Monday, November 29, 2021

Unite and Get Ready to Fight

By Mario Loyola

Saturday, November 27, 2021

 

The Wall Street Journal recently ran one of those opinion pieces you know you’ll remember years later. In “The Impossible Insurrection of January 6,” the Journal’s Barton Swaim argues that the invasion of the Capitol by a mob of Trump supporters shouldn’t be considered an insurrection or an attempted coup, chiefly because, given progressives’ near-total control of our institutions, it had no chance:

 

It is irrefutable that some form of modern liberalism or progressivism prevails in nearly every sphere of American public life: the news media, the universities, K–12 education, the entertainment industry, corporate boardrooms, mainline religious organizations, college and professional sports (excluding the fans), much of U.S. military bureaucracy, and state and federal agencies.

 

Americans are increasingly aware of progressive dominance of society — and outraged at the woke mob’s totalitarian tendencies — but they despair at being able to do anything about it. Growing numbers of conservatives and independents sense that whatever the results of any election, the progressive agenda always wins. As in other instances of democratic failure, they are shifting their allegiances away from democratic institutions to charismatic personalities, from American ideals to cultural identity, from conservatism to a bipolar mix of nationalism and national divorce.

 

Alas, the progressive state is like quicksand: Do nothing, and you will sink; but struggle against it — without the right strategy — and you will sink even faster. Though the Trump presidency was one of significant policy successes for conservatives, the MAGA impulse — more visceral than strategic — often lashes out in ways that only reinforce the progressives’ dominance of the state.

 

Progressives seek to salve market failure and social injustice, but their remedy is to make some groups more equal than others — “equity,” in woke parlance. The progressive constitution is not one that any country would broadly choose if given a choice, and it cannot maintain the country’s trust, as we are seeing. Its trajectory is socialist, and like all socialist programs, it is a road to serfdom. Accommodation is surrender, and surrender is not an option. Neither is divorce, and neither is exile. If democracy is to prevail, we must defend it here and now.

 

Anatomy of a ‘Coup’

 

The harrowed narrative of a near-coup, Swaim writes, is a delusion that “springs from the American liberal elites’ failure to accept the fact of their own predominance.” He warns, “The danger is that this paranoia keeps liberals from understanding their own dominant position — and acknowledging how illiberally they often exploit it.”

 

I was horrified by the events of January 6, for the same reason I was horrified in 2011 when progressive protesters invaded the Wisconsin state capitol to block a budget-reform bill; and in 2013 when they shouted down an abortion bill in the Texas legislature from the rafters; and in 2020, when they spent a good part of the summer destroying public monuments, besieging federal buildings, abusing the police, and attacking local youngsters for trying to put out their fires when the responsible authorities were too lily-livered to do their jobs.

 

What separates democracy from totalitarianism, and from sheer barbarism, is the rule of law, of which the most precious part is our Constitution and its provisions for elections and for making laws. I don’t believe President Trump intended his supporters to overrun the Capitol, chiefly because I don’t think he really knew what he was doing. But the riot was a foreseeable result of rousing his supporters to intimidate and influence the largely pro forma certification of electors then unfolding in Congress. Once the rabble overwhelmed the police barricades and began flooding into the Capitol, it became — at the very least — an assault on our constitutional order. The “attempted coup” label is not as “preposterous” as Swaim thinks.

 

Still, Swaim’s broader point is hard to discredit if you consider the counterfactual. Imagine what might have happened if, on January 6, Trump loyalists had enjoyed overwhelming majorities in both houses of Congress and in the state legislatures of key battleground states. And imagine further that the vice president, Senate majority leader, and speaker of the House were all supportive of Trump’s bid. And imagine that the mainstream media was insistently reporting that the election had been stolen. In that case, the result of January 6 might indeed have been quite different.

 

Something similar has already happened in America. After the election of 1936, which Franklin D. Roosevelt won in a historic landslide, the Democrats had overwhelming majorities in both houses of Congress and held most state governments. In Roosevelt’s first term, the Supreme Court had struck down one New Deal program after another for exceeding the federal power to regulate commerce “among the several states,” which had always been understood to be severely limited in a constitutional order dominated by state and local government.

