we the people, session viii, "living constitution" vs. original intent

The U.S. Constitutionsession viii

“Living Constitution”vs

“Original Intent”

Hillsdale College, “Constitution 201”, September 17, 2012

The U.S. Constitutionsession viii

“Living Constitution”vs

“Original Intent”

major points of this session

Progressivism-the Administrative State

Judicial & Regulatory Activism

‘60s Heyday

Conservative Reaction

Today

Progressivism-The Administrative

State

The Dark Side

There is no question that the motive of the Progressive movement was to help the group which FDR labelled “the forgotten man.” But, sadly, that was also the motive of the Bolshevik Revolution in Russia. Even, in a way, the fascist revolutions in Italy and Germany at the same time. All sought in different ways to solve the injustices which were associated with the Industrial Revolution which began in the preceding century and showed no signs of slowing down.

jbp

The Dark Side

There is no question that the motive of the Progressive movement was to help the group which FDR labelled “the forgotten man.” But, sadly, that was also the motive of the Bolshevik Revolution in Russia. Even, in a way, the fascist revolutions in Italy and Germany at the same time. All sought in different ways to solve the injustices which were associated with the Industrial Revolution which began in the preceding century and showed no signs of slowing down.

It was this similarity of goals which led Jonah Goldberg to write his 2008 best selling book, Liberal Fascism•. Many Progressives were initially attracted to these European movements which claimed to champion the masses. All of them believed that the state power could be used to protect “the Many” from “the Few.” Hence, the “Socialist” in the NSDAP (National Socialist German Workers Party), the full name of the Nazi Party.

jbp

The Dark Side

“...it reached #1 on the New York Times Best Seller list of hardcover non-fiction in its seventh week on the list….-Wikipedia

The Election of 1912-Dueling Progressiveswhen TR failed to win the Republican nomination he bolted and created the Progressive or “Bull Moose” Party

that same summer Woodrow Wilson won the Democratic Party nomination on a Progressive platform, defeating the more conservative candidates

But Which Progressive?

TR offered an amazingly forward-thinking agenda with the slogan New Nationalism

a National Health Service; Social Insurance to provide for the elderly, the unemployed and the disabled; a minimum wage law for women; an eight hour workday; a federal securities commission; workers’ “comp” for work-related injuries; an inheritance tax; and a Constitutional amendment to allow a federal income tax

the political reforms proposed included women’s suffrage; direct election of Senators; and primary elections for state and federal nominations

however, the main thrust was against the domination of politics by business interests: strict limits and disclosure of political campaign contributions; registration of lobbyists; and recording and publication of Congressional committee proceedings

Wikipedia

But Which Progressive?

Wilson countered with a program titled The New Freedom

Tariff reform-carried out by the Underwood Tariff Act of 1913, lowering tariffs for the first time since the Civil War, much to the irritation of the protectionist lobby

Business reform-the Federal Trade Act (1914) created the Federal Trade Commission (1915) to enforce the terms of the Clayton Anti-Trust Act, further advancing the growth of the Administrative State

Banking reform-the Federal Reserve System was created to gain control of this capitalist pinnacle. It was followed by the Federal Farm Loan Act (1916) to establish Farm Loan Banks to support farmers and make this most independent American class clients of the government

Wikipedia

The Election of 1912-Dueling Progressiveswhen TR failed to win the Republican nomination he bolted and created the Progressive or “Bull Moose” Party

that same summer Woodrow Wilson won the Democratic Party nomination, defeating the more conservative candidates

the other two candidates, the Republican Taft and the Socialist Party nominee, Eugene Debs, never really stood a chance

November, 1912-the two Progressive candidates would garner 69.2% of the popular vote. •The states carried was even more of a blowout--Wilson-40; TR-6; Taft-2; and Debs-0

The Election of 1912-Dueling Progressives

when TR failed to win the Republican nomination he bolted and created the Progressive or “Bull Moose” Party

that same summer Woodrow Wilson won the Democratic Party nomination, defeating the more conservative candidates

the other two candidates, the Republican Taft and the Socialist Party nominee, Eugene Debs, never really stood a chance

November, 1912-the two Progressive candidates would garner 69.2% of the popular vote. •The states carried was even more of a blowout--Wilson-40; TR-6; Taft-2; and Debs-0

the nation was clearly ready for a centrist Presidency--not an Old Guard Republican, not the “dangerous Radical” Socialist

Wilson and the Congress Implement Progressivismbanking reform (creation of the Federal Reserve System) was followed by tightening anti-trust measures (the Clayton Act)

the labor movement gained a powerful ally in the White House

the Progressive Amendments began to be implemented

AM XVI- a 2% tax on income of the wealthiest Americans,proposed by Taft, June, 1909 required an amendment. Ratified, Feb, 1913

AM XVII-direct election of senators-proposed by June, 1912 & quickly ratified less than a year later

AM XVIII-prohibition was the result of decades’ work of the grassroots temperance movement. Many state legislatures had enacted statewide prohibition by 1917 when the amendment to the U.S. Constitution was ratified

AM XIX-women’s suffrage was a tougher nut to crack. It required Wilson’s help

Women’s Vote-An Idea whose Time Had Come

1870s-drafted By Anthony and Stanton, introduced in the Senate in 1878. It sat in committee until 1887, when it was rejected, 16-34

