a context of diminished investor confidence, from the depths to which it had plummeted. We need regulatory agencies equipped with human and material resources capable of keeping up with the tens of thousands of similar demands on them, if we want our market economy to continue to function, and to do so in the interests of all rather than at the long-term expense of the many in the short-term interests of the few.
“Here’s one very compelling objective piece of evidence about the value of that administrative state you are so eager to dismantle: Its emergence immediately preceded the most dramatic rise in wealth production in the history of the world. That very expensive “big government” administrative state has existed in every single nation on Earth that has ever experienced that dramatic rise in wealth production, both immediately prior to experiencing it and from then on, without exception, and every single prosperous developed modern nation is still characterized by the presence of that very expensive “big government” administrative state today, again, without exception. There is not one single exception, and never has been. While it’s true that you can’t prove a counterfactual (we don’t know what would have happened in its absence), there is not one shred of evidence that any other governmental form is able to facilitate this feat and accommodate its end result. By all available evidence, our wealth, the wealth of each and every one of us, is completely dependent on the existence of the administrative state.
“Yes, many of the problems that would occur in the absence of such a regulatory structure still occur within it; the poor are still burdened more than the rich by undesirable facilities in their neighborhoods; acquiescence to economic necessity still often triumphs over public health and safety; the interests of corporations still work their way through the system, in a variety of manners, at the expense of the public without always being off-set by a commensurate economic benefit; ‘industry capture’ of regulatory agencies to some extent ‘puts the foxes in charge of the henhouse.’ All of these problems diminish the degree to which our regulatory infrastructure efficiently and effectively does what almost all of us implicitly recognize to be necessary and desirable. But the absence of our regulatory infrastructure would erase the performance of that function altogether. The significant shrinkage of it that periodically occurs under Republican administrations almost always results in catastrophic effects, with a regularity that is matched only by the public disregard of the repeated lesson.
“To be sure, throughout this tour of what ‘small government’ would really mean, I have ignored the ways in which a strong centralized federal government, an ‘activist judiciary,’ and the rise of the administrative state have led to negative rather than positive outcomes for both Americans and the rest of the world (perhaps more the latter than the former, since a strong America has been strong to its own citizens’ advantage; for the most part, only when it incidentally served the interests of American citizens have others in the world benefited from American power. See “Democracy IN America,” But Not BY America). But the danger in America today, the one that most needs remedy, is not an exaggerated belief in the virtues of centralization of governmental power and effective political coherence, but rather an exaggerated belief in something that does not and cannot exist in the oversimplistic form imagined, a Liberty Idolatry that counsels the destruction of the very social foundation which liberty requires for its existence. And so that is the imbalance that I have addressed.
“Those poetic aspirations of America’s national youth were what defined its spirit and channeled its energies. They still guide and inspire its people today. But meeting real responsibilities as they arose is what carved that spirit into the more-often-than-not admirable world citizen and leader, and reliable agent of its own people’s interests, that it has become. The world, and the people at home who give the federal government life and whose lives that government in turn embues with expanded opportunities, would be poorer for the partial death that some would now impose on this vital vehicle of the American spirit. The demands that the federal government has risen to meet were not optional, could not have been disregarded. And idolizing rather than respecting the guidance given by America’s founding leaders and documents is an insult to them, and a disservice to those alive today, as well as those who will be alive tomorrow.”
The United States of America was founded to be a progressive nation. As Thomas Jefferson himself wrote:
I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.
Those who would strait-jacket us as a people with the ideological raiment that exists only in their own shrunken imaginations stand in opposition to this ideal, and to the very spirit of this nation. It’s time for George Bailey to come home, and bask in the fellowship of a society of people who strive to lift one another up, and help bear one another’s burdens.