“This is among the most profound shifts in our legal history,” warns a Reagan-appointed federal judge. His words bear slow reading: “Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach.” A subsequent headline noted that it amounts to a “Privatization of the Justice System.”73
In their bid for constitutional revolution by combined increments, the operatives of the apparatus tell themselves and those in their listening audience that they are restoring the founders’ vision. Some even call themselves “Madisonians.”74
That, too, is misinformation. Rather, the cadre is promoting a view of the Constitution that comes from a unique era of U.S. history: the period after the defeat of Reconstruction and leading up to the Great Depression. Buchanan acknowledged as much in the book that built his career, when he and coauthor Gordon Tullock said that the nation’s decision-making rules were closer to “the ‘ideal’ in 1900 than in 1960.”75 The year 1900 was the age of both Lochner v. New York and Plessy v. Ferguson—decisions remembered today because they blocked majority desire for meaningful employment reform, in the one case, and allowed state-legislated racial oppression, in the other. Both decisions twisted the Fourteenth Amendment to serve the already privileged rather than the embattled citizens whose rights the amendment was designed to protect.
In short, Buchanan’s desired constitutional order enabled an era of unmatched corporate dominance, in which elites North and South reunited in a shared disdain for the political participation of the great mass of the citizenry. His view of the Constitution allowed mass disenfranchisement in the South, suppression of working-class voting in the North and the West, treatment of workers that was odious enough to set off veritable rolling civil wars between capital and labor, ruin of the environment in community after community, and more. The heyday of what millions of contemporaries dubbed a “plutocracy,” it was a time that saw, in the words of the legal scholar Barry Friedman, “a colossal loss of faith in the efficacy of law” as citizens concluded that judges always and unfailingly took the bosses’ side. Not coincidentally, it was also a time that, the journalist Ida M. Tarbell wrote, “dripped with blood.”76
Had Buchanan’s ideal system of 1900 endured at the national level in the Great Depression, the United States might well have experienced a revolution from the right or the left, instead of pulling off the achievement of being the sole liberal democracy to survive the global catastrophe. That feat was made possible by an emergent understanding of the Constitution that put some constraints on property rights in the name of freedom for all and collective self-government in the age of the large corporation.77
• • •
There is another, biting irony to note: the goal of this cause is not, in the end, to shrink big government, as its rhetoric implies. Quite the contrary: the interpretation of the Constitution the cadre seeks to impose would give federal courts vast new powers to strike down measures desired by voters and passed by their duly elected representatives at all levels—and would require greatly expanded police powers to control the resultant popular anger. An omen: after years of criticizing “judicial activism” by the Supreme Court for greater equity, Koch grantees are now making, as one Cato publication puts it, the Case for an Activist Judiciary to secure economic liberty.78
To advance their constitutional revolution, the donor network has pumped hitherto unheard-of sums into state judicial races. While media attention has focused on the impact of Citizens United on the presidential and congressional races, the opening of the spigots in state judicial races may prove more consequential over the decades ahead as corporate donors invest in those they believe will interpret the Constitution and the laws in their favor. The Republican majorities that are rushing through “radical reform” know that citizens of their states are likely to turn to the only branch of government left that might blunt the blows. That is why the large donors have invested so heavily in judicial races: to elect judges who will allow the revolution to go forward. One North Carolina insider summarized the danger bluntly: “Lose the courts, lose the war.”79
At this writing, though, the flagship success of the constitutional wing of the cause was Chief Justice John Roberts’s decision in the Affordable Care Act case, National Federation of Independent Business v. Sebelius. While some on the right excoriated Roberts for having upheld the ACA, smart court watchers noted not the verdict but what Roberts said about the Commerce Clause.