Women’s Vote-An Idea whose Time Had Come1870s-drafted By Anthony and Stanton, introduced in the Senate in 1878. It sat in committee until 1887, when it was rejected, 16-34

the next three decades were called “the doldrums,” no progress

1911-12--successes in the western States revived the suffragettes

These successes were linked to the 1912 election, which saw the rise of the Progressive and Socialist parties, as well as the election of Democratic President Woodrow Wilson. Not until 1914 was the constitutional amendment again considered by the Senate, where it was again rejected.-Wikipedia

Women’s Vote-An Idea whose Time Had Come

1915-1919--the battle continued, close defeats in House and Senate despite the president’s constant pressure. He called a special session of Congress in 1919 to push for success in time for the Election of 1920

June 4, 1919-having passed the House, the proposal was brought before the Senate and, after a long discussion, it was passed with 56 ayes and 25 nays

Within a few days, Illinois, Wisconsin, and Michigan ratified the amendment, their legislatures being in session. Other states followed suit at a regular pace, until the amendment had been ratified by 35 of the necessary 36 state legislatures

August 18, 1920-Tennessee narrowly approved the Nineteenth Amendment, with 50 of 99 members of the Tennessee House of Representatives voting yes. This provided the final ratification necessary to enact the amendment

World War I Brings Unprecedented Federal Economic Controls“burgeoning bureaucracy...created to prosecute the war”--Murphy

10 Aug ’17-Brandeis recommends and Wilson appoints Herbert Hoover to chair the Food Administration (FA)



late fall, 1917-rail bottlenecks hurt production and threatened a coal shortage. Wilson appoints Treasury Secty & son-in-law Wm McAdoo to head U.S. Railroad Administration




“...to fix the shortcomings of the War Department…” the War Industries Board (WIB)

the Overman Act “gave the President carte blanche to restructure the war agencies”

the Army Appropriations Act empowered Wilson to seize and operate common carriers. Labor was given a War Labor Policies Board to head off strikes.He appointed Brandeis’ protegé Felix Frankfurter to head the Shipping Board (SB)




“...to fix the shortcomings of the War Department…” the War Industries Board (WIB)

the Overman Act “gave the President carte blanche to restructure the war agencies”

the Army Appropriations Act empowered Wilson to seize and operate common carriers. Labor was given a War Labor Policies Board to head off strikes.He appointed Brandeis’ protegé Felix Frankfurter to head the Shipping Board (SB)

the war crisis was used to establish a pattern of government agencies which would return 12 years later in the next crisis

The management of the war economy by a phalanx of Federal agencies persuaded many Americans that the government could play an important positive role in the economy. This lesson remained dormant during the 1920s, but came to life when the United States faced the Great Depression. Both the general idea of fighting the Depression by creating federal agencies and many of the specific agencies and programs reflected precedents set in Word War I. The Civilian Conservation Corps, a Depression era agency that hired young men to work on conservation projects, for example, attempted to achieve the benefits of military training in a civilian setting. The National Industrial Recovery Act reflected ideas Bernard Baruch developed at the War Industries Board, and the Agricultural Adjustment Administration hearkened back to the Food Administration. Ideas about the appropriate role of the federal government in the economy, in other words, may have been the most important economic legacy of American involvement in World War I.

Hugh Rockoff, Rutgers University, “U.S. Economy in World War I.” (2010) online at

http://eh.net/encyclopedia/article/rockoff.wwi



Judicial &Regulatory

Activism

Practical

Judicial Beginningsborn in Louisville, KY, to Bohemian immigrant parents who were secular Jews

1876 (age 20)-graduated 1st in his class at Harvard Law School with the highest average in the school’s history

practiced corporate law in Boston but soon became the “Peoples’ Lawyer” taking the side of corporate victims

excluded by anti-Semites from Boston’s high society despite his wealth and legal success

1912-became a leader of the American Zionist movement. That same year he campaigned for Wilson’s brand of Progressivism, rather than TR’s

Louis Dembitz Brandeis1856 – 941

picture in 1916

Brandeis & Wilson

“The initial meeting...occurred on August 28, 1912, and thereafter the candidate drew from the relationship so many ideas that one scholar [Arthur Link] has called Brandeis the “architect” of Wilson’s New Freedom platform….many believed that a Democratic victory in November would result in his nomination as attorney general. However, Brandeis’s earlier campaigns against big business had antagonized many industrial and Jewish leaders, so much so that these leaders [“blackballed” him]. Despite this exclusion from a formal government post, Brandeis continued to be one of Wilson’s key advisors.”

Bruce Allen Murphy, The Brandeis/Frankfurter Connection; The Secret Political Activities of Two Supreme Court Justices. 1982. p. 27

Brandeis & Wilson

In 1916, President Woodrow Wilson nominated Brandeis to become a member of the Supreme Court. However, his nomination was bitterly contested, partly because, as Justice William O. Douglas wrote, "Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible. . . [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court." He was eventually confirmed by the Senate by a vote of 47 to 22 on June 1, 1916,—21 Republican Senators and one Democratic Senator (Francis G. Newlands of Nevada) voted against his nomination—and became one of the most famous and influential figures ever to serve on the high court. His opinions were, according to legal scholars, some of the "greatest defenses" of freedom of speech and the right to privacy ever written by a member of the Supreme Court.

