U.S. Constitution vs "Living" vs "Original Intent

The U.S. Constitution
session viii
“Living Constitution”
vs
“Original Intent”
Hillsdale College, “Constitution 201”, September 17, 2012

The U.S. Constitution
session 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

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 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 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

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

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 Progressivism
banking 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

1870s-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

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

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)

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)
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

Judicial Beginnings
born 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 Brandeis
1856 – 941
picture in 1916

“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 Frankfurter
1894 (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 Frankfurter
1882 – 1965
picture 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”

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 Braintrust
1932- 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)

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

FDR’s Braintrust
Rexford Tugwell-father of the AAA

FDR’s Braintrust
the “First New Deal” (1933-34)additions:
Gen. Hugh Johnson-headed NRA

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

FDR’s Braintrust
CCC & SSA
Harold Ickes-Interior, PWA Director

FDR’s Braintrust
CCC & SSA
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

“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

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

the liberal “Three Musketeers” equally sure to vote in favor of them
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’s
happy?
Who’s
sad?

National
Labor
Relations
(Wagner)
Act
6 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 swing votes, Chief Justice Hughes and Justice Roberts, held the
balance of power
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

“Court Packing”
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”

“Court Packing”
not there”
bipartisan critics of the bill funded a skillful campaign of letter writing to
Congress: letters ran 9 to 1 against the measure

“Court Packing”
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

“ 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-Ike
White-JFK
Douglas-FDR
Fortas-LBJ
Marshall-LBJ
The Warren Court
picture, 1967

The Image of Camelot
1960-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

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

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

concerns
assassination
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 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

“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 Storm
the 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

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

1968
Mar 31st -"I shall not seek, and I will not accept, the nomination of my party
for another term as your President."

1968
Apr 4th-MLK assassinated
June 6th-Bobby Kennedy assassinated
Aug 26-29th-Democratic National Convention in Chicago

1968
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

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

nominating a woman, Sandra O’Connor to the Court
that same year he nominated Robert Bork to the DC Appeals Court

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

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

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

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”

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
2007
before
Obama
Care !

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

“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

“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

U.S. Constitution vs "Living" vs "Original Intent

Recomendados

Recomendados

Mais conteúdo relacionado

Mais procurados

Mais procurados (20)

Semelhante a U.S. Constitution vs "Living" vs "Original Intent

Semelhante a U.S. Constitution vs "Living" vs "Original Intent (18)

Mais de Jim Powers

Mais de Jim Powers (20)

Último

Último (20)

U.S. Constitution vs "Living" vs "Original Intent