The Fight for the Supreme Court–the Fight for America’s Future.

Narration: While still the greatest power in the world, America now has a significantly larger government, sits on an ever-growing debt, and has become a more divided nation. What happened?

Roger Pilon: The great watershed that has given us modern leviathan, the modern redistributive and regulatory welfare state, came out of the ideas of the Progressive Era at the end of the 19th century and in the early decades of the 20th century.

Narration: These changes can be traced back to a shift in the Supreme Court, in which President Franklin D. Roosevelt played a primary role.

Roger Pilon: His threaten to pack the Supreme Court with six new members so that he could have a court of his own making.

Simone Gao: Are you opposing only the way in which they in in fact changed the Constitution, or do you believe the Constitution should be treated as it is, not like a living document?

Roger Pilon: I am both opposing the way it was done, which was illegitimate. It could have been done legitimately through amending the Constitution under Article V, but I’m also opposing what was done.

Narration: Are America’s founding principles relevant today, and will returning to them make America great again?

Title: The Fight for the Supreme Court–the Fight for America’s Future

Simone Gao: Welcome to Zooming In, I’m Simone Gao. The fight over the confirmation of Justice Brett Kavanaugh is over. But everyone knows the next fight will be just as fierce. It is not about who is more credible, the accuser or the accused; it is not about the #MeToo movement; it is not even so much about the due process. The country is fighting over something much bigger. It is about a supreme court that is used to bypassing Congress to get its own legislative victories. It is about whether to clear the path for an ever more redistributive and regulatory government or to go back to an America our Founding Fathers envisioned, and it is eventually about whether the founding principles of this country can facilitate humanity’s ultimate purpose. I start this conversation with Dr. Roger Pilon. He is the Cato Institute’s vice president for legal affairs and the founding director of Cato’s Robert A. Levy Center for Constitutional Studies.

Part 1: An Ever-Expanding Government

Narration: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”—The Declaration of Independence

Narration: When America’s Founding Fathers declared these principles in 1776, the idea was simple: The government should protect man’s natural rights, and it should be limited.

Narration: The Constitution and the Bill of Rights that were drafted later put these principles to practice, and America has thrived. For a good portion of its existence, America has been the most powerful country on the planet, and it still is. But one aspect of today’s American government has changed drastically—its size.

Narration: From the 1920s to the 1930s, before President Franklin D. Roosevelt, the federal budget was less than today’s equivalent of $45 Billion. Now that number is $4 Trillion.

Narration: The federal government spent $16 per person in 1800, $27 per person in 1850, and $109 per person in 1900. Then came another significant increase. It was up to $1,544 per person in 1950, $4,760 per person in 1990, and $12,803 in 2018.

Narration: According to the Bureau of Labor Statistics, the federal government employs more people than the country’s entire manufacturing sector.

Narration: In 2017, Social Security, Medicare, and Medicaid combined was estimated to occupy 13 percent of Gross Domestic Production that year.

Narration: The list goes on.

Simone Gao: No doubt, the American government has become much more powerful. Dr. Pilon, who publishes the Cato Supreme Court Review, claims that America has entered into a post-constitutional state. Much of what the Supreme Court and Congress do is unconstitutional. Views of the Constitution and its role in government started changing at the end of the 19th century.

Roger Pilon: The great watershed that has given us modern leviathan, the modern redistributive and regulatory welfare state, came out of the ideas of the Progressive Era at the end of the 19th century and in the early decades of the 20th century. The progressives fundamentally rejected the original understanding of the Constitution. They wanted much larger government. They were social engineers. They were looking to European models of good government: Germany’s Bismarck’s social security scheme, for example. They were looking to British utilitarianism. They wanted to bring about change through statutes; whereas, earlier, individual relationships, one person to another, were ordered, for the most part, by common law principles of liberty, property, and contract—judge-made law, stemming from cases that arose when people brought complaints against their neighbor or against firms or against the government in some cases. And judges would have to adjudicate those complaints. Now under the progressives, they sought to bring about change through statutes. As I said, they were social engineers. In the early decades of the 20th century, the courts, for the most part, rejected those efforts, not entirely, but to a large extent.

