Archive for the ‘Progressivism’ Category
"Americans don’t want to see their neighbor dying bleeding in the street," [Mark Pauly] says. "Therefore we already make sure that everyone gets some medical care when they need it. . . .”
This might be true. I’ve mentioned that I probably have to agree that we need a safety net when it comes to health insurance. But let’s not pretend that liberals want to stop with just preventing their neighbors from dying bleeding in the street. They also insist on legislation to prevent their neighbors from being hungry, fat, underpaid, overpaid, jobless, overworked, pensionless, discontent, demoralized, bored, underutilized, untrained, unskilled, feckless, useless, or otherwise pitiable for whatever reason. When the haplessness of man has become the universal incitement to political action, there can be no end to the work of an energetic and meddlesome state.
Remember before Obamacare passed and folks like Ezra Klein were saying that if the bill didn’t pass, tens of thousands of people would die each year as a result? Tim Carney recounts the interesting journey this argument has taken, from adamant insistence on its rightness, to the recent proclamation that “Health care doesn’t keep people healthy — even in Canada.”
One of the so-called advantages of liberalism is its emphasis on “empirical” analysis of social problems. If nothing else, it does indeed have strategic political advantages. Observe: Once the model is adopted, the approach proceeds by identifying some kind of social “epidemic”—e.g., “tens of thousands will die without health insurance,” or “the middle class will collapse without unions,” that sort of thing. Establish the question as a moral one. Next, make vociferous arguments insisting that “the data is in” and that practical results based on rigorous empirical analysis should be favored, and that conservative, piecemeal approaches that insist on constitutional/legal consistency should be eschewed. Remember, people will die. And the Constitution is over a hundred years old, after all. By this time, if you’re doing it right, you can accuse your objectors as both morally and intellectually insolvent. Then, only later when the empirical analysis is finally demonstrated to have been full of beans, the playbook prescribes a casual acknowledgment that maybe some mistakes were made on both sides, but that we oughtn’t throw the gears of the bureaucratic regulatory machine in reverse now. Throw in some familiar terminology like market predictability and stare decisis. Finally, before awaiting further protestation, promptly identify yet another social epidemic calling for further empirical assessment and immediate constitutional policy overhaul.
You can’t stop progress.
E.D. Kain asks whether we’re thinking about public sector pensions all wrong. True, they generally receive higher salaries, more job security, better working conditions, greater benefits, more paid sick leave, vacation, and holidays, and better and earlier retirements than the rest of us. But taking aim at public sector employees is exactly the wrong approach, E.D. suggests—by pitting working class against working class, they both ignore the real enemy, the rich, who casually continue to stockpile their wealth. Thus, E.D. argues that the ideas of “austerity for all” and “upside-down egalitarianism” distract us from what we should really be working on: infusing more wealth into the middle class:
Maybe we should be trying to bring the private sector more in line with the public sector. Maybe the logical conclusion is that private sector workers are getting screwed – and that comparisons with public sector unions simply makes this glaringly obvious. Nobody but public sector employees receive pensions anymore. And maybe this is an argument to move back to the pension model rather than an argument to get rid of public pensions. Maybe leveling the playing field is the right idea, but we should level it up rather than level it down.
I’ve written before that, despite my conservative biases, I’m mesmerized by the progressive/utopian ideas of Edward Bellamy and early Robert Heinlein, in which man is provided a comfortable living as a matter of right and left to his own devices to cultivate his productive capacity as he sees fit. Speaking for myself, I don’t imagine I would suddenly become entirely unproductive if the government starting writing me a check each month. Yet, I seriously question whether this applies to every American, or even a substantial majority of them. Could we continue to support ourselves in the way we’ve grown accustomed if we all suddenly got comfortable?
Arguments like Bellamy’s Heinlein’s and E.D.’s suggest that our future holds a world in which the middle class is guaranteed comfort, stability, and reasonably interesting and not-terribly-stressful employment. Nay-saying curmudgeons like me think that humans tend to fall prey to their own vices; thus, to have any kind of comfort, stability, and interesting work, people require certain unpleasant kinds of motivation—competition, stress, fear of unemployment, worry about the future, etc. In short, while there are certain people who have a burning desire to be productive, most of us have only a latent desire to be productive. As Thomas Edison said, "most people miss opportunity because it’s dressed in overalls and looks like work." It takes unpleasant external forces to get the human productive spirit whipped up into useful action.