Wikipedia

Justice Brandeis, Professor Frankfurter1894 (12)-born in Vienna, his forbearers had been rabbis for generations, he immigrated to New York City, the Lower East Side ghetto, with his parents

1902 (age 20)-graduated Phi Beta Kappa from CCNY, worked for the Tenement House Department to raise money for Harvard Law

1905-(22)he first encountered Brandeis when the latter delivered a talk to the Harvard Ethical Society

1906-assistant to Henry Stimson, U.S. Attorney for the Southern District of NY (3rd most important job in the Justice Department)

1911-Taft appointed them both to Washington jobs, where he became part of a Progressive circle of bright young bureaucrats

Felix Frankfurter1882 – 1965picture in 1939

“Perhaps it was fated that [they would work together], for they were cut from similar cloth. Though born twenty-six years apart, they shared the background of being Jewish, raised by Old World parents in financial distress, and educated at the Harvard Law School. Both confronted an anti-Semitic Brahmin society...and both won the grudging respect of these groups by their incisive brilliance in both legal and political affairs….Furthermore, their political outlook was nearly identical. Both men were so concerned with what was “right” for the public that they were labeled reformists by their allies and radicals by their enemies.”

Murphy, pp. 35-36

Brandeis & Frankfurter

Progressivism Replaced by “Normalcy”

Progressivism Replaced by “Normalcy”World War I, harbinger of so many evil consequences, first accelerated, then ended the Progressive agenda in Washington

1913-as Wilson took office, he had remarked “It would be the irony of fate if my administration would have to deal chiefly with foreign affairs.”

first came the Mexican Revolution (1910-1920), then WW I. He performed as “schoolteacher to the world,” trying to impose democracy and peace on these “wayward pupils”




1919-he exhausted himself trying to sell the League of Nations to a country which was weary with all the reformist agenda, at home and abroad

1913-Federal Reserve System, 1914-Clayton Act, 1915-Federal Trade Commission

Progressive Amendments: income tax, direct election of senators, Prohibition, women’s vote

the wartime Administrative State




1919-he exhausted himself trying to sell the League of Nations to a country which was weary with all the reformist agenda, at home and abroad

1913-Federal Reserve System, 1914-Clayton Act, 1915-Federal Trade Commission

Progressive Amendments: income tax, direct election of senators, Prohibition, women’s vote

the wartime Administrative State

1920-the country turned to a “father figure” from Ohio who promised a “return to normalcy” and ushered in a 12-year Republican holiday from Progressivism

“...never let a serious crisis go to waste.”-Rahm Emanuel, 2008

1929-almost as soon as Herbert Hoover took office the economic problems of the ‘20s yielded a U.S. market crash, followed by a world depression



1932-although later data would show that the market bottomed that July, the economic woes ushered in a new political era and a return to Progressivism




March 4, 1933- with his dramatic inaugural address, his whirlwind Hundred Days, FDR wrote a new chapter in the history of the Presidency





his “Three R’s” : relief, recovery, and reform--were the epitome of pragmatism

a blizzard of programs and agencies, critics called them Alphabet Soup, followed one another in what became known as the New Deal

behind FDR’s official cabinet was a private group of advisors known as the Brain Trust

FDR’s Braintrust1932- begun during the campaign, a group of Columbia law professors:

Adolf Berle wrote the Commonwealth Club Address (2nd best campaign speech of the 20th century)



Raymond Moley wrote most of the 1st Inaugural, coined “Forgotten Man” & “New Deal”

FDR’s Braintrust

1932- begun during the campaign, a group of Columbia law professors:



Rexford Tugwell-father of the AAA





the “First New Deal” (1933-34)additions:

Gen. Hugh Johnson-headed NRA







Frances Perkins-Labor Sec’ty, helped create CCC & SSA








Harold Ickes-Interior, PWA Director








Harold Ickes-Interior, PWA Director

our old friend-Justice Brandeis, working through his protégée, Prof. Felix Frankfurter







resistance was present from the start. Congressional Republicans fought a rearguard action

but the real ability to check the president and his Democratic legislative majorities lay in the conservative Supreme Court







resistance was present from the start. Congressional Republicans fought a rearguard action

but the real ability to check the president and his Democratic legislative majorities lay in the conservative Supreme Court

The Hughes Court, 1932-1937

Cartoonists have a field day

“5” leapfrogs “4”?the Hughes Court had two predictable factions:

the conservative “Four Horsemen” who could be counted on to oppose FDR’s “creative” experiments



the liberal “Three Musketeers” equally sure to vote in favor of them

“5” leapfrogs “4”?

the Hughes Court had two predictable factions:



the swing votes, Chief Justice Hughes and Justice Roberts, held the balance of power





the 1935 session was a disaster for the First New Deal, on the eve of an election year, no less

“Nine old men…”1935-beginning with Panama Refining Co. v. Ryan, the Hughes Court began dismantling the New Deal:

January-Panama-strikes down (8-1) the NIRA (separation of powers)

February-Gold Clause cases, supported FDR by a narrow (5-4) majority

May 27th-”Black Monday”-3 decisions, all against FDR, culminating in Scheckter

Schechter Poultry Corp. v. United States

27 May 1935

Who’shappy?

Who’ssad?