 

But with the day’s mainstream media demanding national action to alleviate the ravages of the Great Depression, Roosevelt decided to intimidate the Supreme Court into submission: Early in 1937, he threatened to pack the Court with six additional justices and thereby form a 10–5 majority in favor of his massive expansion of federal power over every aspect of the economy. Many Democrats, including FDR’s own vice president, were appalled by the threat, but in the end the threat was enough. That year, the Court abdicated its role as guardian of the Constitution’s limits on federal power and began rubber-stamping New Deal programs that the justices knew were unconstitutional.

 

Thus did FDR deal a potentially fatal blow to the original Constitution. It was a progressive coup, and it worked because progressives already controlled key institutions of the state. It undermined the framework of limited and enumerated federal powers — the compromise without which the original Constitution would never have been ratified — and ushered in the unbridled centralization of government power that Patrick Henry warned of when he vehemently opposed the proposed constitution during Virginia’s ratification debates more than two centuries ago.

 

Milestones on the Road to Serfdom

 

The New Deal was preceded by — indeed, predicated on — Woodrow Wilson’s creation of the administrative state and its myriad of commissions and agencies beholden to nobody but their own uniformly progressive apparatchiks. Wilson, a southern Democrat raised amid the ruins of the Confederacy, had debuted on the national scene with a book roundly critical of the Constitution, Congressional Government: A Study in American Politics (1885). The book was based on his Ph.D. thesis at Johns Hopkins University, then a center of progressive elites’ ominous new infatuation with the authoritarian socialist technocracy of Bismarck’s Germany.

 

In the decade after the New Deal and the world war that followed it, there was, as Swaim writes, no conservatism to speak of. The progressive program reigned supreme — in both parties. Into that vacuum swept the next major milestone in the progressive consolidation of government power, carried forward this time — and not for the last time — by a Republican.

 

A national highway system did not necessarily present a constitutional problem. But the one launched by President Dwight Eisenhower roped state governments into building and operating it, by providing grants to the states and attaching all kinds of conditions to the money. The device of conditional federal funds would go on to become one of the progressives’ main tactics in advancing the federal takeover of state governments, in health-care policy (Medicaid), state K–12 education (Title I funds for school districts in poor areas), state university education (Title IV federal student aid), and hundreds of other programs embedded in every state’s budget.

 

The next decade brought the Great Society programs of Lyndon B. Johnson, which created the progressive welfare state as we know it today. The elevated welfare and minimum-wage laws of the Great Society may have had noble intentions. But with their ruinous impacts on the families and communities of blacks and other minorities, the programs seemed almost perfectly designed to trap the descendants of slavery and segregation into an insidious new political serfdom, barred from upward mobility and dependent on the very same Democratic Party that had suppressed and exploited them for generations.

 

By now a conservative reaction was well under way, spearheaded, as Swaim notes, by this magazine’s founder, William F. Buckley Jr., around whom coalesced the remaining resistance to the New Deal and the much more vigorous opposition to the Great Society. Yet while this powerful conservative resurgence identified with the Republican Party, that party did not fully identify with it, and it never entirely has.

 

In 1968, the U.S. elected Richard M. Nixon, the most progressive Republican president ever. He took just a few years to erect the behemoth environmental-regulatory state that we know today. As with the federal highway system, the results were often laudable: America’s air and water are far cleaner today than they were then.

 

But the new schemes were deeply corrosive to the Constitution. Translating into the regulatory context the coercive conditions that had underpinned the Great Society programs on the fiscal side, Nixon’s programs coerced states into implementing a spate of new federal laws, resulting in a sweeping federal takeover of yet another area of state government: environmental regulation. Today, state environmental agencies are really just field offices of the federal government. Most citizens don’t realize that when they are electing state officials — be they Republican or Democrat — they are mostly electing the handmaidens of national progressive control.

 

That, in brief, is how progressivism has “triumphed everywhere,” as Swaim notes: “Traditional moral values have long since fled from the public square, every new constituency claiming persecution has received special political rights, the welfare state is in a permanent state of growth, and there is no obvious limit to what the federal government will spend in pursuit of liberal aims.”

