The driving purpose of such legal developments has not been a desire to subvert the Constitution. Typically, it has been to pursue some aspect of cosmic justice. From this perspective, the subversion of the Constitution is an incidental by-product. Moreover, for each particular piece of legislation or any given legal case, the incremental damage done to the Constitution may seem to be slight. It is only in the aggregate that this pursuit of cosmic justice “at all costs” becomes a dangerous destruction of the rights that define and defend a free society.
Those subject to the destruction of their rights—and hence the jeopardizing of others’ rights through legal precedent—have typically been some group easily demonized within the context of a vision of cosmic justice. Big business has historically been a prime target, long before those accused of being racists, environmental polluters, child abusers, and other defendants who have become featured targets more recently. The Sherman Antitrust Act of 1890 forbad “monopolization”—a term undefined except ex post in litigation—and the later Clayton Act of 1914 and Robinson-Patman Act of 1936 were at least equally vague.
In these latter statutes, various acts committed by businesses are illegal when they “substantially lessen competition” in any line of commerce. When the courts have deemed the acts of a small rubber stamp manufacturer with only 19 employees, and with 70 competitors in the same city, to have met the criterion of substantially lessening competition,30 the ability of any business to know in advance whether what it is doing will be considered to fall under the Clayton or Robinson-Patman Acts is questionable at best, if not wholly illusory.
More fundamental than the vagueness of these acts is the shift of the burden of proof to the accused. The government or a private plaintiff need only make a prima facie case—that is, a case that does not even have to meet the standard of a “preponderance of evidence,” much less “beyond a reasonable doubt,” to force the accused to prove his innocence. In many cases, the elusiveness of the concepts and the inconclusiveness of the evidence make it impossible for anybody on either side to prove anything. The accused lose those cases. Thus the rubber stamp manufacturer with only 19 people working for him “did not prove affirmatively” that his giving discounts to some customers “did not lessen competition or tend to prevent it,” according to the Court of Appeals.31
While this particular case provided a precedent only for the Second Circuit Court of Appeals, many other cases have likewise been lost by the accused because they could not disprove prima facie cases consisting solely of the fact that they gave some customers discounts. When the Borden Company sold evaporated milk to jobbers who bought in large quantity at a discount below what it charged grocery stores, or when Standard Oil sold gasoline at a discount to jobbers who likewise bought in large quantities, both the companies lost their cases because they could not conclusively prove their innocence under the law.32
Many anti-trust cases, especially those involving the Robinson-Patman Act, show a pattern that would later appear in the very different realm of affirmative action cases—reversals and re-reversals as the cases go up the chain of appeals, climaxed by 5 to 4 decisions in the Supreme Court. While those with a self-congratulatory bent could attribute this to the “complexity” of the issues and to their unwillingness to be “simplistic,” more fundamentally the problem is not complexity but contradiction—between statutory attempts to produce cosmic justice and the underlying principles of the Constitution, which are necessarily violated in these attempts.
COSMIC JUSTICE VERSUS DEMOCRATIC FREEDOM
Definitions
Democracy can be defined in a very straightforward way: majority rule. There are, of course, many variations of majority rule, ranging from town-meeting democracy to the representative democracy of legislatures. Moreover, even majority rule may be constrained, as it is in the United States, within constitutional limits that can be changed only by a super-majority in Congress, combined with a super-majority of the state legislatures. But the core idea is clear enough, even though some confusion has been introduced in our times by trying to include within the very definition of democracy various end-results expected or desired, such as freedom, the dignity of the individual, and other goals. But democratic government is democratic government, whether its decisions are wise or foolish, humane or vicious.
Freedom, however, has long been defined in radically different ways by those with different visions—and especially by those in quest of cosmic justice. The traditional conception of freedom as exemptions from power has already been illustrated by such language in the Constitution’s Bill of Rights as “Congress shall make no law ...” Note that the possible merits of these laws is not at issue. When it comes to freedom of religion, or of the press, for example, Congress shall make no law. Exemptions from any laws that Congress might want to make is, in effect, the definition of these freedoms. By implication, power is the ability to restrict people’s options and freedom is an exemption from having one’s options restricted in such matters as religion or the expression of ideas.