NationalLabor

Relations(Wagner)

Act6 July 1935

“Nine old men…”1935-beginning with Panama Refining Co. v. Ryan, the Hughes Court began dismantling the New Deal:

1936-brought further setbacks:

January-U.S. v. Butler-declared the AAA unconstitutional (6-3)

May-Carter v. Carter Coal Co-after Scheckter FDR had Congress pass the Bituminous Coal Conservation Act to regulate the coal industry at least. This too was struck down

June-Morehead v. New York ex rel. Tipaldo-the final blow for Ned Deal supporters came when this decision overturned a NY State minimum wage law. Brandeis and Frankfurter had campaigned incessantly to reverse the Adkins decision which had previously killed minimum wages. Another 5-4 with Roberts deciding matters



the 1936 session was a disaster for the First New Deal, in an election year, no less

but FDR’s resounding defeat of Alf Landon embolden him to attack the conservative court

Some recent scholarship has eschewed these labels since they suggest more legislative, as opposed to judicial, differences. While it is true that many rulings of the 1930s Supreme Court were deeply divided, with four justices on each side and Justice Roberts as the typical swing vote, the ideological divide this represented was linked to a larger debate in U.S. jurisprudence regarding the role of the judiciary, the meaning of the Constitution, and the respective rights and prerogatives of the different branches of government in shaping the judicial outlook of the Court. At the same time, however, the perception of a conservative/liberal divide does reflect the ideological leanings of the justices themselves. As William Leuchtenburg has observed:Some scholars disapprove of the terms 'conservative' and 'liberal,' or 'right, center, and left,' when applied to judges because it may suggest that they are no different from legislators; but the private correspondence of members of the Court makes clear that they thought of themselves as ideological warriors. In the fall of 1929, Taft had written one of the Four Horsemen, Justice Butler, that his most fervent hope was for 'continued life of enough of the present membership ... to prevent disastrous reversals of our present attitude. With Van [Devanter] and Mac [McReynolds] and Sutherland and you and Sanford, there will be five to steady the boat ....' Six counting Taft.

Wikipedia

“Court Packing”after a landslide reelection in Nov, 1936, FDR developed a plan to remove the Court as a roadblock to the New Deal

Feb, 1937-the Judicial Procedures Reform Bill introduced into a Democratic-dominated Congress. Critics called it the court packing plan

its central provision was appointing an additional judge for each present judge over 70




Mar, 9th-FDR gives his 9th Fireside Chat and initially gains public support:

denounced the Court for “reading into the Constitution words and implications which are

not there”

stated that the nation had reached a point where it “must take action to save

the Constitution from the Court, and the Court from itself”






not there”



bipartisan critics of the bill funded a skillful campaign of letter writing to Congress: letters ran 9 to 1 against the measure

Most of the cartoons opposed






not there”



bipartisan critics of the bill funded a skillful campaign of letter writing to Congress: letters ran 9 to 1 against the measure

Mar 29, “White Monday”-the first decision in favor of a New Deal measure

“The Switch in Time That Saved Nine”“… is the name given to what was perceived as the sudden jurisprudential shift by Associate Justice Owen Roberts of the U.S. Supreme Court in West Coast Hotel Co. v. Parrish. Conventional historical accounts portrayed the Court's majority opinion as a strategic political move to protect the Court's integrity and independence from the "court-packing plan", which would have expanded the size of the bench up to 15 justices, though it has been argued that these accounts have misconstrued the historical record.The term itself is a reference to the aphorism "A stitch in time saves nine," meaning that preventive maintenance is preferable.

Wikipedia

The manuscript evidence is pretty clear that Roberts and Chief Justice Hughes were ready to revisit Adkins and Tipaldo (which had struck down minimum wage legislation) even before FDR’s landslide in 1936.In any case, the Parrish decision marked the end of the Lochner era and weakened the case for the “court packing plan.” It failed passage that summer and the Court size remains at nine to this day.

jbp

After Parrish the administrative state found little opposition as it expanded to meet the persistent problems of a depressed economy. Today most economic historians agree that it was not the New Deal measures but an even greater challenge which ended the Depression.

World War II, and the Cold War which followed, frustrated conservatives who longed to reduce the size of government. Truman defeated Dewey in 1948. Even the Republican victory in 1952 didn’t roll back the key Progressive achievements. General Johnson had observed to FDR that, once passed, Social Security could never be terminated. “No one could shoot Santa Claus.”

The same argument echoes today in the struggle over implementing the Affordable Care Act, aka Obamacare.

The next big expansion of the federal government would occur in that “decade and a half of disorders” which followed November 22, 1963.

jbp

‘60sHeyday

“ The 1960s were dominated by pragmatic liberals in the Democratic Party who set the terms of the social agenda, witnessed its breakdown under the impact of radical protests, and were ultimately routed from their stranglehold on American politics by an angry population which gave Richard Nixon and the Republican Party a chance to redefine the terms of the social debate.“Liberal consensus in an age of mass protest is an exercise in political futility that generally gives rise to radical revolution or conservative counterrevolution. In America, however, it caused what can only be described as a state of prolonged disequilibrium….”

