Extended Phenotype

In my previous post in this series, I examined the premises that lay behind the conservative/libertarian “small government” vision. That vision has proved quite potent as a rallying point for conservative attacks against New Deal liberalism. Surrounding the core vision, iconic metaphors related to heroic self-reliance and personal responsibility help provide a consistent worldview (see George Lakoff’s Moral Politics) and thus the “values” so prized in conservative political discourse.

I finished the last post by claiming that the “small government” vision is a mirage — a philosophy which rests upon several fallacies. First among these fallacies is the apparent conflict between “negative” rights and “positive” entitlements. This dichotomy creates a cleavage point between an apparent “true” tradition of liberal natural rights, and a “false” and illiberal addition of entitlements, and allows modern conservatives to claim to be the heirs of the true Founding liberal tradition, and depict the New Deal as a regrettable (and unconstitutional) expansion of state power to create the modern regulatory welfare state. Not only is the dichotomy false (as amply documented by Holmes and Sunstein in The Cost of Rights), but it rests upon a second, more damaging fallacy.

The culture war continues this week, with conservative groups urging a boycott of Proctor & Gamble products because they allegedly “support gay marriage.” The facts of the case are these: the City of Cincinatti has an issue on the ballot this November to repeal a 1993 city charter amendment which forbids the city to enact or enforce laws based on sexual orientation. The 1993 charter amendment (Article XII) forbids the city from taking into account sexual orientation in any claim of “minority or protected status, quota preference or other preferential treatment.”

In other words, Article XII prevents gays and lesbians from petitioning city government for protection against discrimination — in housing, hiring and firing decisions, and so on. Cincinnati is the only city in the U.S., apparently, with such a ban in their city code. The movement to repeal Article XII is motivated by numerous factors; naturally, the gay and lesbian community itself is irate about their basic civil rights and equality; the business community believes that businesses are losing revenue and encountering difficulty recruiting new employees. In addition to Proctor & Gamble, the Mayor, Vice Mayor, 6 city council members, the Chamber of Commerce, 18 business leaders, several dozen religious leaders, unions, General Electric, and the Union Central Life Insurance Company believe it should be repealed. And despite evidence that this is a broad-based, bi-partisan, business & community supported effort, the religious right “thought police” have become involved.

Following the thread from two previous posts, it’s worth looking at the possibility that Democrats still have such a vision, and what vision conservatives offer in return.  In his original post on Balkinization, Mark Tushnet stated — without much elaboration — that the Democratic constitutional vision was "something like equal dignity and respect."  There’s a sense in which this is correct.  It’s not hard to trace this vision back to FDR; the following is from the "Four Freedoms" speech of 1941:

Just as our national policy in internal affairs has been based upon a decent respect for the rights and the dignity of all of our fellow men within our gates, so our national policy in foreign affairs has been based on a decent respect for the rights and the dignity of all nations, large and small.

Originally, of course, Roosevelt was concerned to secure equal dignity through redress of economic privation, in the wake of the Depression.  Civil rights and racial equality were still issues for the future.  National opinion would begin to place racial and gender issues on the "equal dignity and respect" agenda starting in the 1950’s and continuing throughout the 1960’s, while retaining (in the Great Society programs of Johnson) the economic dignity legacy of the New Deal.  As Cass Sunstein documents in his new book, Roosevelt’s "Second Bill of Rights" came close to defacto recognition by the Court prior to the Nixon appointments in the early 1970’s. 

Since then, Democrats seem not to have lost the earlier vision but have instead have been playing defense.  Since 1970, Democrats have controlled the White House for only 12 out of 34 years.   Only two of the sitting Court were nominated by Democrats (although several Justices nominated by Republicans now form part of the Court’s "liberal/moderate" minority).  And majority control over Congress has rested with Republicans for the majority of the period since 1980.  The liberal "vision" has lost ground ever since; both real ground in the form of legislative cutback and judicial erosion, and steady decline in public opinion.  I need not belabor the point — excellent sources exist for analysis of the tactics by which Democrats and liberals came to be the minority force in national politics.

Far more interesting, I believe, is the opposing constitutional vision (or visions) which find so much support among conservatives:  limited or "small government" as the "original" and desired state of government.   If Democrats want to understand how to stop defending, and start building again, the weaknesses in the conservative constitutional argument are the place to start.