All this changes, however, within the framework of cosmic justice, where freedom and power are conceived in entirely different terms. Among the many expressions of this very different view is that in R. H. Tawney’s Equality:
Power may be defined as the capacity of an individual, or group of individuals, to modify the conduct of other individuals or groups in the manner which he desires, and to prevent his own conduct from being modified in the manner in which he does not.33
Innocuous as this definition might seem, it implies a radical departure from the traditional conception of freedom as embodied in constitutional exemptions from government power. The much broader notion of modifying other people’s behavior includes power in the traditional sense but is by no means limited to it. For example, when an athlete is offered a multimillion-dollar contract to play football, that may well modify any previous plans he had to become a dentist or an accountant. Few people would regard that as a restriction of his pre-existing options. On the contrary, it is adding an option that may prove to be far more attractive, though the athlete remains free to make any of the other choices that were available to him before. From these very different conceptions of freedom and power flow very different practical conclusions about political and economic issues. In traditional terms, he has lost no freedom to those with power. In cosmic terms, exemplified by Tawney’s definition, he has.
From the cosmic conception of power flows the otherwise anomalous notion of “economic power” that has exercised an influence ranging from anti-trust policy to apologetics for communism. A “concentration of economic power,” as Tawney phrased it,34 serves as a justification for government restrictions on those businesses which attract a large proportion of the consumers of a given product. Thus a firm whose product is bought by two-thirds of the consumers of such products is said to “control” two-thirds of that market and of course to have “economic power” that government must contain or neutralize in some way.
In the absence of the notion of “economic power” and such accompanying rhetoric as “control,” this situation is more likely to be seen as one in which two-thirds of the consumers prefer a given firm’s product over similar products made by competitors—a situation far from ominous and perhaps one in which congratulations are in order for the firm that did such a better job of providing what the consumers wanted. But, of course, this more sanguine way of looking at things would not justify an expansion of government power to offset “economic power.” Such expansions of government power have included not only anti-trust laws and other regulations of businesses but have extended all the way to socialism and communism. Whatever the specific merits or demerits of any of these policies and institutional changes in themselves, the concept of “economic power” allows concerns about expansions of government power to be finessed by saying that this is not a net increase of power or a net diminution of freedom, since it merely offsets private “economic power,” in order to prote
ct the public.
For the sake of following a particular example of the application of the concept of “economic power,” we may again look to Tawney, though he was in no sense unique or even unusual among those seeking cosmic justice. According to Tawney, “84 percent of the output” in the British coal industry of his time was “produced by 323 concerns employing over 1,000 workers each, and nearly one-fifth was produced by 57 firms”—all of this representing “a concentration of economic control.”35 Similar statistics have been cited for innumerable industries in many countries, as if such retrospective statistics are proof of prospective “control” of anything. Indeed, in any line of human endeavor, some x number of producers produce two-thirds, three-quarters, or whatever other percentage one chooses, of the total output.
For example, in the same year in which Tawney’s book was published (1931) just 13 baseball players hit more than half the home runs in the American League, even though there were about two hundred players in the league. The same was true in the year for which coal concentration statistics were cited (1923).36 Nothing has been more common, in countries around the world and over centuries of history, than for a fraction of the participants in any given activity to produce a disproportionate amount of that activity.37 Yet nothing has been more common among intellectuals than to regard such disproportionalities as unusual, if not sinister.
The relevance of all this here is that the cosmic perspective on the world which leads to such notions as “economic power” and “control” provides a rationale for an expansion of government power that does indeed reduce pre-existing options and thus constrict freedom.
Buying and Selling Freedom
Among the American constitutional barriers to the expansion of federal government power is the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In other words, the federal government may do only what it is specifically authorized to do, while the people or the individual states may do whatever they are not specifically forbidden to do. This barrier against the centralization of power is one of the fundamental protections of freedom and epitomizes the spirit of the American revolution. In the absolute monarchies of old or the dictatorships of the twentieth century, all power flowed from the center, with regional or local governments being simply subordinate units of the central government, rather than autonomous authorities with their own areas of exemption from the power of the national state. This deliberate splitting up of a country’s political power by the Constitution has been one of the bulwarks of individual freedom and democratic self-government. Unfortunately, no constitutional provision has been more consistently eroded or more blatantly ignored in the latter half of the twentieth century than the Tenth Amendment.
Partly this has been done by judicial sleight of hand since the days of the New Deal and then, especially since the 1960s, by the federal government’s attaching conditions to its everexpanding largesse to states and to private institutions—conditions which the national government has no constitutional authority to impose directly by law, but which they impose indirectly by the threat to cut off billions of dollars of subsidies on which these states and institutions now depend. In short, the federal government has been buying up the freedom of the people with the people’s own tax money.
For the judiciary, vast expansions of the scope of federal power during the heady crusades of the New Deal—many of them fueled by notions of cosmic justice—were justified by the constitutional provision that Congress had the right to regulate “interstate commerce.” This provision became a blank check by which virtually anything that Congress wanted to regulate was simply called “interstate commerce.” In a landmark case involving federal regulation of agriculture, the Supreme Court ruled that a man who grew his own food in his own back yard was engaged in interstate commerce and thus was subject to federal control. For decades, vast expansions of federal power were repeatedly and almost automatically rationalized as authorized by Congress’ power to regulate interstate commerce.