Yet, I think I can safely assume that this view will never enjoy unanimous support, so we are left with E.D.’s suggestion: Why not focus our middle class energy on “leveling up” the playing field to our collective benefit? But think about what this suggests. Public sector compensation is not determined by market factors. Indeed, the very definition of the public sector is that it is something outside the private sphere. While private sector numbers are sometimes used as a touchstone, the determining factor in public sector compensation is ultimately moral/political. This is why the left loves to grow government, as this enables politicians and bureaucrats to engineer their own version of what the middle class ought to be. Specifically, most of today’s public sector workers came to their jobs knowing they would be paid less, but that certain benefits were more generous. But politicians, usually left-leaning, eventually decided public employees shouldn’t have to choose between future comfort and present comfort, and that they ought to have the best of both. But, by now, many state and local government workers make more than their private sector counterparts, and the gap continues to widen each year. From 2000 to 2007, public employees saw a 16% increase in compensation after adjusting for inflation, compared with just 11% for private workers, according to the USA Today.
So, to suggest that we ought to reconcile our two middle classes—the public sector and the private sector—by using the public sector compensation structure as the model, is to say that all compensation in the U.S. should be determined by moral/political factors rather than market factors.
Before considering what this means, let me say that I don’t fault E.D. for being allured to that position. For all the talk about how we ought to let the “free market” determine winners and losers rather than politicians and bureaucrats, the free market is inscrutable and substantially unfree. As I wrote about recently, beginning at the turn of the 20th century, our economy has become increasingly diffuse, providing few obvious connections between labor and consumption, indicating the two are only loosely or insignificantly related. Modern labor is attenuated from its ultimate product, making the idea of the traditional work ethic prevalent in pre-20th century agrarian America less and less relevant. The American laborer no longer provides his own essentials of survival, but instead deposits his effort into a vast and complex economic machine. His yield, his “wage,” serves as the only symbol of his output, a rebuttable presumption of the true “value” of his labor. How does a cubicle worker in the marketing department of the Coca-Cola corporation have any idea how much his efforts contributed to the 1.3 billion servings of cola his employer sold that day? Next to none. And yet he counts on his paycheck form those efforts to pay his mortgage and buy cars and iPhones and college educations for his children.
As his commercial appetites continued to increase—goaded by our consumer economy—the American middle class begins to closely scrutinize the legitimacy of that presumption. It was this deadly cycle that ultimately led to a new, illegitimate basis for finding “individual rights” in American politics: If the market would not set a wage sufficient to meet the standard of living the American labor thought he should have, he would set it himself. And the tool he would use to accomplish this was collectivism—e.g., labor unions. Like the ills of slavery, since government had aided the accession of uncorked individualism (e.g., through a national bank and internal rail and telegraph projects), it was natural and perhaps even appropriate to look to government to redress its abuses.
As E.D. suggests, the finance sector might also deserve some blame for the middle class dilemma:
I always thought a thriving middle class was good for business, that the corporate world would want to pay people well and keep them happy so that they kept buying things. But it turns out that you don’t need a middle class to buy things, to keep the engines of commerce humming and whirring and piling up vast stores of cash. These days anyone can buy things, all it takes is a little credit card debt, maybe a second mortgage. For the truly committed consumer there’s always payday loans.
This strikes me as correct. The middle class allowed itself to be lulled away from the bargaining table by loose credit and home equity lines of credit, and have probably been getting lousier terms from employers over the last few decades as a result.
But while I’m tentatively sympathetic to the labor movement for some of the above reasons, I believe it’s basically only justifiable on pragmatic grounds. There is no reason why rampant individualism, whether of the late 19th and early 20th centuries or of today, is “wrong” from a legal point of view. As leaders like Teddy Roosevelt have admonished, however, the masses will not tolerate gross income inequality for long. If the wealthy do not moderate their own indulgences, the government, as a matter of political necessity, will have to do it. However, getting the government involved in choosing winners and losers—or deciding the measure of those winnings—is an unpleasant and dangerous business. It should be avoided at all costs, and probably should be abandoned once political exigencies have subsided.
As E.D. suggests, having a strong middle class is good for everybody, but corporations won’t trickle it down unless the government or collective bargaining makes everyone else trickle it down, too. Perhaps. The big problem E.D. and others will have to contend with is, once you start redistributing power, how do we decide who gets more or less power, and how much more or less? Conservatives and libertarians love leaving these decisions to nature and markets because, for all their faults, they’re procedurally fair—even though they may not be substantively fair. If we give up or alter procedural fairness to achieve greater substantive fairness, as E.D. proposes, he will have to contend with how we can still guarantee procedural fairness. This is the hill the left and the labor movement usually die on.
