Ted Frier

Ted Frier
April 02
Ted Frier is an author and former political reporter turned speechwriter who at one time served as communications director for the Massachusetts Republican Party, helping Bill Weld become the first Bay State Republican in a generation to be elected Governor. He was Chief Speechwriter for Republican Governor Paul Cellucci and Lt. Governor Jane Swift. Ted is also the author of the hardly-read 1992 history "Time for a Change: The Return of the Republican Party in Massachusetts." So, why the current hostility to the Republican Party and what passes for conservatism today? The Republican Party was once a national governing party that looked out for the interests of the nation as a whole. Now it is the wholly-owned subsidiary of self interest. Conservatism once sought national unity to promote social peace and harmony. Now conservatism has devolved into a right wing mutation that uses divide and conquer tactics to promote the solidarity of certain social sub-groups united against the larger society while preserving the privileges of a few.


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APRIL 20, 2012 3:29PM

History Repeats Itself in New Gilded Age

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Just 55 well-to-do white guys wrote the US Constitution during that Philadelphia summer of 1787. And to hear the conservatives of the current Roberts Court tell it, the Founding Father's "original intent" was for  small groups of wealthy white guys to rule America ever since.

As we anxiously wait to see whether a Republican-dominated Supreme Court has the audacity to strike down the signature accomplishment of the elected Democratic branches and throw 30 million recently-insured Americans back on the street in what would almost certainly be a narrow 5-4 partisan decision, it's becoming increasingly obvious that in conservative eyes not all "judicial activism" is created equal.

Actions by the Supreme Court that advance personal freedom -- such as the rights of women to control their own bodies, or the rights of non-believers not to be proselytized to in public places, or the rights of criminal defendants to justice - are denounced by conservatives as assaults against The Natural Order of Things and subversive of both democracy and majority rule itself.

However, based on the behavior of these very same conservatives, judicial "activism" doesn't refer the actions of judges at all but rather to a state of non-conformance with the way conservatives think societies ought to be organized, with most power placed in just a few hands. And this is why conservatives don't look at their judicial power grabs as "activist" at all, but rather "restorative," in the same way Bush v. Gore wasn't "activist" because it restored Republicans to the White House or Citizens United wasn't "activist" because it restored plutocratic control to the American political process.

To wage class warfare you must first believe, as only conservatives do, that America is, and should always be, divided into separate and distinct classes, each with its own responsibilities and prerogatives.

That is why, says the Alliance for Justice, the Roberts Court "consistently pursues a political agenda that favors powerful corporate interests" while conservative Justices display a "striking willingness to engage in judicial activism to fulfill their ideological goals."

As they defend their timeless and "immutable principles" -- written in the very nature of the universe -- conservatives have also shown themselves to be uncommonly adaptive and flexible when it comes to inventing arguments out of whole cloth that advance their own self-interest.

Thus, ever since John Roberts became Chief Justice in 2005, the Alliance says the Supreme Court has "demonstrated an increased readiness to do whatever it takes to twist the law" in order to achieve the conservative movement's "decades-long campaign to elevate corporate profits and private wealth over individual rights and personal freedoms."

The severely right wing worldview that underlies the decisions of the Roberts Court fits loosely within a school of judicial thought known as "The Constitution in Exile," which Jeffrey Rosen in the New York Times defines as the belief that the entire social welfare and regulatory state in force since the New Deal "is unconstitutional as well as immoral."

Because the collapse of the capital markets in 2008 and those corporate scandals like Enron have provoked an important debate about the relative merits and dangers of the free market, while making chances of the political transformation conservatives seek seem "remote," Rosen says  conservatives now appear "content, even eager, to turn to the courts to win the victories that are eluding them in the political arena."

This has produced what Rosen calls the "troubling paradox" of conservatives denouncing liberals for using the courts to "thwart" the will of the people while "succumbing to precisely the same temptation" themselves.

George F. Will is a perfect exemplar of this type. You will not find a conservative more hostile to, or contemptuous of, "the right to privacy" supporting a woman's right to choose than George Will. And yet, in his column just this week Will defends the right of the rich "to be left alone" as he insists a "vast" portion of life should be "exempt from control by majorities." And when our democratic system does not "respect a capacious zone of private sovereignty," Will thinks the courts need to step in to "police that zone's borders."

Conservatives cringe whenever they hear Thomas Jefferson's words insisting that "all men are created equal," which is why conservatives have always made the distinction between the "revolutionary" Declaration and a "conservative" Constitution that brings institutional order out of revolutionary chaos.