“Fault Lines in a Land of Perfection”

Klaus Fischer, America in White, Black, and Gray.; The Stormy 1960s. 2006. p. 33

Warren-IkeBlack-FDRHarlan ii-Ike Brennan-Ike

Stewart-IkeWhite-JFK

Douglas-FDR

Fortas-LBJ

Marshall-LBJ

The Warren Courtpicture, 1967

The Image of Camelot1960-Ike’s vice president couldn’t recover from the first televised presidential debates

still, only Cook Co. & LBJ’s Texas gave the race to the MA Senator

with his beautiful wife, he projected a healthful, youthful, dynamic image

the liberal press and his inner circle managed to conceal his frightening health problems and horribly irresponsible sexual behavior

1961-a rocky foreign policy start with the Bay of Pigs and the Vienna meeting with Khrushchev

1962-the Missile Crisis was presented as a great victory because the concessions he made were kept secret

John Fitzgerald "Jack" Kennedy 1917 – November 22, 1963

“The Decade and a Half of Disorders”

August, 1963-the March on Washington occurs peacefully despite White House concerns

“The Decade and a Half of Disorders”August, 1963-the March on Washington occurs peacefully despite White House concerns

October-JFK agrees to a coup but not the assassination of unpopular South Vietnamese President Diem. On 2 November he got the coup and the assassination




November 22-the nation would be glued to the tv coverage for the next three days




November 22-the nation would be glued to the tv coverage for the next three days

LBJ, who, like Truman, had been treated like an outsider, now had the awesome responsibility thrust upon him

with his impressive Congressional experience, he was able to push through the civil rights legislation and the war on poverty which had previously been blocked by conservative Southern Democrats and Republicans

1964-LBJ trounces Goldwaterfaced with the prospect of a Second New Deal, Republicans chose an outspoken conservative with traditional values

the liberal press had no trouble painting him as a dangerous reactionary

his “extremism in defense of liberty is no vice” played right into their hands

the infamous “daisy girl” political advertisement

“These are the stakes. To make a world in which all of God’s children can live or go into the dark. We must either love each other or we must die.”- LBJ “The stakes are too high for you to stay home.”-announcer

1964-LBJ trounces Goldwater

faced with the prospect of a Second New Deal, Republicans chose an outspoken conservative with traditional values

the liberal press had no trouble painting him as a dangerous reactionary

his “extremism in defense of liberty is no vice” played right into their hands

the infamous “daisy girl” political advertisement

the most spectacular victory since FDR defeated Alf Landon. 61.6 % of the popular vote as opposed to Goldwater’s 38.5%. He carried only his home state of Arizona and five southern states

“Ironically, sixteen years later Ronald Reagan would sweep to an equally impressive victory on a conservative platform loosely similar to the one that had crushed Goldwater in 1964.” Fischer, p. 144

“The future of liberal reform now seemed all but assured. The three branches of government were solidly in Democratic hands, and so was the Supreme Court under the leadership of Earl Warren. In order to bolster his liberal support in the Supreme Court, Johnson appointed his friend and partner Abe Fortas to the Court, thus assuring himself of a “mole” who could keep him abreast of current thinking [there]. The Court was in his pocket and two-thirds of both houses of Congress were also on his side. The times were ripe for liberal reform.”

Ibid.

A Perfect Stormthe civil rights revolution had begun slowly a decade earlier

from above: 1954-Brown v. Board of Education of Topeka, KS

from below: 1955-Rosa Parks, MLK & the SCLC Montgomery bus boycott

early ‘60s-but now, as the Freedom Riders, the sit-ins, and the voter registration campaigns began; shocking southern backlash had swung mostly apathetic northerners into sympathy with the cause

likewise, JFK’s “brightest and best” had proposed a “War on Poverty” which seemed headed nowhere until the tide of public sympathy and LBJ’s legislative expertise expanded it into the Great Society

there seemed to be no limits to what this Second New Deal might accomplish until:

1965-the first of the “long hot summers.” The Watts riot in L.A. which inspired Chief Gates to create the first SWAT teams

“Hell, we’re the richest country in the world, the most powerful. We can do it all…”--LBJ

“[his] statement...gives us an answer to the question of why the social reformers actually believed they could eliminate poverty in their lifetimes. To them America could do anything it set its mind to: eliminating poverty, defeating communism, landing a man on the moon, providing a guaranteed annual income to everyone, housing for the homeless, pensions for the retired, a pollution-free environment, international peace, and much, much more.”

Op. cit., p. 149

“Hell, we’re the richest country in the world, the most powerful. We can do it all…”--LBJ

The Great Society “Alphabet Soup”OEO-under Sargent Schriver-Aug., 1964 Economic Opportunity Act provided a billion dollars to retrain the poor.

Title I- the JC, Job Corps, modeled in FDR’s CCC

Title II- CAP, the Community Action Program, soon packed with radicals and Hustlers, CDBGs, Section 110 grants &c.

VISTA-the “domestic Peace Corps”

Head Start

Model Cities

“OEO was infiltrated by radicals who saw [it] as a means of implementing Saul Alinsky’s strategy of “rubbing raw the sores of discontent”-Fischer, p. 150

ring any bells? like South Side of Chicago? His time there was a generation later, 1985-88

The Great Society “Alphabet Soup”1965-Medicare, the crown jewel- AMA opposition was overcome with a series of concessions which began the rise of medical costs

American seniors went from being the poorest demographic to the richest

unscrupulous practitioners found it easy to bilk the bureaucracy

Medicaid was added for the poor, regardless of age

AFDC brought food stamps, a program which has ballooned in the past five years, was added to bring the food industry on board. 1965-4.3% of American families; 1970-8.5%; 2008-8.6%; 2012-13.6%

“Such massive involvement of government in the lives of American people required an equally massive expansion of government departments, bureaucrats and regulatory agencies.”-Fischer, p. 153

[LBJ’s] war on poverty is still the subject of intense scholarly debate…:Why was it fought and by whom? What is poverty and how could it be measured? And did the programs...actually lift the poor out of poverty and raise their standard of living? As to the first question, Daniel Patrick Moynihan provided the best answer when he confessed that “the war on poverty was not declared at the behest of the poor: it was declared in their interest by persons confident in their own judgment in such matters.” [He] should know … [his] study attributed some of the pathologies to bad choices poor black people made in America’s inner cities. Even the slightest hint that poverty might be related to the actions of the poor themselves was denounced by liberals as insensitive, uncaring, and racist, which were exactly the charges leveled at Moynihan’s report….[He] was one of the first to break ranks with orthodox liberals on this subject.