I was referred to Michael McGerr’s A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870-1920 after making some comparisons of conservatism and liberalism to Progressivism. It was one of the first full length books I read on my new Kindle, and I found myself glad for the ability to easily tag and annotate McGerr’s many important ideas. Upon finishing the book, I’ve set out to fortify the basic position I advanced here, as I believe it is vindicated by the historical record set out in McGerr’s book.
It has become a more involved project than I anticipated, however, and thus I have decided to break it out into several parts—probably three, by the looks of it. The first part, below, concerns the decline of the era of Victorian individualism, and the forging of a new idea of individualism and individual entitlements.
* * *
For good reason, rebranding liberals as “progressives” is a widely used tactic on the right. It is so effective because it associates the left with the repugnant and, even better, failed political movement of the late 19th and early 20th century. That movement, of course, is the one that strove to remake humanity—economically through redistribution, morally through prohibitory legislation, and genetically through sterilization and eugenics. The Progressives’ zealous campaign against individual rights ultimately led even FDR, the very symbol of the remade 20th century America, to distance himself from the movement. Thus, even while its legacy survives, Progressivism’s name is a scarlet letter in American politics. An intellectual family tree that relates Progressivism to modern liberalism is thus a tremendously effective polemic device.
Yet, the right often neglects to mention that conservatism also makes an appearance on Progressivism’s family tree. In its early stages, after all, Progressivism was a reaction to the decline of Victorian values, bowing under the weight of an increasingly industrialized and fractured American society. Campaigns to stem the uptick of divorce, prostitution, and drink resulted in our nation’s first flopped constitutional amendment. Progressives also were content to use the power of their new labor unions to exclude blacks from entire industries.
In A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870-1920, Michael McGerr outlines the social, political, and economic forces giving rise to the Progressive movement. It is the early stage of the Progressive moment that most clearly reveals conservativism’s contribution to the ill-fated project. As justice Frankfurter would later write in 1940 in Minersville School District v. Gobitis,
The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization.
It was this sort of conservative sentiment, unconservatively enshrined in national policy, that initially propelled the Progressive moment. American individualism, loosed across a vast continent connected by an unprecedented network of rail and telegraph wire, put strain on America’s underlying social fabric. The divorce rate following the Civil War inclined steeply as high society became obsessed with the pursuit of wealth and self-aggrandizement, perverting the virtue of individualism. While the Victorians had balanced individual freedom with self-control, hard work, and domesticity, McGerr points out, “[t]he rich had seemingly cast aside those balance weights. In the hands of the upper ten, individualism became an excuse for complete autonomy, a legitimization of indulgence and inequality, and a rationalization of the troubling national status quo.”
Because of the wild success of America’s system of government in creating vast fortunes and divergent ways of life, Americans, perhaps unwittingly, undermined the connection with their own social fabric. The old town economies and country religions were out. A new national economy and civic religion were in.
The wealthy, however, did not seem to grasp what was happening, or account for the growing resentment felt toward them. From their perspective, their parties “helped the economy because ‘many New York shops sold out brocades and silks which had been lying in their stock-rooms for years.’” Teddy Roosevelt tried to stave off the coming revolt, noting that social and political stability impel the wealthy to observe certain “duties toward the public.” “Do they not realize that they are putting a very heavy burden on us who stand against socialism; against anarchic disorder?” “I wish that capitalists would see that what I am advocating is really in the interest of property, for it will save it from the danger of revolution.”
The extravagance of the “upper 10” during the depression years of the 1890s galvanized populist resentment, particularly as Victorian individualism was failing the industrial class at the same time. Industrial work was distantly attenuated from its product, and thus the traditional agrarian work ethic, like the traditional agrarians themselves, began to wane. McGerr notes that by 1900, following the depression of the 1890s, wage workers in manufacturing earned an average of $435 for the year. The working-class earned less yet: anthracite coal miners averaged $340 for the year; domestics, $240; and agricultural laborers, only $178 with room and board. The middle-class, on the other hand, working as clerical workers in railroad and manufacturing firms, averaged $1,011. For the lower classes, McGerr argues, “Victorian individualism was impossible . . . . Many workers simply could not make enough to support themselves, let alone a family.” This, along with frequent economic upheavals typical of markets, tended to undermine the moral force of individualism among turn-of-the-century wage-earners.