And yet, here is the conservative George Will saying the Constitution is a "companion" of the Declaration in that the whole point of government is to "secure pre-existing rights" not to "confer" new ones -- which is all beautiful poetry intended to obscure the reactionary recipe Will is concocting for preserving rank and privilege against popular agitation and change.

All restoration fantasies have their Golden Ages, says Rosen. And for the Constitution in Exile movement, that fondly-remembered yesteryear is the dominance the Republican Party enjoyed from the Gilded Age through the Roaring Twenties when business-friendly courts "steadfastly preserved an ideal of free enterprise" by routinely striking down laws meant to protect workers from the ravages of the unregulated market.

It was here that Mitt Romney's idea of a public corporation as a "person" first took root as conservatives sought to fashion the 14th Amendment's due process protections into what economic historian Kevin Phillips called "a sword conservative judges could use to cut down state and federal legislation for 'unreasonably' interfering with property and contracts."

Indeed, says Phillips, while judicial decisions voiding laws as unconstitutional were few and far between before 1850, during the Gilded Age they became commonplace as business-controlled state courts between 1885 and 1899 struck down more than a thousand local laws meant to protect workers.

One of the most notorious judicial power grabs was 1895's Pollock v. Farmer's Loan and Trust Co. in which the US Supreme Court invalidated the federal income tax. To the man on the street, the question before the bar was whether "consumption should pay all the taxes of the federal government or whether investment and speculation should bear their fair share of public burdens," writes William Swindler in his Court and Constitution in the 20th Century.

The New York World called the Court's decision "a triumph of selfishness over patriotism and another victory for greed over need."

A former Oregon governor said the ruling signified that "our constitutional government has been supplanted by a judicial oligarchy."

The St. Louis Post-Dispatch editorialized that "the corporations and plutocrats are as securely entrenched in the Supreme Court as in the lower courts which they take such pains to control."

Speaking for the Court minority, Justice John Marshall Harlan - "the Great Dissenter," who gave us the idea of a "colorblind" Constitution in his dissent the following year in Plessy v. Ferguson  - said the Court's "disregard" for a century or more of history and practice "may well excite the gravest apprehensions" for it "strikes at the very foundations of national authority, in that it denies to the general government a power which is, or may at some time in a great emergency, such as that of war, become vital to the existence and preservation of the Union."

The late 1880s were a period of social unrest and class warfare - most of it provoked by the rich whose exploitations against the poor produced that great backlash known as the Progressive Movement.

And yet in the face of these mounting tensions, Harlan said the practical and direct effect of the Court's decision to invalidate a tax that had been in force since the Civil War "is to give certain kinds of property a position of favoritism and advantage that is inconsistent with the fundamental principles of our social organization -- and to invest them with power and influence that may be perilous to that portion of the American people upon whom rests the larger part of the burdens of government and who ought not to be subjugated to the domination of aggregated wealth any more than the property of the country should be at the mercy of the lawless."

So, how could it be that after more than a century of political, economic and legal evolution we have arrived right back where we started 100 years ago, with our political and legal branches once again beholden to -- and corrupted by -- plutocratic influences?

Well, to quote a famous American philosopher: "It's the economy stupid."

The late 1800s were a time very much like our own. A massive government jobs and stimulus program -- called The Civil War -- revolutionized the American economy and transformed a provincial agrarian society into a modern industrial one stitched together with government-subsidized transportation and communications networks.

During the 1870s and 1880s, the US economy expanded faster than ever before in the country's history, where between 1865 and 1898 the output of wheat increased 256%, corn 222%, coal 800% and railroad track mileage 567%.

Corporations - which are not "people" as Mitt Romney would have us believe but creatures of law and state -- became the dominant form of business organization.

And like any period of rapid economic change, new elites emerged to replace old ones, hardening into a new American plutocracy whose concentrated wealth helped elect a nearly unbroken succession of business-friendly Republican presidents.  

From Abraham Lincoln in 1861 until Howard Taft in 1912, the Republicans occupied the White House for more than half a century, interrupted only by the split terms of Bourbon Democrat Grover Cleveland, whose hard money economic policies made him a Republican In Everything But Name.

This, in turn, led to the appointment of conservative Supreme Court justices drawn mostly from the ranks of corporate and railroad legal practice, whose views on the superiority of capital over labor were reflected in the priority given by the courts of this era to capitalists, private property and freedom of contract.

Just like today.

Michael Lind, author of the new book, Land of Promise: An Economic History of the United States, argues that it often takes American politics, government and the law a generation or two to catch up with technology-induced economic change -- like the unchallenged power exercised by the Robber Barons of the Gilded Age.