Op. Cit., p. 154

Success or Failure?

Viet Nam-”Johnson the hawk poisoned Johnson the liberal”

Unger and Unger, Best of Intentions, p. 202 quoted in Fischer, p. 159

How has it come to this? After all, those of us of a certain age grew up thinking government was filled with smart people who did great things.

Government won World War II, built the interstate highway system, desegregated schools, put a man on the moon, cleaned up the air, built the biggest computers and conjured up the Internet. The brightest Ivy League graduates went to work for the CIA rather than big law firms, and the kind of young propeller heads who now head for Silicon Valley instead beat a path to NASA.

About four decades ago, all this began to change. The crumbling began with Vietnam and Watergate, of course, which together convinced many Americans that the government that did all those wonderful things had become power-hungry and untrustworthy.

Gerald F. Seib, “The Peopleʼs Choice: Distrust,” in the Wall Street Journal, 21 July 2013

1968Jan 30th -Tet Offensive- Walter Cronkite and George Mc Govern

1968Jan 30th -Tet Offensive- Walter Cronkite and George Mc Govern

Mar 31st -"I shall not seek, and I will not accept, the nomination of my party for another term as your President."

1968

Jan 30th -Tet Offensive- Walter Cronkite and George Mc Govern

Mar 31st -"I shall not seek, and I will not accept, the nomination of my party for another term as your President."Apr 4th-MLK assassinated

June 6th-Bobby Kennedy assassinated

Aug 26-29th-Democratic National Convention in Chicago

1968

Jan 30th -Tet Offensive- Walter Cronkite and George Mc Govern

Mar 31st -"I shall not seek, and I will not accept, the nomination of my party for another term as your President."Apr 4th-MLK assassinated

June 6th-Bobby Kennedy assassinated

Aug 26-29th-Democratic National Convention in Chicago

Nov 5th-Nixon 43.4%, Humphrey 42.7%, Wallace 13.5%

The late 60s-institutionalized radical protest

beginning with Malcolm X and the Black Muslims, and other nationalists began to take over the civil rights movement, alienating its Jewish and Christian supporters. Enter Black Power, the Panthers and some really criminal elements, e.g., Eldridge Cleaver

La Raza

campus sit-ins and “non-negotiable demands”

AIM

Women’s Lib

Stonewall and Gay Pride

Oct, 1969-SDS moves to “Days of Rage”

Mar, 1970-Weather Underground bomb makers in Greenwich Village

The ‘seventies were a decade best forgotten, along with polyester and disco. Nixon was too distracted by Vietnam and the afterglow of the ‘sixties unrest to make any dent in the Administrative State, if, indeed, he had had any desire to do so. He was undone by his inner devils.

jbp

The ‘seventies were a decade best forgotten, along with polyester and disco. Nixon was too distracted by Vietnam and the afterglow of the ‘sixties unrest to make any dent in the Administrative State, if, indeed, he had had any desire to do so. He was undone by his inner devils. Likewise, Ford was a product of the Establishment and had no plans to roll back the Administrative State which had been his adult life working environment.

Carter ran as a moderate Democrat and he was bedeviled with economic challenges and Cold War threats. The Teheran embassy seizure finished any hope he had of being judged as an effective president.

jbp

Perhaps the most pervasive and all-inclusive trend is projected by the modern welfare state that has come to overshadow entirely the eighteenth century American constitution based on the idea of limited government that drew a clear line between the public and the private realms.

Moses Rischin, “American Jewry in the 20th Century,” Freedom of Religion in America. 1981, p. 78

ConservativeReaction

He started life as an FDR Democrat, a lifeguard, a cheerleader, a movie actor and president of the SAG (movie actors’ union) during the troubled “blacklist” years.

His conversion began in the ‘60s. He gave a rousing speech endorsing Goldwater in 1964. He entered politics as two-term governor of California.. In 1980 his time in the White House came with his second try. He wouldn’t go along with the Great Society but attempted to roll it back. He wouldn’t accept the “evil” Soviet Empire. Again, not containment, but roll back.

Like Goldwater, he was outspoken about his conservative convictions. But, unlike Goldwater, the Great Communicator was able to carry a majority of Americans along with him.

jbp

A Different Kind of Republican President

The Reagan Revolution

Reaganomics-tax cuts ultimately produced revenue increases as the economy recovered from the recession:

Carter’s last year-inflation 12.5%; unemployment 7.5%

Reagan’s last year-inflation 4.4%; unemployment 5.4%

August, 1981-he broke the illegal PATCO strike of FAA workers

Tax Reform Act of 1984-supply side economics

raised the Cold War stakes:

1983-July, SDI (“Star Wars”); Oct., Grenada invasion; Nov.,Pershing 2s to Western Europe

Reagan Doctrine-covert and overt aid to indigenous anti-Communist forces; Afghanistan, Angola, Nicaragua