Despite capitalism’s harsh terms, its attendant virtues of thrift and self-sacrifice began to decline. As McGerr notes, wage workers simply “saw little point in trying to save their dollars and deny themselves.” Instead, they took the little they had and threw it into the same rat hole of excess as the rich.
Some workers shared the upper-class obsession with fashion and display. Young laboring women spent precious dollars on flashy clothing intended to match or even outdo the upper ten. “If my lady wears a velvet gown, put together for her in an East Side sweatshop,” a reporter in New York observed in 1898, “may not the girl whose fingers fashioned it rejoice her soul by astonishing Grand Street with a copy of it next Sunday? My lady’s in velvet, and the East Side girl’s is the cheapest, but it’s the style that counts. In this land of equality, shall not one wear what the other wears?”
Booker T. Washington also documented this burgeoning sense of entitlement to the bounty of modern life, irrespective of the means to acquire it:
In these cabin homes I often found sewing-machines which had been bought, or were being bought, on instalments, frequently at a cost of as much as sixty dollars, or showy clocks for which the occupants of the cabins had paid twelve or fourteen dollars. I remember that on one occasion when I went into one of these cabins for dinner, when I sat down to the table for a meal with the four members of the family, I noticed that, while there were five of us at the table, there was but one fork for the five of us to use. Naturally there was an awkward pause on my part. In the opposite corner of that same cabin was an organ for which the people told me they were paying sixty dollars in monthly instalments. One fork, and a sixty-dollar organ!
. . . .
On Saturday the whole family would spent at least half a day, and often a whole day, in town. The idea in going to town was, I suppose, to do shopping, but all the shopping that the whole family had money for could have been attended to in ten minutes by one person.
The rise of hedonistic individualism hastened the decline of Victorian values. McGerr notes that “middle-class husbands and wives judged their spouses by the pleasures they provided—the quality of the home and its objects, the happiness of the marriage. The failure to meet those increased expectations was a principal reason for the increasing breakup of Victorian marriages.”
This new form of individualism came as a result of a growingly diffuse economy in which labor and consumption had become only distantly and obliquely related. Industrial work was attenuated from its product, and thus the traditional agrarian work ethic, like the traditional agrarians themselves, began to wane. The American laborer no longer provided his own essentials of survival, but instead deposited his effort into a vast and complex economic machine. His yield, his “wage,” served as the only symbol of his output, a rebuttable presumption of the value of his labor. And, as his commercial appetites continued to increase, American workers started to rebut the presumption. The wage system was being thrown into upheaval: if the market would not set a wage sufficient to meet the American worker’s standard of living, he would set it himself. “It seems to me that when a man, my father, works all day long, he ought to have a beautiful home, he ought to have good food, he too ought to get a chance to appreciate beautiful music.” Thus formed a new basis for “individual rights” in American politics.
Accordingly, Americans, as laborers, resorted to collectivism to feed their individualism as consumers. The marketplace had suddenly become too large and ominous, and the means of production too mechanical and rote, to expect to have much chance of improving one’s lot without collective action. Though businesses would later seek to avoid unionization through “welfare capitalism,” it was already clear that unionization and government regulation were tools too powerful to go unused. Moreover, the new strain of antisocial individualism complained of by Progressives was of relatively recent vintage, created in large part by a growing industrial economy fortified by a strong central government. The cultural and societal growing pains caused by this surge in industrialization were serious concerns. Like the ills of slavery, since government had aided the accession of uncorked individualism, it was natural and perhaps even appropriate to look to government to redress its abuses.
After finishing Michael McGerr’s A Fierce Discontent, about the Progressive movement in the late 19th and early 20th century, I found striking the sheer number of parallels between Chrystia Freeland’s “new global elite” and Teddy Roosevelt’s “economic royalists” of the turn of the century. Thus, I found immediately suspicious one of Freeland’s initial claims, that “the rich of today are also different from the rich of yesterday.” Differences, in degree, yes, but not in kind. The individualist spirit of today’s mega-rich is of the same genus as that of the Carnegies and Rockefellers. Indeed, as Freeland goes on in describing today’s elite:
Its members are hardworking, highly educated, jet-setting meritocrats who feel they are the deserving winners of a tough, worldwide economic competition—and many of them, as a result, have an ambivalent attitude toward those of us who didn’t succeed so spectacularly.
