The Supreme Court, in a moment of unusual clarity, ruled last week that the equal protection clause of the 14th Amendment did not prohibit states from requiring public universities to treat applicants of different races equally. Or, in other words, equal protection is not opposed to (14th Amendment) equal protection. It is a powerful testimony to the Orwellian nature of our legal world that such a question arose in the first place and that two Justices could be found to dissent from the ruling.
The full name of the original plaintiff, however, reveals much: “Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary.” Applied to the universe of domestic policy questions, “Fight for Equality By Any Means Necessary” captures well the essence of contemporary Progressivism. In fact, one might say it is the essence of Progressivism, period. Early Progressive intellectuals recognized that it would be impossible to achieve their goals by such pedestrian means as equal protection and the rule of law. Hence Herbert Croly argued:
The state which proposes to draw a ring around the conflicting interests of its citizens and interfere only on behalf of a fair fight will be obliged to interfere constantly and will never accomplish its purpose. In economic warfare, the fighting can never be fair for long, and it is the business of the state to see that its own friends are victorious. It holds, if you please, itself a hand in the game.
For the last five years, the Obama Administration has given this approach substance by arbitrarily rewriting its favored laws and refusing to enforce the ones it doesn’t like; by ignoring the faults of some businesses and imagining faults in others; by fast-tracking some projects and interminably delaying others. Along the way, it has continued the massive expansion of federal power that has also made “by any means necessary” the operative doctrine of Progressive constitutional interpretation (see the individual mandate “tax”).
Such an approach is by no means necessary, given all we know about the original intent of the Constitution. The Federalist, among other things, provides us with an excellent commentary on the range of powers granted to the national government–authored by two members of the Convention that framed it who then led the pro-Constitution parties in arguably the two most important ratifying conventions (Hamilton in New York and Madison in Virginia). The heart of this commentary is in Federalist essays 41-44, where Madison reviews those powers category by category, clause by clause.
Madison begins Federalist 41 with a general defense of the delegated powers. He argues that opponents of the Constitution have unfairly criticized it by not considering “how far these powers were necessary means of attaining a necessary end.”
The difference between Publius and the Progressives on this point is fundamental–and captured in their respective uses of the term “necessary.” Progressives employ any necessary means to an unnecessary, indeed impossible, end–and, as Croly admits more than most, when they say “any” they mean pretty much any. Madison’s necessary means, meanwhile, were constrained by his necessary ends. A government tasked with protecting the natural rights of all could not justify rigging the political game or otherwise undermining equal protection and the rule of law. Nevertheless, maligning the framers as usurpers-in-waiting, the most demagogic anti-federalists seemed more interested in imagining how federal office holders would abuse their power than reflecting upon the powers needed to secure the rights and independence of the American people.
Madison did not deny that “inconveniences” were “unavoidably blended with all political advantages.” But he contended that it is wrong to think that every governmental activity per se must necessarily tend to self-interested activity and personal advantage. Here Madison echoes Aristotle in promoting a sober politics that still strives for the best that is possible:
“. . . cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment.”
For Madison, it was wrong to make the perfect the enemy of the good, especially if one possessed the capacity to align the proper use of power with the public good: to adopt republican means to serve republican ends. By clearly stating, reviewing, and rightly judging the powers conferred upon the federal government in the proposed Constitution, one could assess whether each power granted rightly tended to a necessary object or, conversely, encouraged corrupt political activity. His list of powers granted, closely connected to the preamble’s list of fundamental purposes for the Constitution, was simple and straight-forward:
- Security against foreign danger;
- Regulation of the intercourse with foreign nations;
- Maintenance of harmony and proper intercourse among the States;
- Certain miscellaneous objects of general utility;
- Restraint of the States from certain injurious acts;
- Provisions for giving due efficacy to all these powers.
All of these objects required specific powers–like ‘declaring war,’ ‘providing armies and fleets,’ ‘regulating and calling forth the militia,’ ‘borrowing money’–that no right-minded student of American history and politics could deny were necessary for securing the young nation against domestic and foreign foes. Moreover, all the principal ends of the Constitution had been anticipated by the Articles of Confederation so that the extension of federal power in the Constitution amounted to a necessary correction in means rather than an invention of new and dangerous ends.
Madison argues, in sum, that political affairs will always involve the use (and abuse) of power, but that to maximize the good and minimize the bad such power should be limited to what is necessary for necessary purposes, well-defined, and accountably-administered. Move beyond these markers and you enter a boundless field for “by any means necessary” politics.
The Progressive project, of course, has added many items to Madison’s (the Constitution’s) list of federal powers. The modern welfare and administrative state is simply nowhere to be found in the text of the Constitution by any fair reading of its original language. Fashioned whole cloth from extra-constitutional material, the powers that support it are necessarily undefined, except in so far as their extreme outer boundaries are determined by the sometimes permeable constitutional limits (like the Bill of Rights) on all federal power. We’ll have occasion to note the consequences of this over the next several weeks as we consider Federalist essays 42-44.
But the Progressive effort to ensure that its “own friends win” has corrupted even the powers clearly included in the Constitution. Next month, former IRS official Lois Lerner, who was responsible for leading the Internal Revenue Services’ tax-exempt division, will face a contempt vote by the United States House of Representatives for her unwillingness to testify before the House Oversight and Government Reform Committee on her agency’s handling of applications by conservative non-profits.
This year-long saga has shown us the danger of developing a hyper-complex federal tax code that empowers federal agents to use discretionary power to benefit friends and punish enemies. Whatever revenue the government needs can be collected by means that meet Madison’s criteria. But Progressive “economic warfare” requires more. The abuses within the tax-exempt division of the IRS are the predictable, logical outcome of placing Progressive means in the service of Progressive ends. Preventing them, then, requires more than a contempt vote; it requires the restoration of republican means and ends–by any republican means necessary.
David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter or Facebook.
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