Lind lists three such revolutions in recent American history: The first, based on steam, produced the railroad, steam-powered factory and telegraph. The second was built around the internal combustion engine. And the most recent is the one we are experiencing today, based on the information technology that Lind says is rapidly transforming the way we work and play.

Lind says that the changes wrought by the IT revolution in our own time are undermining the political and legal structures of the New Deal by creating a new kind of "global corporation" that draws heavily on labor and supply chains extending across many nations but regulated by none.

The misalignment between political and economic power can grow for decades, says Lind, until the abuses and exploitations the political system finds itself powerless to address explode in a cataclysm of long delayed reform, such as the Civil War and Reconstruction, the Progressive Movement and New Deal and, perhaps today, Occupy Wall Street.

Essential reforms today are being filibustered and delayed because conservatives "mindlessly cling to the half-century-old dogmas of right-wing opponents of the New Deal," says Lind.

And the reason they do, says New York Times economist Paul Krugman, is "soaring inequality."

The huge wage gaps that have opened over the past 30 years as incomes have tripled at the top while stagnating at the middle and bottom is at the root of both America's polarized politics and the country's inability to adequately respond to crisis, says Krugman.

Rising incomes at the top have created a New American Plutocracy that has warped the nation's intellectual and political life, says Krugman, as the super-rich have bought themselves a political party as insurance against the future -- like some kind of credit default swap.

As the wealthy become ever more aware of themselves as a distinctive and, in their own minds, embattled class, this disengaged plutocracy begins to exhibit all the classic defensive characteristics of a reactionary caste, whose inability to relate to those outside their charmed circle is perfectly manifested in Mitt Romney's wooden and socially inarticulate behavior around other human beings.

The widening gap between the parties, which is directly related to higher income inequality, is occurring because Republicans are moving far to the right not because Democrats are moving left. Krugman says we see this most obviously in the Republican proposals for health care reform that the President adopted as his own template for Obamacare only to see Republicans denounce their own ideas as Marxist-Leninist "Socialism!"

What all of this adds up to is that Republicans, and their appointees on the Supreme Court, are no longer engaged in the task of genuine governing but in the narrow protection of privilege at all cost.

We have no way of knowing for certain how the Roberts Court will rule on the constitutionality of Obamacare or its individual mandate.

But it's possible that the rigor mortis of class and caste thinking is so far advanced among the Court's reactionary majority that it might foolishly provoke what Justice Harlan cautioned his own colleagues against more than a century ago when he warned that by privileging power over people the Court's conservatives were inviting "a contest which in some countries has swept away, in a tempest of frenzy and passion, existing social organizations, and put in peril all that was dear to the friends of law and order."

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"to hear the conservatives of the current Roberts Court tell it, the Founding Father's "original intent" was for small groups of wealthy white guys to rule America ever since. "

Sad to say, I'm not sure that isn't exactly what the Founders intended, despite the high-blown rhetoric about "all men" which apparently didn't include women or Indians. They did have the grace to consider blacks "three-fifths" of a human being, altho they didn't grant them 3/5ths of a vote.

Not to be too hard on them -- they were products of their time, just as the writer of the Bible were products of theirs. That's no excuse for people of our time to consider the words of any of these men the inerrant truth. And those that do in the present age -- I'm looking at you Antonin -- have far more to answer for.
Wow, you got wound up here! Brilliant, I mean it. Judicial activism is always in the eye of the beholder. I won't guess how they'll rule either, but I'd guess it's an even bet that they'll strike the down the IM clause and attempt further gutting by an expansive ruling. It just feels sort of Citizens United in the run-up.
One more thing ... a previous transformative technology, movable type, led to a similar democratization of information. Marshall McLuhan referred to Man after the printing press as a different species: Gutenberg Man. I use the term Internet Man in a similar fashion; as someone said "When everyone is on the Internet that will be God."
You’re right about the activist Lochner era court striking down state and local laws for being in violation of some bogus reading of the Fourteenth Amendment’s “due process” clause. That clause has nothing to do with enforcing libertarian economic principles upon the states.

But you’re wrong in your assumption that the Fourteenth Amendment forbids the states from enacting abortion laws. The “due process” clause had nothing to do with abortion, contraception, homosexual sodomy, gun rights, flag burning rights, prayer in school, or the right to rape a child and not suffer the death penalty, any more than economic regulations. So when it comes to rewriting the Constitution to mean something the people never intended it to mean, the modern court is just as “activist” as the laissez faire court.

The Income Tax Case was filled with a lot of philosophical dicta from both sides with little legal argument, but its outcome was correct—the income tax was a direct tax not equally apportioned among the states.

Your claim about the Civil War being some sort of “economic stimulus” shows that you are unfamiliar with the “broken window fallacy.”