In fact, this is precisely the attitude of the early 20th century elites that drew the ire of the Progressive movement. “[The] failures which a man makes in his life are due almost always to some defect in his personality, some weakness of body, or mind, or character, will, or temperament,” John D. Rockefeller wrote. As an exasperated Teddy Roosevelt warned the wealthy: “The operators forget that they have duties toward the public, as well as rights to be guarded by the public through its governmental agents.” “It is amazing folly on their part….” “Do they not realize that they are putting a very heavy burden on us who stand against socialism; against anarchic disorder?”
Yet, like Tyler Cowen’s in his recent piece on income inequality (summary here), Freeland acknowledges that affluence measured in dollars fails to tell the whole story: economic disparity in America has flattened in many of the ways that truly matter. As Cowen points out, “I have access to penicillin, air travel, good cheap food, the Internet and virtually all of the technical innovations that [Bill] Gates does. . . . [B]y broad historical standards, what I share with Bill Gates is far more significant than what I don’t share with him.” Thus, greater disparity in dollar figures tends to matter less than it did a hundred years ago, when long hours, unsafe workplaces, and unhealthful living conditions served to agitate the lower classes against the wealthy elite.
Another principal difference of today’s elite, Freeman notes, is its expansion beyond national borders in taking advantage of global rather than merely local or national markets. Freeland attributes the “rise of the new plutocracy” to “the revolution in information technology and the liberalization of global trade.” Thus, Freeman says, “today’s super-rich are increasingly a nation unto themselves.”
But Freelands’s new global elite is not different in kind from the early 20th century American elites. As McGerr observes, following capitalists’ wildly successful exploits in the American frontier, the closing of the west due to progressive regulation gave Americans “a sense of economic limits, new in the nation’s history. For the first time, there was a widespread understanding that forests, land, and other resources were not infinite.” “For all the talk of individualism . . . Americans realized that there was no being let alone anymore, even out on the frontier.” Predictably, then, today’s elite have transcended the limitations of local and national markets to explore the frontier-like global economy.
Freeland correctly draws parallels between the emphasis on philanthropy of today’s and yesterday’s elites. “[A]rguably the most coveted status symbol isn’t a yacht, a racehorse, or a knighthood; it’s a philanthropic foundation.” This, however, seems a far cry from how Carnegie or Rockefeller framed the philanthropy question. Carnegie remarked that it was the duty of the wealthy “to consider all surplus revenues which come to him simply as trust funds … for his poorer brethren, bringing to their service his superior wisdom, experience, and ability to administer, doing for them better than they would or could do for themselves.” Rockefeller likewise noted: “I can see but one way in which they can secure a real equivalent for money spent, and that is to cultivate a taste for giving where the money may produce an effect which will be a lasting gratification.” One does not glean from Freeland’s piece that the hyper-philanthropy of today’s elite is born of similar perspective. Indeed, she cites the following as a representative sentiment:
A Wall Street investor who is a passionate Democrat recounted to me his bitter exchange with a Democratic leader in Congress who is involved in the tax-reform effort. “Screw you,” he told the lawmaker. “Even if you change the legislation, the government won’t get a single penny more from me in taxes. I’ll put my money into my foundation and spend it on good causes. My money isn’t going to be wasted in your deficit sinkhole.”
Just as America needed its oft-loathed upper 10% a hundred years ago, it needs its modern elite. “In today’s hypercompetitive global environment, we need a creative, dynamic super-elite more than ever.” Yet, while the fierce individualism of “economic royalists” survived the Progressive attempt to destroy it a hundred years ago, it was forever hobbled, and to this day remains conditioned on guaranteed admission to a generous, upwardly mobile middle class. As FDR acknowledged, bold attempts to breed the individualist spirit out of Americans was a hopeless cause. Americans simply wanted controls to guarantee that the greater affluence of the elite class translated into greater affluence of the middle class and, once that were accomplished, that Americans be left free to indulge in the gratification of consumerism. As Freeland aptly puts it, “The lesson of history is that, in the long run, super-elites have two ways to survive: by suppressing dissent or by sharing their wealth.” As McGerr puts it, “The task of government was to make sure Americans could afford pleasure, and then get out of the way.”