Supreme Court Politics- “Borking”1981 appointments-Reagan honored a campaign pledge in his first year by nominating a woman, Sandra O’Connor to the Court

Supreme Court Politics- “Borking”

1981 appointments-Reagan honored a campaign pledge in his first year by nominating a woman, Sandra O’Connor to the Court

that same year he nominated Robert Bork to the DC Appeals Court

Supreme Court Politics- “Borking”1981 appointments-Reagan honored a campaign pledge in his first year by nominating a woman, Sandra O’Connor• to the Court


1984-in Dronenburg v. Zech Bork, joined by Scalia, ruled against the discharged homosexual sailor’s claim that his right to privacy had been violated

this “penumbra” of the AM IX (Douglas, in Griswold v. CT, 1965) had become the famous battleground between the “Living Constitution” faction and the “Originalist” jurists. Roe v. Wade, 1973, just turned up the heat





Bork specifically attacked Lawrence Tribe, the leading “Living” law professor


that same year he nominated Robert Bork• to the DC Appeals Court



Bork specifically attacked Lawrence Tribe•, the leading “Living” law professor

July, 1987-despite warnings from liberal Senate Democrats, Reagan nominated Bork to the Supreme Court

“Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy ... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.”--Ted Kennedy, 45 minutes after the nomination, in a nationally televised speech

Supreme Court Politics- “Borking”July, 1987-despite warnings from liberal Senate Democrats, Reagan nominated Bork to the Supreme Court

A brief was prepared for Joe Biden, head of the Senate Judiciary Committee, called the Biden Report. Bork later said in his best-selling book The Tempting of America that the report "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility".--Wiki

Oct-Biden’s committee reported out the nomination 9-5 Against

instead of dropping out, Bork insisted on a full Senate vote. He was defeated 58-45, with 2 Dem.s voting “For” and 6 Rep.s voting “Against”

Supreme Court Politics- “Borking”

July, 1987-despite warnings from liberal Senate Democrats, Reagan nominated Bork to the Supreme Court

A brief was prepared for Joe Biden, head of the Senate Judiciary Committee, called the Biden Report. Bork later said in his best-selling book The Tempting of America that the report "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility".--Wiki

Oct-Biden’s committee reported out the nomination 9-5 Against

instead of dropping out, Bork insisted on a full Senate vote. He was defeated 58-45, with 2 Dem.s voting “For” and 6 Rep.s voting “Against”

1991-during the equally steamy Thomas hearings, at a NOW conference in NYC, feminist Floryence [sic] Kennedy attacked the conservative African-American nominee: “We're going to bork him. We're going to kill him politically...This little creep, where did he come from?"

24 years after Bork's nomination was rejected, in 2011, New York Times columnist Joe Nocera claimed that "[t]he Bork fight, in some ways, was the beginning of the end of civil discourse in politics... The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to todayʼs ugly politics is a straight one." Nocera cited Democratic activist Ann Lewis who acknowledged that if Bork's nomination "were carried out as an internal Senate debate we would have deep and thoughtful discussions about the Constitution, and then we would lose."

Wiki

Constitution Must Be the Standard. If a reasonable attachment to the written text of the Constitution...is not retained or restored as the standard for interpretation of the basic law of the United States, we will be left with the most unpromising alternative.

That alternative mode would be the domination of American public policy and much of American private life, by the impulses, prejudices, and ideological dogmata of the nine justices of the Supreme Court. Those justices have received no systematic preparation for serving as a kind of oligarchy or council of ephors, they would make many blunders, some disastrous. They have made a good many grave blunders already [since 1937]. Their power to do mischief would become almost infinite; their ability to rule prudently would be improbable. In any event, such a scheme would abolish the American democracy and enfeeble both Congress and the presidency--if the justices were permitted to perpetuate their assumption of haughty authority, power that courts of law were never intended to exercise.

Russell Kirk, “The ‘Original Intent’ Controversy,” The Heritage Lectures # 138. 1987, p. 10

In 1988 Vice President George H.W. Bush promised to continue the Reagan Revolution. He won by an impressive 53% - 45% popular margin.


Despite the end of the Cold War and a successful Gulf War I, his read my lips” pledge and a third party candidate allowed a young Democrat who ran as a moderate to win in 1992 with only 43% of the vote. Bush 37.5%, Perot 18.9%


Despite the end of the Cold War and a successful Gulf War I, his read my lips” pledge and a third party candidate allowed a young Democrat who ran as a moderate to win in 1992 with only 43% of the vote. Bush 37.5%, Perot 18.9%

Early mis-steps led to the Gingrich Revolution and the first Republican Congress since the ‘50s. The Peace Dividend and “the end of welfare as we know it” produced the first budget surpluses in forty years.

When the “Dot.com Bubble” burst at the end of the decade, the new Republican administration faced recession as well as the War on Terror. Once again deficits and debt soared.

’74’79

’81

’84’89

‘92

2001

’09

Entitlements- The Elephant in the Room

2007beforeObamaCare !

For a moment after the 9/11 terror attacks, it appeared that confidence was revived. But it soon dissipated, with two wars that seemed to many Americans either unnecessary or unending, coupled with a searing civil-liberties debate that suggested Republicans wanted big government as much as Democrats did, just for different purposes. The arrival of President Obama offered a second shining moment, but so far he has proved unequal to the daunting task of either making Washington work better or turning around political attitudes.

