Summary: We can look ahead to the next steps in the quiet coup overthrowing the Second Republic, that’s forging a new America. Here are some insightful articles about what to expect.
Excerpts appear below; please read these articles in full.
- “Is this 1936?” by David Bernstein (Prof Law, George Mason U, bio)
- “Conservative Southern Values Revived: How a Brutal Strain of American Aristocrats Have Come to Rule America” by Sara Robinson
- For more information
But first, some words about the social contract that is America:
(1) Preparing for the next phase of the Court shaping America like a pot on the wheel.
Now that the Court has voted 5-4 to uphold the ACA, I want to suggest a different historical analogy, also focusing on 1936. What if the Court’s ACA decision, like the Court’s controversial 1936 ruling invalidating a state minimum wage law, turns out to the last gasp of a dying constitutional regime?
In the early part of the 20th century, traditional views of legislative authority gave way to more statist Progressive assumptions. While Progressives thought of themselves as under siege, in retrospect we can say that the pre-New Deal era was one of Progressive dominance. The problem legal Progressives faced, however, was they were never able to achieve a strong majority on the Supreme Court. Disappointing appointees (McReynolds by Wilson), bad luck in the timing of vacancies (Harding’s 4 nominees), and an unwillingness by most of the Justices with a long pre-Court Progressive record to reconsider constitutional verities stymied Progressive reform on the Supreme Court. The Court, nevertheless, did gradually & grudgingly uphold most of the novel regulations that came before it, but failed to relinquish the underlying ideological underpinnings of traditional constitutional doctrine.
The old Warren Court regime is not as thoroughly discredited as the Gilded Age Court was by the 1930s, and the modern era is perhaps not as thoroughly conservative as the early twentieth century was Progressive. But conservative jurists have made remarkable strides in persuading legal elites that originalism & textualism are first rather than last resorts. Conservatives have controlled the Executive Branch for the majority of time since Reagan was elected, but a combination of disappointing appointments (Souter), inopportune timing on the loss of the Senate (Bork), and a reluctance by various of the conservative Justices, save Thomas, to question the underpinnings of the preexisting constitutional regime has stymied radical change.
But what if Mitt Romney gets elected, and what if the current 5-4 conservative majority ultimately becomes a 7-2 majority, as Breyer & Ginsburg leave the Court? The Harriet Miers debacle suggests that conservative constituencies will no longer tolerate a Republican nominee who is not a “sure thing.”
As important, the ACA litigation shows that ideas once deemed beyond the pale in “respectable” legal circles have now become mainstream among elite conservative lawyers. Indeed, though the individual mandate was upheld, the 5 conservative Justices expressed a willingness to put real, substantive limits on the scope of the Commerce power (Lopez and Morrison were easily evaded). The 5 conservatives, plus 2 liberal Justices, also endorsed substantive limits on the Spending power, the first time such limits were applied to Congress since the 1930s.
Like the other Justice Roberts in the 1936, the current Justice Roberts unexpectedly voted with a 5-4 majority to continue the old regime. But while the Justices continued to dance in 1936, the music had died. Not only did the first Justice Roberts soon become a consistent vote to uphold New Deal legislation, but a series of FDR appointments unleashed a wave of liberal jurisprudence that ultimately went far beyond the Progressives’ original goal of keeping the courts out of economic matters.
The conservatives on the Court have already rewritten the constitutional law of campaign finance, sovereign immunity, and more, but only tenuously with 5 vote majorities. A 7-2 or better majority would expand those rulings, but, more important, expand conservative jurisprudence into areas not currently considered in play.
What would happen to the Contracts Clause with a 7-2 conservative majority? Could vouchers for religious grade schools become mandatory, not just permitted? What powers now denied to the states would be allowed, and what powers now allowed to the federal government would be denied? Or maybe disputes between more “activist” and less “activist” Justices, and between libertarian-leaning and more authoritarian conservative would mimic the infamous Douglas-Black-Frankfurter debates of the early Warren Court. The Old regime would be overthrown, but progress toward affirmative conservative goals for an indefinite period of time.
No one can accurately predict these things, of course, just as no one could have predicted that FDR’s war on an activist judiciary would ultimate result in Brown v. Board of Education, Roe v. Wade, and the like.
(2) Property rights become the most important rights in America
The ideological and religious foundations of the Second Republic have eroded away. Classical liberalism (in its 18th and 19th century forms) is almost extinct, no longer vital in people’s hearts — reducing our ability to see ourselves as a community, a people — and to take collective action.
Christianity (as defined in the New Testament) has been replaced on the right by libertarianism, which esteems individuals over communities, sees protection of property as the highest right, and considers empathy for the less fortunate as inimical to acquisition and hoarding of property. These come together in the fanaticism over gun rights, with its delusions of individual supremacy and self-sufficiency.
Where did this cultural virus originate? For one source see “Conservative Southern Values Revived: How a Brutal Strain of American Aristocrats Have Come to Rule America“, Sara Robinson, AlterNet, 28 June 2012 — “America didn’t used to be run like an old Southern slave plantation, but we’re headed that way now. How did that happen?” Excerpt:
It’s been said that the rich are different than you and me. What most Americans don’t know is that they’re also quite different from each other, and that which faction is currently running the show ultimately makes a vast difference in the kind of country we are.
