Turning the Clock Forward
If America returned to 1950s family values with obvious improvements (constitutional civil rights and reasonable environmental regulations), would we be turning the clock back or forward? There is substantial evidence that this would turn the clock forward, given society’s backward trend over the last sixty years –family breakdown, retreat from religion, and educational and moral malaise. When Attorney General William Barr spoke at the Notre Dame Law School, he attributed this decline primarily to the progressive movement.
Amy Wax and Larry Alexander argued for a return to 1950s values (the bourgeois culture that reigned from the 1940s to the mid-1960s) to mend America’s torn social fabric and disparate class gap:
That culture laid out the script we all were supposed to follow: Get married before you have children and strive to stay married for their sake. Get the education you need for gainful employment, work hard, and avoid idleness. Go the extra mile for your employer or client. Be a patriot, ready to serve the country. Be neighborly, civic-minded, and charitable. Avoid coarse language in public. Be respectful of authority. Eschew substance abuse and crime.
Wax and Alexander do not offer a path back to the script. Congress has no will to act, and the President cannot legislate. However, a revitalized federal court system, starting with the Supreme Court (“SCOTUS”), can lead the way. President Trump has moved the Court in the direction that would allow it to reverse past activism. Putting a strict constructionist in Justice Ginsburg’s seat is the precursor to another four years of Trump that would move the federal courts in this direction for decades to come.
This essay suggests ten key areas of change for SCOTUS, each of which could help turn America around. These changes might not contain all that needs to be done to restore the republic, but they would move us far down the path. These categories allow a cohesive, united country to emerge to solve our problems in an innovative process not possible under the current administrative state.
Category I. Taxation.
Legal scholar Richard Epstein argues that the Fifth Amendment – by mandating compensation for property seized for public use -- means that higher tax rates on different people constitute an illegal “taking.” Progressive taxes, therefore, are illegal. The alternative is a flat tax law that could be codified in a couple of hundred pages instead of the current 80,000 pages. It would be a tremendous stimulus to the economy – perhaps up to a 3% economic growth rate over time.
Category II. Federal Agencies and Regulations Revoked.
The Education Department could be a test case because education policy falls under state authority. The President could say that the Feds have no authority in education and withhold funding from the Education Department. If the Supreme Court agrees, this process could be repeated in numerous other cases. The President could issue an Executive Order defunding dozens of agencies that are not constitutionally authorized, leading to a scaled-back Federal government as initially designed.
Also, SCOTUS can declare Federal government regulations unconstitutional in many cases. Courts can fill in legislative gaps as they did before the rise of the administrative state. These regulatory rollbacks could generate as much as a 2% economic growth rate over time.
Since tens of thousands of state and local entities are tied to federal regulations hand and foot, the decline of the administrative state would free them as well.
Category III. Education.
Education vouchers should prevail throughout schools. This would free education, allowing schools, new and old, to thrive in a competitive environment.
Category IV. Religion.
SCOTUS should return prayer to public schools and the public square and allow governments to post the Ten Commandments. Religious freedom reigns both privately and publicly.
Category V. Equality.
SCOTUS's decisions should reflect that America is not a nation of warring tribes, that all citizens are created equal before the law, and that no one is more equal than another.
Category VI. Free Speech.
A decision should affirm that free speech is a civil right enforceable under the civil rights laws, making it illegal to enforce speech codes on campuses or elsewhere. The FBI can arrest those who impede free speech, those rioting against free speech, and those who foment violent action against free speech, including those who plan and fund such actions. The FBI may recommend prosecution to the DOJ’s Office of Civil Rights.
Category VII. Self-Esteem Decisions.
The abortion, homosexual marriage and transgender decisions were “self-esteem decisions.” Activist courts essentially said, “To improve your group self-esteem, we shall create a special right that’s not in the Constitution.” The Court should rethink these rulings, not only because abortion is abhorrent, marriage is a settled institution, and transgenders need mental health care, not legal approval, but because these decisions undermine the Constitution. SCOTUS should not operate by saying, “Anything goes, as long as you have the votes.”
Category VIII. Immigration.
SCOTUS should affirm that the President has broad powers under the law to restrict immigrant entry to the country, that petitioning to enter the country does not equal a right to citizenship, and that the President has broad powers to expel non-citizens from the country.
Category IX Second Amendment.
The Court must roll back gun control laws.
Category X. The Constitution.
The Court can use its bully pulpit to encourage everyone to read and understand the Constitution, something few Americans do. As more citizens appreciate its basic tenets, it will be more difficult to subvert. People will dismiss the notion of mandated equal outcomes in favor of constitutionally mandated equality of opportunity.
Will all these categories play out as suggested? Maybe not, but we can evaluate the concept of a realistic proposal in light of SCOTUS history. Would ordinary Americans have thought an activist Supreme Court’s decisions would be realistic?
If the Court acted on the above categories, over time, America would rediscover its “America The Beautiful” destiny. The DC swamp would become solid ground. Congressional vote value would plummet along with lobbyist salaries. Ideas would have to compete in a real marketplace of ideas. Education would thrive. Religion would be planted in fertile soil. We would be Americans, not a nation of warring tribes. Serious immigration problems would be reduced. The environment and the economy would be appropriately balanced. Free enterprise and untold innovation would emerge, leading America and the world to new heights. Western civilization would be robust. The clock would be set forward, and an enhanced version of American values would prevail to the great advantage of young and old.
The Supreme Court can be a positive or negative force. When it is in a “living constitution mode,” it is a dangerous oligarchy with the final say over everything, making it the most powerful institution in America.
Originalist orientation puts a brake on how far the judicial oligarchy can go, but we’re still left with a ruling oligarchy. The three branches of government are supposed to be equal. How can they be equal if one branch is Supreme? By shrinking government and limiting its reach, a strict constructionist Court can return the American government to its proper constitutional balance.
Christopher Garbacz is a former professor of economics with expertise in regulation. He has published extensively and reviews for academic journals. He served as an advisor to Ben Carson in his presidential campaign.