So deeply ingrained was this new tradition that there was consternation when, in 1995, the Supreme Court ruled that carrying a gun near a school was not interstate commerce.38 The justices split 5 to 4 and most editorial comment centered on whether it was desirable to allow people to carry guns near schools, not on the nature of constitutional government. The fact that most states already banned the carrying of guns in or around schools, and that all had states had the authority to do so, meant that the real issue was not the safety of children but the scope of federal power. Unfortunately, the scope of federal power was no longer an issue for many Americans, since the Tenth Amendment had quietly been repealed by judicial erosion, so this first setback in decades for the blank-check interpretation of the interstate commerce clause caught many people by surprise. Moreover, the fact that this was a 5 to 4 decision meant that it might turn out to be nothing more than an isolated blip on the screen of history, rather than the beginning of a restoration of the constitutional principle of limited national government power.
Since the 1960s, federal government power over states, private institutions, and individuals, has expanded far faster than the pace made possible by the accretions growing out of particular Supreme Court cases. Crucial to this whole development has been a vast expansion of federal “aid” to innumerable activities from highway building to university research and from urban redevelopment to hospitals and adoption agencies. With this aid has come conditions—typically modest conditions at first and then, over the years, increasingly detailed, restrictive, and arbitrary regulations. Thus the federal government can prescribe the color that fire extinguishers must be painted in state or private buildings or whether private child-care facilities must hire people with communicable diseases or mental illness. Although such sweeping powers come from buying up people’s freedom, often there is little alternative but to sell, since there is no realistic way for most individuals or institutions to refuse to sell their freedom and return to the status quo ante.
If the federal government pours hundreds of millions of dollars in research grants and student subsidies into Harvard, then Yale cannot reject the same subsidies without falling decisively behind Harvard in all the areas in which they compete for students, faculty, and academic standing. There is no way for Yale to restore the status quo ante unilaterally. In virtually every activity in which there is competition—which is to say, in virtually every activity—no given recipient of federal largesse can refuse to sell local autonomy or institutional freedom without losing out to other institutions that were comparable before the expansion of federal largesse.
No institution has been more traditionally one of local control than the public schools. Yet the growing scope of federal subsidy and control, particularly through the Department of Education, has successively removed more and more decisions from the parents and voters in local school districts, transferring those decisions to Washington. It simply does not matter whether parents, voters, or local officials are up in arms against “whole language” methods of teaching reading or the promotion of avant-garde sexual attitudes in schools, if these ideas are in vogue among those in Washington who control the purse strings. It does not matter if Hispanic parents want their children to be taught in the English language if federal bureaucrats favor so-called bilingual programs in which most courses are taught in Spanish. It does not matter if local schools want to maintain tighter discipline if federal guidelines make it impossible to run a tight ship.
Despite numerous studies showing that the amount of money spent per pupil has little or no effect on the quality of education, federal officials are constantly pushing for an expansion of federal aid to education under the guise of “investing” in our children’s futures. However little effect this money will have on the quality of these children’s education, it has had an enormous effect on the expansion of federal p
ower. This money may not buy a better education for the students but it unquestionably buys up the freedom of parents, voters, and local authorities, and transfers decision-making power to Washington.
Nor are schools at all unique in this respect. It does not matter if a hospital does not want a pharmacist with AIDS handling medicines to be administered to its patients if the institution will lose millions of dollars in federal money for transferring him to some other activity where his disease would be less dangerous. It does not matter if a child-care center does not want to hire someone with a history of mental illness to take care of its children if the federal government can cancel their subsidy for violating its “guidelines” for hiring the mentally ill. It does not matter what private physicians and their patients might want to do in treating a particular illness—even if these patients pay for treatment out of their own pockets—if that physician treats other patients whose bills are paid by Medicare and thus falls under federal controls that apply to his practice in general.
Schemes to extend federal power into the nooks and crannies of local and even private activities are never publicly advertised as expansions of federal power, much less erosions of the Tenth Amendment, but always in terms of the wonderful goals they are said to achieve—“universal health care,” “investing in our children’s futures,” “insuring a level playing field for all,” etc. As many have warned in the past, freedom is unlikely to be lost all at once and openly. It is far more likely to be eroded away, bit by bit, amid glittering promises and expressions of noble ideals. Thus hard-earned freedoms for which many have fought and died have now been bought and sold for words or money, or both.
The Quest for Cosmic Justice Page 16