You are right about the Fourteenth Amendment not having anything to do with corporations. Yet corporations, for centuries at common law, have been treated as “persons,” that is, they can buy and sell real and personal property, make and enforce contracts, and sue and be sued, just like an individual. So in that respect, Mitt is right.

You are correct to note the economic boom of the second half of the 19th century. Production boomed, real wages increased, society became richer. Yet it's strange how this happened without the SEC, FDIC, NLRB. . .etc., or Keynesian economics in general.

I don’t think the Roberts court is the bogeyman you think. Congress can pretty much legislate in any area it wants, contrary to the original intent, and it will still get the rubber stamp of the court. The President can still exercise enormous amounts of power never intended to be granted to him, all with the blessings of the court. The “incorporation doctrine” and “substantive due process” are endorsed by the court. Child rapists can rape children without having to suffer from state capital punishment statutes, thanks to the Roberts court. And state gay marriage laws will undoubtedly be struck down by the Roberts court. In other words, nonoriginalists should be content.
linds thesis is dead-bullseye-on. I argued the same in my blog over various posts-- globalization is largely a consequence/feature of info technology, and its lead to frankensteinian monster corps, TNCs/MNCs, trans/multinatl corps, that defy national laws. and yes, precisely-- it can take an entire generation to chg the gears/direction of govt. and globalization has not really led to corresponding benefits for the masses. there has been some decrease in prices and improvement in products ie mainly electronics, but its not really worth the staggering cost in mass reduced wages and job cuts. so globalization has turned out to be the "great sham/scam/farce/lie".... essay of the same title in my blog.
by the way your story about the democrats being blameless, I just dont buy it. theyve seriously contributed to the problem mainly/largely by being spineless "enablers". they are somewhere near as compromised to corporate interests at this point ... however due to history and the inertia of old branding, the public is slow to catch on to this.
Thanks everyone for your comments -- and for having the patience to wade through my 2,000 plus word tome!

Tom -- I suspect you are right about the Founders elitism. Like the upper crust everywhere they feared the mob. What made them different is that they also feared themselves and what they might do with too much power. And so under the pressure to make a bargain with the masses that would still keep lots of power in elite hands they created an imperfect system of checks and balances in order to achieve what Aristotle talks about in his Politics, a stable society in which a broad middle-class interposes itself between the very rich and the very poor in order to keep these classes from tearing one another apart.

Steve -- Thank you for those kind comments, and you are right: activism is in the eyes of the beholder. Liberals I think instinctively recoil from attacking the Court because it puts us in league with those like Tom Delay who don't want judges who interpret the law not make the law but rather do as they are told by Southern populist demagogues like them. My very liberal law school dean uncle rarely criticizes the Court on legal grounds since at that level he says competing political worldviews are in play as the Court really does "follow the election returns" as someone once said. But I think you put your finger on the main issue by raising Citizens United: generally speaking, liberal judicial activism works in a democratic direction by emancipating individuals from past social and legal constraints while empowering a government that is itself independently accountable through elections, while conservative judicial activism empowers an unaccountable upper class and, in the name of "freedom," emancipates it from democracy itself, thus undermining popular government.

Larry -- you make a number of very interesting points, but let me briefly address one: the treatment of corporations as "persons" under the law. Everything you say about the ability of limited liability corporations to do what real people can do in the marketplace is correct since that is why there are laws of incorporation in the first place: to allow individuals to pool their resources and accomplish collectively what they could not achieve singularly. What the Roberts Court has done is give those corporate "persons" political rights in addition to the traditional economic rights they've always known -- free speech and campaign donation rights for example -- that lets them flex their muscle in an entirely different sphere.

And vzn -- I look forw
Vzn -- My comment was interrupted in mid-sentence by some software ghost. What I was going to say is that I look forward to reading your essay but you misunderstand me if you think I hold Democrats harmless in this mess.

Democrats have been enablers in every way you say. It is one thing to believe that bipartisanship and compromise are good things essential to the maintenance of a democratic republic. It is another thing to become ones antagonist, as Neo-liberals, or New Democrats or Third Way Democrats or Triangulating Democrats or whatever you want to call them too often did when they reached out to embrace Republican and conservative positions in such a way that Democrats forgot who they really were and what they stood for.

My only point is the one lots of people have made: When you look at political polarization today it is not as if the two parties are moving away from some imagined and idealized political center at equal speed. Republicans are clearly a different party from what they were even 20 years ago. I know. I was one. But Democrats are not.

