What we now consider stupid and dangerous ideas of the past, progressives see as useful in the present.
By Victor Davis Hanson for American Greatness
Even liberal historians usually label as disastrous two decisions by the Franklin D. Roosevelt Administration: the adoption of the Earl Warren-McClatchy newspaper inspired plan to intern Japanese-American citizens and the Judicial Procedures Reform Bill of 1937—better known as FDR “court-packing scheme.”
The latter was a crazy scheme to remake the Supreme Court, given that Roosevelt wanted no more judicial interference in the implementation of the New Deal. And yet he had no recourse until slow-coach judicial retirements opened up new appointments of compliant progressive justices. In the interim, the convoluted proposal would have allowed Roosevelt to select a new—and additional justice—to the Supreme Court for every sitting judge who had reached 70 years, 6 months, and had not retired. And in theory, he could pack on 6 more judges, creating a 15-member court with a progressive majority.
The embarrassing plan properly died.
But progressives once again are advocating something like it, now that they fear Trump’s second Supreme Court nominee might cement a 5-4 hard conservative majority—and with a possible third appointment opening up in the next 30 months. Democrats nonchalantly talk of the Kennedy slot as a “swing” vote, which in these supposedly dark times must for now be institutionalized.
They are without any self-reflection that they never entertained any such notion that a Democrat-selected justice might “evolve,” “mature,” or “grow” into becoming a swing Kennedy-like apostate from Left, much less that a Kagan or Sotomayor would ever evolve into a right-wing mirror image version of a Justice Brennan, Souter, Stevens, or Warren.
There are three unspoken premises here: one, only conservative appointed judges should by any logic flip, at least those bright and ethical enough finally to see the light. Liberal appointees, already bright and ethical, would not dare.
Two, any means necessary is justified to achieve noble ends. In this case, a method to progressive victory justifies resurrecting one of the most harebrained, unethical and impractical ploys that FDR ever thought up.
Three, progressives see the court as an arm of the progressive movement that can enact social justice otherwise impossible either through referenda or their elected representatives. They see it as their own private domain (better even than the social fiat power of the armed forces) and essential to checking the ignorance of the irredeemables and deplorables.
Another crazy idea from the past was state nullification of federal laws by carving out spaces exempt from Washington’s control. Democrats tried it and failed in the South Carolina nullification crisis of 1832-33, when they sought to render void federal tariff laws.
Later, the soon-to-be Confederate States were more serious, and in 1861 bragged that federal law no longer applied to them, as federal property within their confines was appropriated by the states.
The nihilistic idea of nullification helped spark the Civil War. The few times the lethal gambit was repeated—we all remember George Wallace in 1963 standing in the door of the University of Alabama, defying federally ordered integration—it was usually smashed, given its ultimate logic was the replacement of America by the Founders’ nightmare of weak, feuding, and warring antithetical sovereign nations.
Yet 19th-century nullification is the font of the current “sanctuary city” law adopted by nearly 500 American cities that declare federal immigration statutes null and void within their jurisdictions. No matter that such liberal cities would have been the first to call insurrectionary any conservative city that declared federally protected abortion rights, gun laws or the endangered species act impotent within their city limits.
How strange that the entire “liberal” concept of nullifying federal immigration law rest on illiberal legacies that either sought to or actually did start a civil war.
Resegregation on the Rise
Another dark tradition from America’s past was the institutionalization of segregated spaces on the logic that the victims of discrimination did not deserve the protection of their freedoms under the Constitution, given their supposed innate odiousness. Yet once again the progressive Left has returned to its roots for inspiration and implemented an entire array of discriminatory practices. Special landscapes on campuses where particular races cannot enter are called “safe” rather than “segregated” spaces. Entry is entirely predicated on outward appearance—although how one’s genealogy is assessed ad hoc poses the same challenges as it once did for the racists of the Old South who came up with the ‘one-drop’ rule.
Campus dorms are now routinely segregated by race, at least sort of, given that a white “theme” house would be properly declared racist and shut down.
We have learned that restaurants and businesses once again have the capricious right to refuse service to anyone whose politics are deemed bothersome to management. Segregation and discrimination are now upheld as noble methodologies in service of leftist (and, therefore, obviously noble) ends. Of course, any restaurant that three years ago had refused to serve Eric Holder, Ben Rhodes, or Samantha Power would have faced court-ordered cease-and-desist orders and huge fines.
Again, the common liberal theme to such illiberality is exemption by virtue of superior virtue.
In fact, the Left has resurrected an entire host of once discredited ideas from the nation’s past that reveal the new illiberal progressive ethos and remind us why those practices were odious in the first place. A new drive to limit free speech is underway, not just on campuses but also on social media. The effort is almost entirely progressive-driven and based on the assumption that what people sometimes say and think does not contribute to a progressive narrative, especially when it is more logical and persuasive than the efforts of the censors.
In 2016, there was an attempt to subvert the Electoral College. Celebrities and politicos ran ads and begged and threatened electors to renounce their constitutional duties and vote in the opposite fashion of their respective states’ popular votes. Progressives apparently either were ignorant of past “corrupt bargains” in U.S. election history, or knew them well enough to remember that in some instances they had indeed subverted the election outcome and thus could be useful in nullifying the Trump victory.
Why do supposed liberals keep revisiting discredited illiberal practices from the nation’s past?
In a reductionist sense, the answers are power and the reminder that progressivism is illiberal. The progressive dilemma now is how to regain control that seems to be slipping away, given disenchanted popular opinion.
More cynically, in the short-term a court-packing scheme might work. FDR’s problem in progressive eyes was not his crackpot idea, but his inability to push it through the Congress.
Nullification has indeed resulted in an emasculation of immigration law and helped redefine even criminal illegal aliens as victims of unfair federal intrusions rather than perpetrators of often violent crime.
Safe spaces empower the entire identity politics movement and bully anyone who sees a naked racist emperor arrayed in progressive robes.
Barring entry to a customer, or forcing her to leave the premises intimidates opponents and sends a message: obey or don’t eat, gas up, or stay overnight. For a time, such discrimination worked in the South and elsewhere in ostracizing opponents and reformers, and for the present moment it apparently is seen as valuable in bullying Trump supporters into retreating into the shadows and finding underground safe establishments.
Corrupt election bargains of all sorts on rare occasions worked in the past and Trump’s election is certainly seen as a rare occasion when such electioneering might prove useful again.
The common themes in all these schemes are innate to progressivism. To survive and spread, exalted righteousness always excuses tawdry methods, given the supposed ignorance and gullibility of the unenlightened.
Short-term expediency is well worth the goal of regaining power. Any smell from low tactics later can be perfumed away—once power is back in the correct hands.
There is no such thing as a bad precedent that others less progressive, in Corcyraeanor French Revolution fashion, might one day find useful in retaliation—given that the past is a mere construct that can be continually refashioned. Today’s rhetoric can easily redefine yesterday’s reality. Filibusters can be bad, then good, and soon bad again as the anointed need dictates, just like limits on speech and ideological or racial segregation.
We are in bad times, with much worse to come.