 

Government by, of, and for Special Interests

 

Swaim only touches on the key point: the special political rights that progressives have been able to gain for each new constituency. A century of progressivism has turned our system of government into a legalized version of Tammany Hall: a bazaar in which every special interest can take advantage of the general public for its own benefit by lobbying for this or that budget earmark. Even worse are the off-budget hidden transfers of government-created cartels and monopolies, schemes such as occupational licensing, agricultural-marketing boards, public-sector unions, the grotesque ethanol program, and the horrendous Jones Act.

 

However noble its intentions, the progressive constitution boils down to rule by coalitions of special interests organized for the extraction of surplus from the productive part of society. Hence, it is with some justice that Swain lays Trump’s ascent partly on the shoulders of progressives: “His nomination in 2016, and even more his election to the presidency, was an anguished outcry against decades of aggressions . . . a frantic attempt to stay the hand of an uncompromising cultural leftism.”

 

The same anguish fed the awful controversy over the 2020 election. Trump’s behavior in the aftermath of the election maximized the damage to himself, the party, and the country. But the very fact that tens of millions of Americans were ready to believe the election had been stolen is another signal that a large part of America is losing faith in our democratic institutions. According to the latest Pew Poll, trust in government among conservative Republicans is now barely 5 percent. That could be a very dangerous state of affairs. America is a different place from Europe, and the 2020s are not the 1930s. But we should not forget that fascist movements arose in Europe where people lost faith in democratic institutions.

 

Where I disagree most strongly with Swaim — or, I should say, where I hope he’s wrong — is the contention that “American conservatism doesn’t have the power, even if it wanted to, to sweep aside cobwebbed liberal institutions and remake them along the lines of a conservative philosophy.” If democracy is to survive, that simply can’t be true.

 

Time to Fight Back

 

It’s no longer enough for conservatives to play defense. Conservatives should be fighting for constitutional recovery, with the aim of reforging a sustainable democracy in which all Americans can place their faith. Toward that end, a coherent program of recovery would include the following:

 

Restore the power of the equal-protection clause. The great obstacle standing in the way of the race-Marxists’ twisted vision of “equity” is, ironically, the principle of “equality.” Enshrined in the equal-protection clause of the Constitution, the merit-based principle of equality before the law is often what the race-Marxists mean when they use phrases like “white supremacy” and “systemic racism.” Like other forms of socialism, the progressive program seeks equality of outcome, but as Friedrich Hayek explained, equal outcomes require making the laws themselves unequal in their application, which is to say arbitrary. This is why socialism must always lead to arbitrary dictatorship. It is also why enshrining differential treatment of races in the law — the political agenda of critical race theory — can only lead to permanent racial castes locked in mutual antagonism.

 

Reaffirm the state’s monopoly of legitimate violence. The assault on the principle of equality before the law has gone hand in hand with a general assault on law and order. Every revolutionary movement begins by trying to co-opt or break the state’s monopoly of legitimate violence so that its adherents can impose their own law. That is what prompts those who defend BLM riots to insist on treating the Trump supporters’ assault on the Capitol differently. But every instance of political violence must be met with immediate and overwhelming force.

 

Restore the separation of powers among the federal branches. Having ceded its constitutional role by delegating law-making power to the executive, Congress can no longer be counted on to defend its own prerogatives. Today’s Congress stands by in muted impotence as one massive legislative program after another is implemented through “rulemaking authority.” To restore the proper operation of government, Congress must be compelled to exercise the power the Constitution vests in it by severe restrictions on its ability to delegate that power. Something like the REINS Act is desperately needed, to require congressional approval of every major new regulation.

 

Restore the unitary executive — and end the administrative state. Just as the executive branch must be put back in its box, so too must the unitary executive be restored. It cannot be the case that an agency exercising executive functions must be controlled by the president but an agency exercising legislative and judicial functions in addition to executive ones must be controlled by nobody. The executive branch must reabsorb the executive functions now being unconstitutionally exercised by unaccountable independent agencies. The steady accumulation of all government powers in the hands of a supreme administrative state is the single gravest long-term threat to democracy, and it must be reversed.