Gerald F. Seib, “The Peopleʼs Choice: Distrust,” in the Wall Street Journal, 21 July 2013

When “Borking” fails, take a page from the John Birch Society

The first term produced much heat and little light on both the Left and the Right. The new Administration followed White House Chief of Staff Emanuel’s maxim: never let a serious crisis go to waste. On top of the Bush TARP program (3 Oct 2008) the incoming Democrats passed a huge “Stimulus” package. Rush Limbaugh called it the Porkulus. It advanced many economic projects which the Left favored and payed off the Democrat “fat cats” who had made the 2008 victory possible. Solyndra, anyone?

jbp

The first term produced much heat and little light on both the Left and the Right. The new Administration followed White House Chief of Staff Emanuel’s maxim: never let a serious crisis go to waste. On top of the Bush TARP program (3 Oct 2008) the incoming Democrats passed a huge “Stimulus” package. Rush Limbaugh called it the Porkulus. It advanced many economic projects which the Left favored and payed off the Democrat “fat cats” who had made the 2008 victory possible. Solyndra, anyone?

In a special election in 2010 Scott Brown (R) captured the “Kennedy (D) seat.” That November the usual mid-term election boost for the party out of power allowed them to recapture the House. Hopes rose on the Right that the new “messiah” would be a one-term president. Republican Governor Scott Walker survived a bitter recall election in June, 2012. Later that month a slender conservative majority on the Supreme Court, surprised both sides when Chief Justice Roberts “switched” to support “Obamacare,” (National Federation of Independent Business v. Sebelius).

jbp

The first term produced much heat and little light on both the Left and the Right. The new Administration followed White House Chief of Staff Emanuel’s maxim: never let a serious crisis go to waste. On top of the Bush TARP program (3 Oct 2008) the incoming Democrats passed a huge “Stimulus” package. Rush Limbaugh called it the Porkulus. It advanced many economic projects which the Left favored and payed off the Democrat “fat cats” who had made the 2008 victory possible. Solyndra, anyone?•

In a special election in 2010 Scott Brown (R) captured the “Kennedy (D) seat.” That November the usual mid-term election boost for the party out of power allowed them to recapture the House. Hopes rose on the Right that the new “messiah” would be a one-term president. Republican Governor Scott Walker survived a bitter recall election in June, 2012. Later that month a slender conservative majority on the Supreme Court, surprised both sides when Chief Justice Roberts “switched” to support “Obamacare,” (National Federation of Independent Business v. Sebelius).

But Romney, “The Great Right Hope,” was not to be.jbp

So where does this leave us?

The president of Hope and Change has hit the same second term “brick wall” which had stymied his much maligned predecessor, and Clinton and Reagan before him. Bush 41 didn’t even get a second term, nor did Carter. He has faced the same charge which so many presidents after Washington have faced.

So where does this leave us?

The president of Hope and Change has hit the same second term “brick wall” which had stymied his much maligned predecessor, and Clinton and Reagan before him. Bush 41 didn’t even get a second term, nor did Carter. He has faced the same charge which so many presidents after Washington have faced. When the “Outs” are frustrated with their status they charge the man in the White House with violating the Constitution.

But can we bridge the Red-Blue divide and restore that “More Perfect Union?”

“In retrospect, the 1960s illustrate that the pursuit of “perfect“ justice without a sense of historical reality is a self-defeating enterprise. At the same time, this author [Klaus Fischer], growing to maturity during the 1960s, has taken away a strong belief from his 1960’s experiences that human beings have a spiritual duty to ameliorate injustice in the same way that they have a duty to enhance the truth by reducing ignorance. Except for civil rights, most of the 1960s protests were unrealistic, at best exchanging the iron cage with a gilded cage. If it is genuine existential protests Americans are seeking, it would require a humanization of the industrial system, a radical change in which politicians are selected rather than packaged and sold, and a reawakening of religious sensibility. If such changes have any chance

“….If such changes have any chance of succeeding, future reformers will have to go beyond youthful idealism, build strong bridges to ordinary Americans, and choose wiser and more ethically grounded leaders. Perhaps then the better parts of the 1960s could be used as a foundation for a better American polity and a more meaningful way of life.”

Klaus Fischer, America in White, Black and Gray; A History of the Stormy 1960s. (2006), p. 387.

We have been here [ in L.A.] for a long time now, and we are still the oldest Catholic Worker west of the Mississippi. One would think that we would have lots of wisdom about how to run a successful Catholic Worker. Actually, there is no such thing as a successful Catholic Worker: The life of the Catholic Worker is a life of struggle and disappointment that strips away your illusions but never achieves your expectations, much less your hopes. It is a never-ending learning process fraught with pitfalls and foibles. Anyone can serve soup, and many people put their bodies in places of social distress, but to live in community or to try to hold a community together over the years is seemingly impossible. It is a journey that begs for a providential combination of grace, guts and luck.

Jeff Dietrich, in NCR online, 2013

Perhaps it is really simple--a question of justice and power.

“This justice--what is it?”--Socrates

And what could make power just?

Yes, it is that simple. Simple--but not easy. And, as Jefferson wrote in 1825 in a letter to Richard Henry Lee, these ideas in the Declaration “[were] intended to be an expression of the American mind”--the mind of those exceptional men who drafted the Constitution.

When we discard consent from the equation, we do so at our peril. We produce rule of men, not rule of law.

jbp

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,…”-- Jefferson

we the people, session viii, "living constitution" vs. original intent

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