Narration: Things changed drastically after President Franklin D. Roosevelt took office in 1933. America was deep in the Great Depression. In response, FDR and liberal democrats launched the New Deal between 1933-1936. It was a series of programs, public works projects, financial reforms, and regulations that included both laws passed by Congress as well as presidential executive orders during FDR’s first term.

Narration: The programs focused on what historians refer to as the “3 Rs”: relief for the unemployed and poor, recovery of the economy back to normal levels, and reform of the financial system to prevent a repeat depression. The New Deal included new constraints and safeguards on the banking industry and efforts to re-inflate the economy after prices had fallen sharply. Conservatives opposed the New Deal as hostile to business and economic development.

Simone Gao: The New Deal was first rejected by the Supreme Court but got pushed through later. What happened to this process? Here is Dr. Pilon again.

Roger Pilon: During the first four years of President Franklin Roosevelt’s term, when the Supreme Court found one program after another that he had introduced through Congress to be unconstitutional, either because it exceeded the powers of Congress or because it violated the rights of individuals. In 1937, early in that year, he unveiled his infamous court-packing scheme, his threaten to pack the Supreme Court with six new members so that he could have a court of his own making. Well, there was uproar in the country over that. It seemed to be an attack on the very rule of law. Nevertheless, the Court got the message, and it began rewriting the Constitution without benefit of Constitutional amendment. And it did it in three main steps: First of all, it eviscerated, got rid of, the fundamental principle under the Constitution, namely, the doctrine of enumerated powers, the idea that Congress has only 18 enumerated powers or ends that are authorized to it. You find that spelled out implicitly in the very first sentence of the Constitution. You see it explicitly spelled out in the 10th Amendment, the last documentary evidence from the Founding period, which reads, “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.” So the first thing the New Deal Court did in 1937, was get rid of that principle. And that opened the floodgates to the modern redistributive and regulatory state.

Roger Pilon: Then a year later, in 1938, the Court bifurcated the Bill of Rights and bifurcated the theory of judicial review. In other words, it distinguished two kinds of rights: fundamental rights and non-fundamental rights and two levels of judicial review. The effect was to reduce economic liberty to a second class status, which, in other words, enabled the Congress—and the states for that matter—to engage in much more regulatory and redistributive lawmaking. And finally, in 1943, the Court jettisoned the nondelegation doctrine. That’s the doctrine that comes, again, from the first sentence of the Constitution after the preamble, which reads: “All legislative power herein granted shall be vested in a Congress.” Not some, but all. What the Court did with that phrase was enable Congress to delegate ever more of its lawmaking power to the administrative agencies it had been, and would continue to be, creating. The some-450 —no one knows how many there are—such agencies of the executive branch that exist in Washington today. That’s where, today, most of the law that we live under is enacted, by rules, regulations, guidance, and so forth, passed by the IRS, the Internal Revenue service; the HHS, the Health and Human Services agency; the Federal Communications Commission; the Federal Trade Commission. I could go on and on with these very extensive executive branch agencies. And so that’s the origin of the modern executive state. And that’s how it was that we effectively—or rather the Court—effectively, after being browbeaten by Roosevelt, turned the Constitution on its head from an original document that authorized limited government to a document that authorized, effectively, unlimited government.

Roger Pilon: And so many of us, especially here at the Cato Institute, are of the view that this was a fundamentally illegitimate way to go about changing things in our system. The way to change them properly is this way that the Civil War amendments were—the way it was done under the Civil War amendments, by amending the Constitution, not by doing it through judicial ledger domain or sleight of hand.

Narration: Coming up, should the Constitution be treated as a living document that evolves and adapts to new circumstances without being formally amended?

Part 2:A Living Document or Literal Interpretation?

Simone Gao: Dr. Pilon believes that the Supreme Court has unconstitutionally delegated Congress legislating power to the executive branch, thus creating an ever-growing government. Does he only oppose the way the Supreme Court went about the delegation of power? Here is Dr. Pilon again.

