Congress would never pass the Civil Rights Act of 1964 today. There would be no need. And therein lies the root of the deepening crisis facing the republic.
The Civil Rights Act was a major expansion and clarification of civil rights law in the United States and as such touched on core constitutional issues. It took many years and a groundswell of public support to convince recalcitrant Democrats to pass the legislation. As a result, a strong majority of Americans (58 percent) were persuaded to support the Civil Rights Act when it passed in 1964. Now, more than 50 years later, it enjoys an approval rating topping 80 percent..
But such a campaign to persuade the American people and earn their support would not—does not—happen today. Today, such important matters are diligently kept from the hands of voters and handed over to judges and powerful commissars in places like the Equal Employment Opportunity Commission. No voter persuasion is required.
As a result, the crisis we face today is not one of policy—though there is certainly much room for improvement on that front—but rather a crisis of polity. And for decades conservatives have been fighting (and sometimes winning) policy battles, only to lose the war for the polity. And, to mix a metaphor, that’s the ballgame. Lose the polity and you lose everything. The combination of inexorable growth in the judicially sanctioned and patently anti-republican administrative state and the increasingly imperial judiciary itself have undermined the sovereignty of the people acting in their constitutional majority.
For every policy victory there has been a much broader and more lasting blow struck against the polity by executive actions or through the courts. When Congress refused to pass cap and trade legislation, Obama used the EPA’s Clean Power Plan to muscle states into joining regional cap and trade scheme. And court cases like Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., Roe v. Wade, or King v. Burwell all expanded the power of the executive or the judicial branches at the expense of the legislative – to say nothing of the specific issues decided by the case.
In King v. Burwell, for example, Chief Justice John Roberts justified his decision upholding key provisions of Obamacare on the basis that they represented a use of Congress’ taxing power—despite the fact that the law’s authors and supporters specifically stated that it was not a tax. In doing so he not only rescued the legislation from a well-deserved grave but also undermined the constitutional prerogatives of the legislature that passed it. What the Supreme gives it can also take away. The successful welfare reforms passed in the 1990s, for example, have mostly been undone by a hostile executive branch—to the detriment of welfare recipients and the nation—but Chevron, Roe, and King survive.
Since the early 1980s, conservative think tanks and academics have been busily offering well-conceived, often highly effective policy proposals for specific, identifiable problems facing the country. These have included innovative tax proposals starting with Jack Kemp’s tax reforms in the 1970s, deregulation in the 1980s, and welfare reform in the 1990s. Yet the size and scope of the federal government is larger than ever.
Lest we think all the blame for the growth of the leviathan state lays at the feet of Democrats, we should recall that it was the Republican Senators who rode to victory on Reagan’s coattails in 1980 that killed his initiative to shutter the Department of Education. And it was George W. Bush who expanded that Department’s power over the states when he signed No Child Left Behind in 2002. It was also Bush who gave us the largest expansion of the welfare state between LBJ and Obama when he sponsored the creation of Medicare Part D in 2003. It turns out that “compassionate conservatism” looks, walks, and quacks a lot like a Progressive duck.
After decades of “movement conservatism,” regulations are more burdensome than ever and worse, they are made largely in secret by unaccountable, unelected czars empowered by the administrative state. But here again, we haven’t seen the forest for the trees. The specific rules and regulations promulgated by the alphabet soup of federal agencies that govern our lives matter less than how they are made. Removing lawmaking from the hands of the people and their elected representatives creates poorly conceived, often overbearing rules that are virtually impossible for laymen to know and understand (the federal tax code alone runs over 75,000 pages). When the laws are unknowable the rule of law becomes a farce.
