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.
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