Simone Gao: Are you opposing only the way in which they in effect changed the Constitution, or do you believe the Constitution should be treated as it is, not like a living document?

Roger Pilon: I am both opposing the way it was done, which was illegitimate. It could have been done legitimately through amending the Constitution under Article V, but I’m also opposing what was done. Because what was done was to open the floodgates to the modern leviathan. And that has brought about all manner of problems. It’s no accident that the Founders gave us limited government. They read history. They understood that democracy can be almost as dangerous, and in some cases more dangerous, than rule under the king or under some authoritarian regime because democracy has, as such, an air of legitimacy about it. But you’re also faced with the problem of the tyranny of the majority, at best. But today it’s not only majorities that tyrannize minorities, it is also special interests, far more often. Because they’re more able to work the system than transient majorities are able to do. And so when the Founders created limited government, they did so because they understood that a fundamental purpose of the Constitution is to discipline not only the rulers but the ruled, the people themselves. Today, unfortunately, we have a large part of the population that demands more goods and services from government than they’re willing to pay for. The result is that we have today a debt that exceeds 20 and a half trillion dollars. And it’s growing, and nobody knows how to stop it. And that doesn’t count the vastly greater unfunded liabilities that are held by the federal government and by state and local and municipal governments. After all, recently Detroit went bankrupt. Puerto Rico has gone bankrupt. A number of smaller cities have gone bankrupt. The state of Illinois has a bond rating just above junk status. New Jersey and Connecticut are not far behind that. And so, when you open the floodgates to, effectively, unlimited government, when you remove the discipline that a Constitution is meant to impose on both the government and the people, this is what you get. And that’s why I’m opposed, not simply to the way this was done, but to what was done as well. Because we, in effect, ignore the lessons from the Founders, and we did so and do so at our peril, as the evidence increasingly is showing.

Simone Gao: So, in your opinion, is the overarching philosophy behind this push for a more redistributive and regulatory government fundamentally in conflict with the spirit of the founding principles of this country?

Roger Pilon: Absolutely. The Founders, the founding generation, and subsequent generations, for about 150 years understood and, to a large extent, lived by these principles that were implicit and often explicit in the Constitution, in our founding documents, especially after the Civil War amendments were added. And, in fact, we have examples of people in the Congress rising from the floor to oppose a given welfare bill because, as for example, Madison said in 1794, when he was faced with such a bill: “I cannot undertake to lay my finger on that passage of the Constitution that authorizes us to expand the money of the taxpayers on this particular proposal.” One hundred years after the Constitution was written, in 1887, President Cleveland vetoed a bill. And in his veto message, he said: “I can find no authorization for this expenditure under the Constitution.” Notice, they were making a point of principle. They weren’t saying, oh, it would be good for us to do this. They were saying whether or not it would be good for us to do it, we don’t have the authority to do it. Now, contrast that with Franklin Roosevelt in 1935, writing to the chairman of the House Ways and Means Committee as follows: “I hope you will not allow any reservations about the Constitutionality of this bill, however well founded, to stand in the way of its passage.” Contrast that with a comment by Rexford Tugwell, one of the principal architects of the New Deal programs, reflecting on his work some 30 years later, and I quote, “In order to get our programs through, we had to engage in tortured interpretations of a document that was intended to prevent them.” They knew exactly what they were doing. They were turning the Constitution on its head. It was captured—the attitude was captured, perhaps most succinctly, by Hamilton Fish Sr. early in the 20th century when he said, “What’s the Constitution among friends?” And so, yes. There was a great deal of disrespect for the Constitution. Woodrow Wilson, when he was president, saw the Constitution as a straitjacket. He thought that—he wanted to have greater power than was authorized to him under the Constitution. And so he urged reading the Constitution as allowing him much more authority than had been understood for our first 120 years, by that point in time, up till then.

Narration: Coming up, Dr. Pilon believes neither liberals or conservatives have stayed faithful to the Constitution. Stay tuned to find out why.