Some context: In 1937, when the Supreme Court upheld a minimum wage law for the first time and then the Wagner Act, too, signaling its acceptance of the New Deal, it did so by agreeing with government attorneys that the Commerce Clause of Article I of the Constitution gives Congress the ability to regulate interstate trade. Under the rubric of regulating interstate trade, the federal government then dramatically increased its oversight of what used to be considered strictly private or state matters. But in the Affordable Care Act case, Roberts, who in his first year on the bench did more to limit the reach of Brown v. Board of Education than any previous justice, commented that “the Commerce Clause is not a general license to regulate an individual from cradle to grave” (a proposition no one has suggested). Justice Ruth Bader Ginsburg, in her opinion, rightly picked up on that surprising assertion, calling the chief justice’s claim “stunningly retrogressive.” But as court watcher Jeffrey Toobin notes, “Roberts’ narrow conception of the Commerce Clause is now the law of the land”—and an invitation to legal challenges to other federal legislation and programs.80
A Stanford law professor dubbed Roberts’s ruling “a loaded gun.”81 Faculty at the George Mason School of Law, now aptly named after Antonin Scalia, are urging the court to fire it by going back to its pre-1937 jurisprudence, when the justices routinely struck down government action to advance popular economic security or social justice goals.82
As the push for aggressive judicial activism on behalf of economic liberty illustrates, for all the small-government rhetoric, the cadre actually wants a very strong government—but a government that acts only in a way they deem appropriate. It wants our democracy to be curbed as Chile’s was, with locks and bolts on what the majority can do. Three additional battlefronts illuminate this truth, highlighting the stark restructuring of power under way.
One is a power grab by affiliated state legislators reaching down to deny municipal governments the right to make their own policies on matters hitherto within their purview, not least local election rules. Pushed by State Policy Network affiliates and guided by ALEC-affiliated legislators, GOP-controlled states have been passing what are called preemption laws that deny localities the right to adopt policies that depart from the model being imposed by the network-dominated state legislatures.83
Typically, the GOP state governments are preventing city and suburban governments from enacting measures to raise local minimum wages, protect the environment, or enact antidiscrimination measures that would protect LGBTQ citizens. In Texas, for example, the City of Dallas lost the autonomy to discourage local retailers from using plastic bags, because, its people were told, it ran counter to “the Texas model” of “low taxes, limited government and free markets.”84
But the pattern now emerging is not a paradox after all: the cause understands that, as in the 1950s, corporate and conservative interests can make their will felt most easily in state governments—and are more likely to be challenged successfully by the citizenry at the federal and local levels—partly because state affairs are less well monitored by the people and the press.85 Tractability was thus state officials’ prime qualification for the cadre’s plans. Virtually every state government, according to a recent study by the nonpartisan Center for Public Integrity, kowtows to business and the wealthy, underrepresents citizens of lesser means, lacks transparency, and does a poor job of enforcing ethics laws. The promotion of states’ rights is not an atavistic racial reflex for the insiders, that is to say, bu
t a cold-eyed way to secure minority rule.86
If the cadre has its way, in fact, and its allied legislators continue to comply, a nation that stands at 138th of 172 democracies in the world in voter turnout will have even fewer people participating in the political process.87 After America elected its first black president, operatives throughout the apparatus and their allied officeholders systematically kindled the irrational conviction that Barack Obama had won through massive voter “fraud,” and that, unless a battery of new laws prevented it, such fraud would be used to “steal” more elections. This was the cadre at its most cynical. But so avidly has this big lie been spread that nearly half of registered voters, and even federal judges and Supreme Court justices, came to believe that fraud was a big problem—and cases have been decided on those fallacious assumptions.88