 

Separate the operations of federal and state governments — and learn to recognize unconstitutional conditions. States must stop taking federal money and must forswear any role in implementing federal law, beyond the basic requirement that state courts must enforce the supremacy of federal law. The last half century has shown that “cooperative federalism” amounts to federal control of the states. That is because, as Philip Hamburger shows, governments purchase the public’s submission by placing conditions on things people need.

 

Return control of most matters to state and local governments. Federal protection against the abuses of state and local governments is necessary, but that is no justification for federal control of everything. Making policy at all levels a matter of national majority rule maximizes the number of people who will be unhappy with the result, and is a major reason why Americans are losing faith in our democratic institutions. Local control can restore the local variety that was the richness of America.

 

School choice and parental say in public education. The recent elections in Virginia demonstrated that wresting control of our children’s education from teachers’ unions and the public-education bureaucracy is a matter of great urgency. Children are being indoctrinated in the perspective of critical race theory, which is antithetical to American values. As taxpayers who support the nation’s school system, parents must act in their own and their children’s interests to reverse this trend.

 

Restore the freedom of contract and the right to work, and focus antitrust laws on the cartels and monopolies created by government. In Lochner v. New York (1905), the Supreme Court invalidated a state law limiting the number of hours an employee could work in a bakery as an infringement on the freedom of contract and its implied right to work. For progressives, the ruling exposed workers to the ravages of competition. One of the original objectives and proudest successes of the early progressives was to end the Lochner era, and — to paraphrase Richard Epstein — make the world safe for cartels and monopolies created by federal and state governments. Democracy requires the freedom of contract, the protection of private-property rights, and free markets.

 

Make America Free Again

 

The MAGA crowd rightly thinks that Big Tech and big corporations are indispensable to the progressives’ domination of the state. But they wrongly conclude that the solution is to extend government control over them and regulate them like public utilities. The fallacy of this approach should be obvious: The problem is not that Big Tech supports progressives, but rather that because progressives dominate the institutions of state, Big Tech supports them. Silicon Valley knows what side their bread is buttered on. Extending the state’s control over big corporations, or even breaking them up (through regulatory actions that would necessarily reduce output and raise prices), would be jumping from the frying pan into the fire, for it would only further consolidate the progressives’ control of our institutions.

 

It is not the only area in which the MAGA impulse is misguided. During the Trump administration, in which I served at the White House Council on Environmental Quality, there was a sweeping effort to return implementation of federal environmental programs to state officials and give them greater flexibility: This is what GOP state officials wanted. But while the move enhanced the power of those officials, the long-term effect was merely to entrench their offices as deputies of federal government, further eroding the crucial separation of federal and state governmental operations.

 

Similarly, the quaint mid-20th-century economic nonsense on antitrust law that was thoroughly debunked by Robert Bork’s Antitrust Paradox is making a worrisome revival among conservatives. Even worse, this revival takes little account of the worst kind of monopolies and cartels: namely, those shielded from competition by the government. So we are treated to the depressing spectacle of national conservatives using antitrust to attack America’s most innovative and beneficial companies, while ignoring the government cartels — like those created by the Jones Act and the sugar program — that have ruined whole industries and impose unconscionable hidden costs on American families every day.

 

Relatedly, there is an increasing tendency among conservatives to think that protectionist laws are preferable to globalization, which chiefly benefits foreign competitors. This is not so much wrong as wrong-headed. What benefits our foreign competitors is not globalization but rather the punishing levels of regulation and taxation that diminish our companies’ and our workers’ ability to compete in an inescapably global economy. Protectionism only makes that problem infinitely worse. China is a special case, and its pattern of violating the rules of international trade must be punished, by extraordinary measures if necessary. But every protectionist measure boils down to a government-created cartel — the worst kind of cartel. Conservatives must relearn the insights of a generation ago: What our companies need protection from is not foreign competitors, but our own government.

 

Reclaiming the institutions of state for pluralism and equality, and restoring a democracy that the American people can believe in, will be the work of generations. And because it will take a long time, we must start now. It’s time to end the bickering among conservatives, unify the movement behind an agenda of constitutional restoration, and keep fighting until we prevail.

No comments: