Massachusetts, once so known for outpacing its neighbors in government theft that it was labeled Taxachusetts, can brag about its comparative improvement – at least to other New England states. But its proclivity for holidays – Bunker Hill Day, Patriots Day, Evacuation Day, Juneteenth – still outpaces Rhode Island, which holds stubbornly to only VJ (Victory over Japan) Day – despite ‘enlightened’ efforts to eliminate this state holiday or, worse, recast it as Bay Day.
But has this penchant for relieving public employees’ onerous duty to be hard at work leaning on their shovels spread to the national government? Thankfully not, Constitution Day turns out to be extra work – at least for the vast majority of the nation’s universities that suckle at the federal teet. Despite the fact that the nation’s campuses prefer to tell the rest of the country what to do, rather than vice versa, Brown has founded a maturing observation of this vital holiday.
The cynical, if not intellectually incoherent, tendency to celebrate Constitution Day with a grueling examination of its own constitutionality was nowhere in evidence on September 17th, when Professors Richard Epstein and Samuel Issacharoff gave competing answers to the question: Was the New Deal a Good Deal? Poignantly, objections to expansive interpretations of the commerce clause and the spending power associated with the New Deal might be the strongest objections to this federally-commanded observation on campuses.
The fruition of the New Deal, and any abiding sense that it was the herald of 20th century progress, is inextricably bound up with its constitutional ignorance. And neither Epstein nor Issacharoff saw this as any kind of good deal.
A belief in expansive federal power guided by scientific expertise, albeit lacking an hostility to similarly-guided state exertions, characterized the philosophy of the New Dealers. But suspicions that such undertakings violated the American political compact, centered in the courts, proved the chief restraint on such progressive practice. Rather than accept the limits placed on this social experiment by the separation of powers, a tectonic shift in legal precedent was effected to enable it. The key difference between Epstein and Issacharoff lay in whether the courts have largely repudiated this jurisprudential gerrymandering or not.
Here their differing benchmarks showed clearly. Issacharoff is largely complacent following the reassertion of civil protections for minority factions by the judiciary against government overreach, while Epstein focused on the judicial failure to heal the dichotomous assault on economic liberties.
But sorting these differences proved an exercise in subtlety for the MacMillan audience. A concordance in this colloquy on the importance of repudiating the New Deal to advancing the rights of racial minorities actually highlighted the differences between the disputants.
Issacharoff and Epstein both view Brown v. Board of Education as a seminal setback for the political coalition that forged the New Deal. But Epstein views Kelo v. New London as evidence of the unreconstructed nature of the present judiciary while Issacharoff tended to see it as the kind of exception that proves that New Deal jurisprudence is passé.
Epstein leaned towards more esoteric argumentation which may have concealed from the audience the winning blow he delivered when citing the progressive era decision that has lead to the most ubiquitous yet uncriticized government expansion of the 20th century – Euclid v. Amber. The racial overtones of this decision were only on display in the lower court, where Justice Westerhaven of the Southern District of Ohio had invalidated a local zoning ordinance on the following basis:
Buchanan v. Warley in which an ordinance of the city of Louisville, held by the state Supreme Court to be valid and within the legislative power delegated to the city, districting and restricting residential blocks so that the white and colored races should be segregated, was held [by the U.S. Supreme Court] to be a violation of the Fourteenth Amendment and void. It seems to me that no candid mind can deny that more and stronger reasons exist, having a real and substantial relation to the public peace, supporting such an ordinance than can be urged under any aspect of the police power to support the present ordinance as applied to plaintiff’s property. And no gift of second sight is required to foresee that if this Kentucky statute had been sustained, its provisions would have spread from city to city throughout the length and breadth of the land. And it is equally apparent that the next step in the exercise of this police power would be to apply similar restrictions for the purpose of segregating in like manner various groups of newly arrived immigrants. The blighting of property values and the congesting of population, whenever the colored or certain foreign races invade a residential section, are so well known as to be within the judicial cognizance. (Amber v. Euclid, 297 F. 307 (N.D. Ohio, 1924), 312)
Ironically, Westerhaven did not reckon with the “candid” mind of Supreme Court Justice Sutherland, perceived as one of the anchors of the old constitutionalism who nonetheless adopted the progressive mantra of public health in overruling the district court:
With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities-until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. (Euclid v. Amber, 272 US 365 (1926), 394)
Today’s debate often lacks the candor to compare these competing visions of land use regulation. The classic subjugation of economic right to the will of the majority, under the rubric of the exercise of scientific expertise to advance the health and welfare of the community, is seen quite clearly to be but a beard for American apartheid. Thus has land use regulation fueled class warfare, set back the achievement of equal opportunity, and perpetuated the triumph of the administrative state.
It is a salutary development that America blinked following the court’s decision in Kelo, but it is a fraud to suggest that the New Deal has been repudiated when Euclid doesn’t command universal recognition as the Plessy v. Ferguson of land-use jurisprudence. Such an understanding should have led the court in the opposite direction by this late date.
Epstein is right that the economic liberties and civil rights are one and the same. The latter cannot be fully restored without the former, albeit Issacharoff’s argument that the court and the country have pulled back from the New Deal are persuasive insofar as they go.
But without repudiating Fillburn, the zenith of federal interest in the lowest common denominators of human existence and Carolene, the endorsement of the arbitrary exercise of this power by the 4th branch (i.e., regulatory agencies) under the guise of procedural due process, it is hard to view the New Deal as something to be seen only in the rearview mirror. Indeed, with the recent joining of the right and left in Raich, the intrastate medical marijuana case, the sense of expansive federal power seems here to stay for the long term.
These cases all came up during the discussion, but the one missing was American Trucking – no thanks to my failing to note its absence into the “hardball” question of the Janus Forum. This case could have addressed the tension between the constitutionally-inspired inclination to rein in runaway government and the constitutionally-suspect competency of the judiciary to sit as a super-legislature swinging the blunt implement of substantive due process. If decided differently, it could have weakened the 4th branch by forcing the Congress instead of executive agencies to make the laws of the land.
A note of some interest with regard to these cases (Raich and American Trucking) that have failed to make the Rehnquist revolution more than a ripple in the New Deal pond is that the only voice of dissent, or truly eclectic concurrence (in the case of American Trucking), has been Justice Thomas – you know, the dumb, oversexed race traitor who never asks any questions.
My disappointment if intellectual kinship with this juxtaposition, that the justice who I think has the right answer is the outlier amongst elites, was at least counterpoised by the questioning of conventional wisdom by capable intellectuals on display in this Janus Forum event. The privilege of hearing this erudite colloquy absent the snide presumption of the speakers that their view is the accepted one, a pathology that has too often attended academic perspectives on American Constitutionalism, distinguishes this effort. One can only hope that next year’s Constitution Day lecture might address the equally counter-intuitive constitutional question: “Was the Great Society Great?”
Brian Bishop is on the Board of Advisors of the Foundation for Intellectual Diversity and directs the Foundings Project for the Ocean State Policy Research Institute.