Part 3:Neither Liberals or Conservatives Stayed Faithful to the Constitution

Simone Gao: This is a passage from one of your articles recently: “’The Vote on Brett Kavanaugh Won’t Solve America’s Deeper Supreme Court Problems’ Thus, we now have two jurisprudential schools. Liberals urging judicial activism to promote evolving liberal values; conservatives urging judicial restraint, making peace, essentially, with the New Deal Court’s deference to the political branches.” This is very interesting. Are you saying neither party in today’s America has stayed faithful to the constitution?

Roger Pilon: The Constitutional revolution of 1937 through 1943 led, eventually, to two fundamentally different approaches to constitutional interpretation: one liberal, the other conservative, in the American context. Both schools are wrong. And I’ll explain why, but I have to go into a little bit of the history to do so. After the supreme court was brow-beaten into taking those three steps that I mentioned earlier, it’s posture was essentially deferential to the political branches. It said to the Congress and the executive branch, and to the states as well: Go ahead and regulate and redistribute at will, we will check you only if you violate certain fundamental rights as we understand them to be. So this deferential policy of the court essentially stepping out of the way and allowing government to grow topsy-turvy continued for about another 15 years or so. But around the mid-1950s and through the 60s, 70s, and thereafter, the court its second wind. The Warren Court, the court of Earl Warren, the Burger Court, and later the Rehnquist court to a lesser extent, started becoming more active. By that I mean that the Warren Court, in an effort to address the civil rights movement, which had been growing for some years, in 1994 handed down the Brown v. Board of education decision which overturned the 1986 decision of Plessy v. Ferguson which gave us the “separate but equal” doctrine. In the 1954 Brown decision, the court rejected that doctrine, and that began the effort to desegregate so much that was segregated in the south under so-called “Jim Crow” laws.

The court did not stop there however, it went on to find a number of rights that were nowhere to be found, either among our explicit rights in the Bill of Rights or under our unenumerated rights pursuant to the Ninth Amendment. And so, that led to a conservative backlash, conservatives, especially with the abortion decision of 1973, Roe v. Wade, thought the court had gone too far in enforcing what the liberals on the court thought were evolving social values. This was not for the court to do, conservatives said, this was for democratic legislators to determine, not the court. The court they saw as being composed of judges that were invoking their own social values and imposing on majorities at the state and federal level.

And so you had two schools of thought. And here’s the way they broke down. I’ll divide it between powers and rights. With respect to powers, both of them accepted the end, the demise of the doctrine of enumerated powers, which the Court had eviscerated in 1937. Conservatives, because they thought it a lost cause; liberals because they liked government with all this expanded power. Where the two schools differed was on the rights side. The liberals were enforcing rights episodically, the liberals on the Court were enforcing rights episodically, namely finding rights that were nowhere there to be found while ignoring or disparaging rights like property rights, contract rights, economic liberty that were plainly there to be protected under the Constitution. By contrast, fearing that kind of liberal judicial activism, conservatives on the Court urged the Court to enforce rights that were only—only those rights that were expressly in the Constitution, thereby ignoring the rights that were meant to be protected under the Ninth Amendment, which reads “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Notice: “retained by the people.” You can’t retain what you don’t first have to be retained. The Ninth Amendment was alluding to the vast sea of natural rights that we have, essentially, rights to be free. And so you had both schools that, as I said earlier, were wrong. They were wrong on the power side, and they were wrong on the rights side.

Simone Gao: There is a third option. According to Dr. Pilon, that is the libertarian approach, which would restore the Madisonian vision of the Constitution as completed by the Civil War amendments. In other words, reviving the doctrine of enumerated powers on the powers side, limiting Congress to its enumerated powers; and on the rights side, enforcing both enumerated and unenumerated rights. What controversy might stem from that approach? And what else will the fight for America’s future entail? We’ll explore these questions in the next episode of “Zooming In.”  Make sure to search for us online: “Zooming In with Simone Gao.” Thanks for watching. See you next time.