Marriage equality. Healthcare subsidies. Desegregated housing. Symbols of the Confederacy torn down. A President singing the melodies of slave songs on national television. All in all, a monumental week for equality and justice in the United States.
I’ve tried to pin down the significance of these many events together, and find a common theme in the progress the United States government definitively enforced as the law of the land. Two thousand fifteen is another 1787, 1865, 1919, 1954 or 1965: a sudden crystallization of social and political currents into a new image of freedom. The beauty of America is that each new vision of the state uses the palette provided by the Founders in framing their original work.
The norms of popular government have changed dramatically in the past three hundred years. The aristocratic rule of early republics were shaken by the mass politics of political parties, labor movements and the expansion of the franchise in the mid-19th century. Universal access to education spread around the same time. Governments created new income and inheritance taxes around the turn of the 20th century, funded public pensions and “social insurance” programs for the unemployed, the food insecure, vulnerable children and persons with disabilities. Old imperialist claims fell to nationalism, and multilateral institutions sprang up to promote peace, diplomacy and human rights.
The trend in the developed world has been for hundreds of years the liberalization and pluralization of society through law and policy. The United States’ changes through deliberate balance of powers which put protections on any act of popular will or private exercise of power. Our Madisonian government is conservative not in philosophy, but in construction. We have a strong judiciary, federalized states and frequent opportunities to “alter or abolish” a political regime by popular vote. Change happens, in the words of Earl Warren, “with all deliberate speed.”
Why, then, would a prominent columnist like George F. Will venture the following statement about this system?
“The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power. Such power would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.”
George Will somehow managed to link the upholding of the ACA’s federally-operated exchanges to FDR’s court-packing during the New Deal. He equates progress with dirigiste, and conversely conservatism with individual liberty. This conjured specter of the invasive state stands on fear and insecurity about an eroding political platform. More generally, Will mirrors the temerity of political figures who see all progressivism as an attack on the Constitution.
Stop the false dichotomy of social progress versus the Constitution. Stop raising the banner of judicial originalism as a shield against a changing world. Religious liberty, states’ rights, Confederate flags, local control and the other selectively-applied catchphrases used to defend a traditional view of social relations are becoming an increasingly frayed veil over the denial of democracy’s oldest promise now coming to fruition in the 21st-century.
The new family — begun in the 1960s with the sexual revolution and perhaps before — the social democracy born after WWII in Western Europe, the protection of group rights, these are all part of the next iteration of rights the state must protect. Our constitutional principles of liberty, equality, due process, equal protection and freedom from dependence are stretching to cover the entire country under this new generational “program” being installed across our capitols, statehouses and courthouses.
The progressive victories of the past week were not inevitable ten years ago, but the coalitions which created them made them so. Critics of the Supreme Court decisions this week would do well to recognize the Rubicon crossed today by a new American polity: a polity which embraces a more pluralized, rights-based state.