The laws themselves taken individually may offend against our constitutional rights, but even then they are only a symptom. The disease is the process by which they were made. Conservatives have trained their fire on the policies and not the process and all the while the leviathan state has grown steadily larger and more powerful. All of the policy wins have been palliatives – aspirin to cure a headache caused by brain cancer. And while conservatives have been focused on policy, the Left has pursued the same agenda since Woodrow Wilson declared war on the written constitution. Wilson wrote in 1912:
Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All the progressives ask or desire is permission—in an era when “development,” “evolution,” is the scientific word—to interpret the Constitution according to the Darwinian principle…
Oh how the Constitution has evolved—from the application of the plain language of the document to the divining of emanations and penumbras used in deciding Griswold v. Connecticut in 1965—just one year after the Civil Rights Act. In the 50 years since Griswold the Court has grown more brazen and its attachment to the written constitution more tenuous. The Left has dispensed with the pretense of allegiance to the Constitution or a reliance on the support of the people.
Abortion remains contentious not primarily because it is a significant moral issue involving the taking of life, but because abortion law has been removed from the normal political sphere. It has been taken out of the hands of the legislative branch and seized by a self-aggrandizing judiciary. Removing an issue from the political sphere guarantees conflict. For all the good work done at the state level to pass common sense restrictions on abortion, everyone knows that the final arbiter will be the Supreme Court which is more strident in their defense of abortion rights found nowhere in the text of the constitution than they are of rights explicitly guaranteed like the freedom of speech and the right to keep and bear arms.
The last serious effort to persuade voters on a piece of civil rights legislation was 20 years in California when Ward Connerly put Proposition 209 in front of the people of California in 1996. He bypassed the legislature, but at least he made his case to the people. Still, that was a generation ago, it was in many ways just a reassertion of what was already found in the Civil Rights Act of 1964 and was in that sense not breaking any new ground, and in any event everyone knew that after it passed the Supreme Court would have the final word.
Almost 20 years later It was telling that gay marriage advocates didn’t even mount a serious attempt to pass federal legislation. This was owing in part to the fact that marriage law was left to the states until Obergefell v. Hodges which effectively made the states agents and administrators of federal marriage policy. This follows the pattern of so many other matters once held to be strictly within the sovereign jurisdiction of the several states but where the states have had their rightful powers seized by the federal government. Think of matters ranging from the drinking age (now set by all states at 21 under threat of loss of federal highway funds) to the Common Core education mandates that take authority not just from states but from locally elected school boards.
When the legislature is bypassed it reflects a certain political cynicism, but the lack of outcry against the loss of the people’s power to determine the laws under which they live underscores a lack of appreciation for the importance of constitutional government. That we live under a written constitution accessible and understandable to all citizens is the point of free government—it is the desired outcome. Within the framework of a constitutional system based upon the power of a sovereign people policies can change. And they do. Often. But the system is an end in itself designed to protect the natural rights of its citizens and promote equal justice under the law and it must remain intact.
It is true that there is an implied hope or even an expectation of a more perfect union embedded within our constitution but it’s the expectation of more perfect, not perfect. The end constantly sought but never fully attained. Part of that end was the constitution itself which formed the best framework within which to seek the good of the American people.
The Founders realized, based on hard experience and a knowledge of human nature, that the best way to secure the blessing of liberty—and more to the point—to promote justice, is through representative constitutional government. If the polity they established is maintained, then the the republic will be more likely to enact more just policies that meet the needs of the people and to self-correct, but always with the consent of the governed. The centrality of first obtaining the consent of the governed—that to govern any other way is itself unjust—has been lost.
Just 50 years ago sweeping legislation was enacted that had profound constitutional implications. But to the credit of the nation, voter support was sought as a first and necessary precondition. Today, the ruling class claims a monopoly on virtue and uses it as a justification to create laws and regulations that do not have broad public support. Not content with justice as a standard, they appeal to a modified and superior (or so we are assured) social justice to silence opposition: “There’s no time to convince voters, social justice delayed is social justice denied!”
But circumventing voters violates a more fundamental principle of justice and one that is the basis for free government. As long as we tolerate interest groups and cynical pols bypassing the legislative branch to enact their policies over the heads of the people we will be empowering a casual totalitarianism masquerading as the rule of law.