One more lesson from the Gilded Age, and, since I’ve now finished Richard White’s The Republic for Which It Stands, this will be the last.
This is not so much a parallel to our own age, but a warning of what we may have to come, assuming we survive the present state of affairs.
Toward the end of the Gilded Age, the previous “liberal consensus” (remember, back then a liberal was equivalent to today’s right winger) began to break down. The idea that each man (women didn’t count, remember) controlled his own destiny, and that his success or failure was practically a matter of choice on his part, could no longer be defended in an age of rapidly increasing inequality and unequal bargaining power resulting from increasing industrialization and monopolistic control of important sectors of the economy. Legislatures started passing laws to regulate the behavior of corporations. For instance, laws were passed mandating the number of hours a person could work in a day and outlawing child labor, just to name a few.
But while the legislatures were coming around, these laws ran into another branch of government, still dominated by those old fashioned liberals. The courts used the 14th Amendment, which had been designed to protect the rights of human beings, particularly freed slaves, to invalidate laws of this sort on the grounds that they deprived either the corporation or the individuals involved of property rights. It need hardly be said that at the same time they refused to use the Amendment for its intended purpose. There was little, if any, rational foundation for the court’s actions, which were often based on concepts of “natural law” and “substantive due process”, which had no basis in the constitution at all. It’s fair to say that while the national consensus turned progressive (i.e., today’s liberal) the courts frustrated that consensus until well into the nineteen thirties.
We can see the beginnings of the same thing now. The Supreme court’s decisions a few years ago overturning Second Amendment precedent and the Citizen’s Uniteddecision are two examples, as is the recent decision ruling that workers can be forced into individual arbitration, not to mention the upcoming decisionin the Januscase, that will effectively destroy public sector unions everywhere they have not already been destroyed. Should the Democrats regain control of the presidency and Congress, and should they finally come to their senses and realize that half measures designed to attract “moderate” Republican support gain them neither “moderate” Republican support nor public support, any efforts they make to enact progressive legislation will no doubt be frustrated by the courts using ever more intellectually dishonest rationales. The courts are political institutions, and they have now been well stocked with doctrinaire Randians who see it as their solemn duty to comfort the comfortable and afflict the afflicted. Bear in mind that the only remedy for judicial lawlessness is impeachment (not going to happen) and constitutional amendments (also not going to happen).
Of course, this is subject to a number of contingencies. Ruth Bader Ginsburg may live another couple of years, and she may be replaced by a progressive judge. That still leaves us with a 5-4 minority, but there is always the possibility that in one way or another, one of the horrible five will retire or be imprisoned, and the Democrats will be in a position to force a pick through (and will have the gumption to do so, in the face of hypocritical Republican claims that the filibuster is sacrosanct). That will still leave us with a judiciary somewhat progressive at the very top, but thoroughly rotten at all other levels. And that’s the best case scenario. All a modern court would have to do is revive some of the ridiculous legal precedents of the Gilded Age, and any attempt made by modern day progressives to end the plutocracy/kleptocracy under which we now live will be frustrated for years to come.