Ask a Democrat to define "far right" and they can clearly identify someone like Rand Paul who thinks the 1964 Civil Rights Act was a bad thing because it made civil and human rights superior to the property rights of white restaurant owners who Paul thinks ought to be able to discriminate against anyone they choose. Ask a Republican to define "far left" and you are likely to hear about someone who supports ideas and policies that have been part of the American mainstream for nearly a century or more, such as the protections of the New Deal. Conservative answers, in other words, say a lot more about their own radicalism than the ersatz "radicalism" of liberals they are meant to attack.
I have no doubt the Roberts Court wants to return to Gilded Age rulings, whether you want to compare it to that or not. It's just as accurate to call it the arbitrary application of an ideology that is an assault on liberty in general by granting property/wealth a superior "liberty."

In that it's that toxic combination of traditional -- not American -- conservatism and right-libertarian "state of nature" laissez faire freedom of wealth. It's nothing less than a defeated American Revolution and the resurrection of a wealthy aristocratic nobility, whose corporate privation of the formerly Citizen Sovereign can be rationalized as Rights of Personhood and/or Freedom of Contract.
As to the addition of the traditional State Religion, the 'conservatarian" return to feudalism is more about pandering to the Churches than empowering them. So, it's not quite the same thing. It's a rejiggered feudalism. Monarch as CEO and cartel; the aristocracy simply the lower echelon CEO/cartel oligarchs-in-waiting.

You can't get a more perfect description of a dysfunctional dystopia than can be extracted from a combination of conservatism and libertarianism. The inside joke of libertarianism is the root word being "liberty" when the outcome is anything but for the majority of people. While American conservatism was once about preserving a version of federalism and our liberal institutions, it's now about dictating away The People's federal and state sovereignty when it's convenient to do so and turning the institutions into name-only facades.

The worst thing about the conservative-libertarian assault on our liberty is the true reason it's being done is vanity. Corrupted ideologues clinging to a toxic ideology like a pit bull on a bone. It also pays well, as can be expected of an ideology that equates wealth and power. Because both concepts ignore empiricism and function, they can never produce a functional society. This is why America has become dysfunctional and a failed state in every sense of the term except the part where we acknowledge that to be true.

The New Deal "disease" was far more healthy than the toxic conservative-libertarian "cure."
Good points, Paul,

I couldn't agree more with your point about some new American feudalism. That is the Old South influence on the GOP and conservative movement. The antebellum South was a feudal society in all but name, a class-based system dominated by a plantation nobility who fought a civil war to protect their privileges rather than surrender to the democratizing elements shaping the country. Slavery defined this culture even if it was not narrowly the cause of the cultural war between democracy and feudalism directly. The power of the Catholic Church in this feudal society I addressed in another post when I talked about the Catholic preference for hierarchy and paternalism that has influenced the Supreme Court's Catholic majority in rulings like Citizens United that empowers religious plutocracy.

As for the dysfunction at the core of the GOP, I agree. The problem for the Republican Party is structural. The ideological nature of the Republican base makes the GOP incapable of governing or giving adequate leeway to those who can since to govern is to compromise and choose. Right wing Republicans can only win when they are able to exploit the fears and suffering of low-information voters by successfully blaming Democrats for conditions that Republicans themselves have mostly created. That is not a sustainable strategy for long-term political success or even survival since it is based on a lie and is totally reliant on accident and chance.
hi ted thx for response. alas a lot of this feels like "inside baseball". the overall system looks dysfunctional to me. the only political figure of this generation I admire [that I can think off offhand] is assange for his courage and sheer cajones. it stuns me how much bush-cheney reoriented the govt into security paranoia in significantly less than 8 years. ps I just saw the scifi movie "in time" with timberlake/seyfried & thought it very cool in the way it futurized inequality into a pop culture vehicle. thoughtprovoking & well written. it deteriorated a little into a robin hood/gangster movie in the end, but had some cool themes you might enjoy.
your writing kind of seems like "the horse has left the barn". meticulous detail of the dysfunction. my question is, whats the solution? politics need to focus on new directions & new solutions.
Tom Cordle: I'd like to remind you, apropos of God and the Internet, that the Classic God is a lot like a Super-Gestapo., "1984" in spades.
Civil War. Great Depression. WWII. I'm thinking the Crash of 2007 will take its place alongside these other calamities when it is all said and done. A real paradigm shift that. Exacerbated by technology and income inequality perhaps the fuse has already been lit.
Thank you for this brilliantly argued treatise on the state of affairs in our beloved United States of America. You've hit on so many truths here. How can we get this to the working-class folks in Middle America who have bought into the notion that the GOP works for them? R.
The Supreme Court is doing its part towards moving us closer to the United States of Honduras (with a military-industrial complex).
Great article and interesting bio. Thanks much.