Extended Phenotype

Following the thread from two previous posts, it’s worth looking at the possibility that Democrats still have such a vision, and what vision conservatives offer in return.  In his original post on Balkinization, Mark Tushnet stated — without much elaboration — that the Democratic constitutional vision was "something like equal dignity and respect."  There’s a sense in which this is correct.  It’s not hard to trace this vision back to FDR; the following is from the "Four Freedoms" speech of 1941:

Just as our national policy in internal affairs has been based upon a decent respect for the rights and the dignity of all of our fellow men within our gates, so our national policy in foreign affairs has been based on a decent respect for the rights and the dignity of all nations, large and small.

Originally, of course, Roosevelt was concerned to secure equal dignity through redress of economic privation, in the wake of the Depression.  Civil rights and racial equality were still issues for the future.  National opinion would begin to place racial and gender issues on the "equal dignity and respect" agenda starting in the 1950’s and continuing throughout the 1960’s, while retaining (in the Great Society programs of Johnson) the economic dignity legacy of the New Deal.  As Cass Sunstein documents in his new book, Roosevelt’s "Second Bill of Rights" came close to defacto recognition by the Court prior to the Nixon appointments in the early 1970’s. 

Since then, Democrats seem not to have lost the earlier vision but have instead have been playing defense.  Since 1970, Democrats have controlled the White House for only 12 out of 34 years.   Only two of the sitting Court were nominated by Democrats (although several Justices nominated by Republicans now form part of the Court’s "liberal/moderate" minority).  And majority control over Congress has rested with Republicans for the majority of the period since 1980.  The liberal "vision" has lost ground ever since; both real ground in the form of legislative cutback and judicial erosion, and steady decline in public opinion.  I need not belabor the point — excellent sources exist for analysis of the tactics by which Democrats and liberals came to be the minority force in national politics.

Far more interesting, I believe, is the opposing constitutional vision (or visions) which find so much support among conservatives:  limited or "small government" as the "original" and desired state of government.   If Democrats want to understand how to stop defending, and start building again, the weaknesses in the conservative constitutional argument are the place to start.

In the "small government" narrative, the Constitution established guarantees against tyrannical or corrupt government, but few positive obligations toward private citizens.  Classical natural rights are exercised by autonomous individuals, with the Constitution (and in particular the Bill of Rights) providing a guarantee that government will not infringe on the natural rights of citizens.  Citizens yield a limited array of powers to government in return for a suite of generalized protections.   

And in this state of small-government bliss we lived, or so the narrative runs, until the New Deal and (later) the Warren Court began to add "positive rights" or "entitlements" to the negative rights we enjoy by founding intent.  The end result, we are told, is a welfare state which takes property from its rightful owners in order to provide "handouts."  In addition to violating our freedom to enjoy private property unmolested by the state, small-government advocates often decry the "paternalism" involved in positive rights redistribution.  Thus, an array of tactics to "shrink" government have made their appearance since 1980:  welfare reform, deep tax cuts, and rollbacks in regulatory regimes.   

The most insidious thing about the "small government" narrative is that it has the ring of historical truth.  The federal  government, as originally constituted, was a slightly more centralized version of the Continental government established in 1776.   A sovereign federation of sovereign states, rather than a confederal alliance of independent sovereign states.  The new federal government was given few powers to directly govern the relationships between individuals, let alone establishing direct economic "entitlements" of individuals upon it.  The Jeffersonian tradition continued the legacy of limited federal  power over sovereign states, after a brief moment of centralization under the Federalists.  As the American economy expanded after the Civil War, this "hands off" tradition continued in the form of economic "laissez-faire."  Conveniently forgotten is the traditional role of states in providing a varied tapestry of state actions on the behalf of individuals.  Thus, as the country entered the 20th century, opponents of the Progressive movement opposed legislation which seemed to infringe on private property rights or produce redistributive effects.  Lochner v. New York stands as the icon, both of an era and a style of argument:  that rights to property and contract are inherent in the natural rights of individuals, and the Constitution provides only negative protection against interference, not positive rights to "protect" individuals from perceived unfairnesses.  The modern regulatory and "welfare state" created by the New Deal is seen as a departure from the principles established during the first 150 years of our history.

Call it by various names, but the "small" or "limited" government ideology wraps together a number of premises, which are self-reinforcing and appeal to a broad coalition:

1. Natural rights, to private property, contract, and "ordered liberty," are inherent in autonomous individuals, and do not rely upon government action for their exercise.  Instead, each relies on government forbearance.  (proper rights are negative)
2. In the absence of government action, economic relations are "neutral" and natural.  Government action usually destroys this neutrality, and thus requires a strong justification of necessity and propriety. (status quo neutrality)
3. Positive entitlements  involve greater taxation of private property than is necessary for the strict operations of neutral government, and thus are unconstitutional without due process compensation. (positive rights as takings)

Libertarians who truly oppose government and see private action as the best means of accomplishing any goal subscribe to these premises.  Pro-business conservatives like the anti-regulation and anti-tax implications of the small-government program (except to the extent that a given industry is dependent upon subsidies, tariffs, or direct government largesse).  And honestly, many who simply haven’t given the matter a great deal of thought find the sound of "getting government off our backs" attractive, and very much in keeping with our long-standing myths concerning the Founding. 

As progressives, this is what we’re up against.  A narrative about limiting the interference of government in our lives that is wholly consistent with a superficial look at our history from Founding until today.  A narrative that dichotomizes the actions of government into "negative" rights, which are the proper role of government, and "positive" entitlements, which are a modern (and unconstitutional) innovation.   A narrative which says that the country took a wrong turn sometime between 1932 and 1937, and that the mission of modern conservatives is to find our way back to the pre-ordained path. 

The problem is, the premises behind the small government narrative simply aren’t true.  As Holmes and Sunstein demonstrate in The Cost of Rights, the dichotomy between "negative" and "positive" rights is built on several logical fallacies; rights in any sense of the term require not only positive governmental action but adequate public funding.  As Democrats, it would seem like the natural course of action is to see whether we can construct a new narrative, one in which we recognize the fallacy of purely "negative" rights; a narrative in which we recognize the essential role that government and law has always played in constructing not just our rights, but markets and economic relationships.  A narrative in which social justice is not just allowable, but in many cases required, in order to secure the fruits of citizenship for all Americans.   I continue to explore the possibilities in future posts.