Right now, a lot of our problems stem directly from the fact that the wrong sort has finally gotten the upper hand; a particularly brutal and anti-democratic strain of American aristocrat that the other elites have mostly managed to keep away from the levers of power since the Revolution. Worse: this bunch has set a very ugly tone that’s corrupted how people with power and money behave in every corner of our culture. Here’s what happened, and how it happened, and what it means for America now.
… Since shortly after the Revolution, the Yankee elites have worked hard to keep the upper hand on America’s culture, economy and politics — and much of our success as a nation rests on their success at keeping plantation culture sequestered in the South, and its scions largely away from the levers of power. If we have to have an elite — and there’s never been a society as complex as ours that didn’t have some kind of upper class maintaining social order — we’re far better off in the hands of one that’s essentially meritocratic, civic-minded and generally believes that it will do better when everybody else does better, too.
The Civil War was, at its core, a military battle between these two elites for the soul of the country. It pitted the more communalist, democratic and industrialized Northern vision of the American future against the hierarchical, aristocratic, agrarian Southern one. Though the Union won the war, the fundamental conflict at its root still hasn’t been resolved to this day. (The current conservative culture war is the Civil War still being re-fought by other means.) After the war, the rise of Northern industrialists and the dominance of Northern universities and media ensured that subsequent generations of the American power elite continued to subscribe to the Northern worldview — even when the individual leaders came from other parts of the country.
… From its origins in the fever swamps of the lowland south, the worldview of the old Southern aristocracy can now be found nationwide. Buttressed by the arguments of Ayn Rand — who updated the ancient slaveholder ethic for the modern age — it has been exported to every corner of the culture, infected most of our other elite communities and killed off all but the very last vestiges of noblesse oblige.
It’s not an overstatement to say that we’re now living in Plantation America. As Lind points out: to the horror of his Yankee father, George W. Bush proceeded to run the country exactly like Woodard’s description of a Barbadian slavelord. And Barack Obama has done almost nothing to roll this victory back. We’re now living in an America where rampant inequality is accepted, and even celebrated.
Torture and extrajudicial killing have been reinstated, with no due process required.
The wealthy and powerful are free to abuse employees, break laws, destroy the commons, and crash the economy — without ever being held to account. The rich flaunt their ostentatious wealth without even the pretense of humility, modesty, generosity, or gratitude.
The military — always a Southern-dominated institution — sucks down 60% of our federal discretionary spending, and is undergoing a rapid evangelical takeover as well. Our police are being given paramilitary training and powers that are completely out of line with their duty to serve and protect, but much more in keeping with a mission to subdue and suppress. Even liberal cities like Seattle are now home to the kind of local justice that used to be the hallmark of small-town Alabama sheriffs.
Segregation is increasing everywhere. The rights of women and people of color are under assault. Violence against leaders who agitate for progressive change is up. Racist organizations are undergoing a renaissance nationwide.
We are withdrawing government investments in public education, libraries, infrastructure, health care, and technological innovation — in many areas, to the point where we are falling behind the standards that prevail in every other developed country.
Elites who dare to argue for increased investment in the common good, and believe that we should lay the groundwork for a better future, are regarded as not just silly and soft-headed, but also inviting underclass revolt. The Yankees thought that government’s job was to better the lot of the lower classes. The Southern aristocrats know that its real purpose is to deprive them of all possible means of rising up against their betters.
The rich are different now because the elites who spent four centuries sucking the South dry and turning it into an economic and political backwater have now vanquished the more forward-thinking, democratic Northern elites. Their attitudes towards freedom, authority, community, government, and the social contract aren’t just confined to the country clubs of the Gulf Coast; they can now be found on the ground from Hollywood and Silicon Valley to Wall Street. And because of that quiet coup, the entire US is now turning into the global equivalent of a Deep South state.
As long as America runs according to the rules of Southern politics, economics and culture, we’re no longer free citizens exercising our rights to life, liberty and the pursuit of happiness as we’ve always understood them. Instead, we’re being treated like serfs on Massa’s plantation — and increasingly, we’re being granted our liberties only at Massa’s pleasure. Welcome to Plantation America.
(3) For More Information
To see all posts about this topic, go to the FM Reference Page America – how can we stop the quiet coup now in progress?
Recording our eroding rights. One by one they go away:
- An Appalling Threat to Civil Liberties and Democracy, 8 August 2010
- Cutting down the tree of liberty, 9 September 2010 — Government secrets trump fair trials.
- The guilty ones responsible for the loss of our liberties, 11 September 2010
- Let’s gaze upon the corpse of the Fourth Amendment, 12 October 2011
- Another bill before Congress pushing the USA further into the dark of endless war, stripping away our liberties, 28 November 2011
- An important article to read about another example of the fading rule of law in America, 29 December 2011
- Ask the mineshaft: what’s gone wrong with America? The decay spreads faster than I imagined possible., 2 March 2012
- How to Fund an American Police State (aka Weaponizing the Body Politic), 5 March 2012
- Our leaders explain that we’re sheep. Our role: to obey. Rebel sheep will be imprisoned or destroyed., 7 March 2012