After reading Erwin Chemerinsky’s The Conservative Assault on the Constitution recently, I’ve come to understand just how policy driven his approach to the Constitution is. I plan to write up a review of his book, but I thought it was noteworthy that not even Bill Maher defends the Democrats’ shameful politicization of the judicial confirmation hearings of Robert Bork in 1987, and yet Dean Chemerinsky hales it as a victory for the Progressive view that a right to abortion, among other things, ought to be judicially amended to the Constitution. To understand his book, one need only slightly recast its title: call it “The Conservative Assault on the Unwritten constitution”—as in, the unwritten, judicially rendered constitution—and you start to get the picture. Nearly every case Chemerinsky surveys involves conservatives chipping away at Progressive decisional law, not U.S. Constitutional law. Supreme Court decisions rolling back affirmative action and arcane forced desegregation programs, permitting crèches and Ten Commandments displays on state or local government property, paring down the prophylactic exclusionary rule of criminal evidence for the benefit of good faith law enforcement, and so on. The fact is, without the improper judicial contortions of the Constitution of the past 80 years, there would be no cause for the “assault” Chemerinsky is railing about.
Yet, Chemerinsky does not even hint at the Progressive assault on the Constitution that began in the 1930s. Instead, Chemerinsky rebuffs the argument that the text of the written Constitution ought to be supreme, since this would ignore subsequent decisional law that regards that text as unimportant. To insist on adherence to the Constitution’s text, Chemerinsky argues, “urges a radical change in constitutional law.”
Thus, it is the unwritten, post-1930s “constitution” that concerns Chemerinsky. And he calls the pre-1947 interpretation of the Establishment Clause—which applies only to “Congress,” and not state and local governments—“radical,” and expresses relief that Clarence Thomas is the only Supreme Court Justice who would faithfully apply the actual text of the First Amendment.
In this regard, Chemerinsky is absolutely right that this fraudulent “constitution,” conjured by Progressive activists, is under assault.
Chemerinsky’s results-oriented constitutionalism was nicely demonstrated in an interview yesterday on Hugh Hewitt’s show. Juxtaposed were two recent issues involving the exercise of federal power: the individual health care mandate, and WikiLeaks. When asked whether Congress could force individuals to buy health insurance, Chemerinsky characterized Congress’s authority to conscript Americans into economic activity as all but unquestionable, and the personal right not to engage in certain economic activity as simply nonexistent in the constitution:
I think that the real argument you’re making is that we should have some personal right to not purchase health care if we don’t want to purchase health care. I don’t think there’s any doubt that the health care industry is a huge part of the economy and what Congress is doing is regulating interstate commerce in terms of something that has a tremendous economic effect. I think the real objection is people say, ‘the government shouldn’t be able to force me to buy health care if I don’t want to.’ But that’s a very weak constitutional argument. There’s no such right in the constitution. And in fact, I think under post 1937 constitutional law, the Court would say, it’s reasonable for the government to believe that everyone’s going to need health care at some point in his or her life, vaccinations for children, people with communicable diseases have to be treated….”
I won’t get into the arguments why he’s wrong here, but it should be clear to anyone that Congress’s power to “regulate” commerce does not come with the power to mandate participation in commerce. That’s not a regulation of commerce—it’s a regulation of people. We would expect a constitution that allowed government control over even minute economic decisions of private individuals to look much different than the one we actually have.
But when asked whether this same government—and its broad, unquestionable power to regulate people’s activity for their own good and the good of the nation—could shut down WikiLeaks in the interest of national security, Chemerinsky suddenly changed his tune:
I don’t know what the outcome would be, but obviously that would raise huge First Amendment questions, and I think the burden would be on the government to show that there was material there that would cause great harm to national security. And I don’t know the answer to that question, but I think the reason why the Obama Administration has not gone down that path is enormous concern over the First Amendment.
How do we decide that when it comes to this issue, the government has the burden (and I agree that it does), but when it comes to regulating individuals’ decisions whether and how to engage in commerce, the government is not just authorized, there’s “not even a credible constitutional argument,” as Chemerinsky said, against its authorization?
It is extremely troubling how highly intelligent and effective liberal lawyers like Chemerinsky are able to move effortlessly between the written Constitution of 1787 and the written Bill of Rights of 1791, on the one hand, and the unwritten constitution of the 1930s and beyond, on the other. Following the Progressive Assault on the Constitution of the past 80 years, liberals and Progressives have devised a handy arsenal for themselves, giving them Constitutional language when it suits them, or case law when it doesn’t, in order to arrive at literally any outcome they desire.