With fewer people voting, everything will be so much easier to achieve. In the two years after Republican candidates swept the 2010 midterm elections, ALEC-backed legislators in forty-one states introduced more than 180 bills to restrict who could vote and how. The measures would most reduce the political influence of low-income voters and young people, who had been inclining leftward. America had not witnessed such a burst of limits on voting rights since the calculated mass disenfranchisement instituted by southern states a century ago.89 But now the effort was national, not only regional, and before long it was affecting outcomes.90
A related strategy further distorts political representation to advance the property rights supremacist project. One part of this initiative was the most audacious gerrymander in U.S. history, with the purpose of ensuring systematic underrepresentation of Americans viewed as troublesome by the cause and overrepresentation of the more manageable—while lining up the supermajority of reliably controlled states needed to hold a constitutional convention. Journalists—in particular, Jane Mayer and David Daley—have done an excellent job of exposing the evil genius of the 2010 midterm elections campaign plan called the Redistricting Majority Project, or REDMAP. It was a cunning project to amass state-level power to transform the nation by using the decennial redistricting process to sharply boost the power of Republicans, even where majorities backed Democrats, and to pull the Republican Party to the right of its own voters in the process.91
Understandably, many saw the power grab in purely partisan terms, but it was much more. The breathtaking import is conveyed well by Salon editor in chief David Daley: “Without the protection of a fairly drawn district, the citizen is a pawn of billionaires who use the map of the country” to get what they want. And the game was a long one, all but invisible to those it was locking out. Daley points out that the GOP is an election away “from achieving an unimaginable goal in a country that sees itself as a beacon of democracy: a veto-proof supermajority operating without majority support.”92 The ever strategic Koch grantee Grover Norquist equates the cause’s expanding chokehold over the states with a Roman pilum—a spear powerful enough to penetrate any shield, and barbed, so it “could not be pulled out.”93
A final example of the new bullying we can expect from the plan to enchain democracy also harks back to the midcentury South, with its inquisition-minded state and private bodies to investigate and intimidate dissenters. In 2015, the journalist Kenneth Vogel revealed that the Koch network had “quietly built a secretive operation that conducts political surveillance and intelligence gathering on its liberal opponents, viewing it as a key strategic tool in its efforts to reshape American public life.”94 A case in point: when Jane Mayer began to expose the operations of the Koch brothers and their network, they dispatched private investigators in a fruitless quest to find dirt with which to discredit her and tried to convince her employer to fire her. Anyone who tries to expose what this cause is up to thus must ask herself: Will I become the target of a similar scurrilous attack? Wouldn’t it be wiser to keep quiet? The cadre even has an economics euphemism for harassment designed to intimidate—they call it “upping the transaction costs for the other side.”95
• • •
“Democracy,” the towering African American historian John Hope Franklin observed in the midst of World War II, “is essentially an act of faith.”96 When that faith is willfully exterminated, we should not be surprised that we reap the whirlwind. The public choice way of thinking, one sage critic warned at the time James Buchanan was awarded the Nobel Prize in Economic Sciences, is not simply “descriptively inaccurate”—indeed, “a terrible caricature” of how the political process works. It also constitutes an insidious attack on the very “norm of public spiritedness” so crucial to shaping good government policy and ethical conduct in civic life. That is to say, public choice theory was wrong in its explanations, and would be toxic if believed by the public or its representatives. We have seen the truth of that prediction.97
The United States is now at one of those historic forks in the road whose outcome will prove as fateful as those of the 1860s, the 1930s, and the 1960s. To value liberty for the wealthy minority above all else and enshrine it in the nation’s governing rules, as Calhoun and Buchanan both called for and the Koch network is achieving, play by play, is to consent to an oligarchy in all but the outer husk of representative form.98
The question this stealth plan presents Americans with is, at one level, quite simple: Do we want to live in a cosmetically updated version of midcentury Virginia, in a country that so elevates property rights as to paralyze the use of government for democratically determined goals and needs? That extinguishes “the political we”?
For what is the substance of James Buchanan’s and Charles Koch’s idea of liberty but Harry Byrd’s Virginia, the state subjected to the “most thorough control by an oligarchy,” with tools now to be grafted upon the nation as a whole? Byrd’s state-mandated racial oppression would go; the cause would not publicly advocate for that. But nearly all else about the political economy of midcentury Virginia enacts their dream: the uncontested sway of the wealthiest citizens; the use of right-to-work laws and other ploys to keep working people powerless; the ability to fire dissenting public employees at will, targeting educators in particular; the use of voting-rights restrictions to keep those unlikely to agree with the elite from the polls; the deployment of states’ rights to deter the federal government from promoting equal treatment; the hostility to public education; the regressive tax system; the opposition to Social Security and Medicare; and the parsimonious response to public needs of all kinds—not just the decent schools sought by aspiring teenagers like Barbara Rose Johns and John Stokes but also the care and shelter of the elderly poor, the mentally ill, and others in whose names Dr. Louise Wensel ran her 1959 Senate campaign against Old Harry. Her core criticism, after all, was that he worshipped “the golden calf”: that he prized the accumulation of private wealth over the Golden Rule and democracy, “no matter what the cost.”
The libertarian cause, from the time it first attracted wider support during the southern schools crisis, was never really about freedom as most people would define it. It was about the promotion of crippling division among the people so as to end any interference with what those who held vast power over others believed should be their prerogatives. Its leaders had no scruples about enlisting white supremacy to achieve capital supremacy. And today, knowing that the majority does not share their goals and would stop them if they understood the endgame, the team of paid operatives seeks to win by stealth. Now, as then, the leaders seek Calhoun-style liberty for the few—the liberty to concentrate vast wealth, so as to deny elementary fairness and freedom to the many.
Is this the country we want to live in and bequeath to our children and future generations? That is the real public choice. If we delay much longer, those who are imposing their stark utopia will choose for us. One of them has announced flatly: “America will soon make a decision about its future. It will be a permanent decision. There will be no going back.” As we consider the future of our democracy in light of all that has hap
pened already, we may take heed of a Koch maxim: “Playing it safe is slow suicide.”99
ACKNOWLEDGMENTS
They say that a liberal arts education prepares one for lifelong learning, which is true. But less often acknowledged is how your earlier teachers prime you for both. I wish all children could experience the quality of education I enjoyed in some of America’s great suburban public schools. I am deeply grateful for the mentors I found there, foremost among them Franklin J. Wiener. After giving up a lucrative career in advertising to pursue his true vocation of teaching high school English, Mr. Wiener earned the love of generations of grateful students. In the belief that no starting teacher should have to work two jobs to pay the bills, he also supported his colleagues through his union activism. For years, I had over my desk a mounted newspaper photo of him walking a picket line with his signature pipe and a sign that read TEACHERS PAY TAXES, TOO. I lost the photo in a move, but his devotion to young people and belief in us changed my life.
I also had some amazing lucky breaks in the informal teachers to whom this research led me, and it is to them, above all, that the book is dedicated. When I first became interested in the Prince Edward County story, several people familiar with it said I must talk with Ed Peeples. An e-mail inquiry proved the start of a lasting friendship. As Ed welcomed me into his Richmond attic archive and he and his kind wife, Karen, put me up in their home, he taught me about life in Harry Byrd’s Virginia.
Ed’s friend James H. Hershman Jr. had never met me when I first contacted him after learning of James Buchanan from a footnote in his work. Yet Jim instantly understood the stakes of the research I was pursuing and took me under his wing, becoming my personal guide through the thickets of Virginia history, as well as a dear friend. His knowledge of the state’s past is encyclopedic, his analyses unfailingly illuminating, and his generosity as a scholar absolutely without peer. I have whole files of material from him, including scores of primary sources I would not otherwise have found, along with his own astute capsule histories on various matters. In short, I could never have written this book in this way had I not had the good fortune to be included on the ever lengthening list of researchers whom Jim has assisted over the years. I like to think he had special enthusiasm for this project because it tracked the stages of his own life in Virginia so closely, but either way, I am grateful beyond words that he also read the entire manuscript, saving me from errors while providing superb advice on interpretive matters large and small. If I still managed to get anything wrong, it is owing to my effort to simplify matters of byzantine legal and political complexity for a general readership, not to any want of careful guidance on his part.
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