Recent events in the housing and financial sectors prompted me to reread Crisis and Leviathan by Robert Higgs. Higgs shows how throughout American history crisis has served as a catalyst or excuse for government growth and how, once the crisis ends, government does not return to its previous size. Higgs devotes considerable time to examining the Depression and New Deal. His thesis is vindicated as Roosevelt comes into office with sweeping legislative changes and issues 200 executive orders on an emergency basis in his first year in office. Rereading Higgs’ account of the Depression was sobering, but it also offered hope because as glum as things may be, we are not yet in circumstances as calamitous as the Depression, economically or politically. But if we are to avoid a similar fate, we must heed the lessons of that time.
Two lessons are most pertinent to the Institute for Justice: one comes from the courts and the other comes from public opinion. Those of you who have read The Dirty Dozen—a book co-authored by IJ board member Bob Levy and me on the 12 worst modern decisions of the U.S. Supreme Court—will recall that the New Deal was possible only because the High Court upheld key New Deal programs and in doing so effectively amended the Constitution. The Court gutted the Contracts Clause (allowing government to abrogate contracts at will), expanded the reach of federal economic regulation into the most-local of activities, ratified massive redistribution of wealth, and relegated economic liberty and property rights to second-class status under the Constitution. True to Higgs’ thesis, those powers never subsided; indeed, they grew and endure today. If the current crisis worsens, we can expect courts at all levels to be called upon to ratify even more sweeping assertions of government power.
Right now it seems that the majority of the public has accepted the government’s intervention through the recent Emergency Economic Stabilization Act. But the skepticism and lack of enthusiasm that greeted it attest to the fact that we have not yet gotten to the point where people reflexively or instinctively call for more government.
That could change.
We hear daily the drumbeat of claims that capitalism is dead and the free market discredited, that this crisis arose from deregulation and that salvation lies in reregulation. The question now is whether this narrative will take hold and become pervasive conventional wisdom.
Courts are not immune to public opinion. Indeed, the U.S. Supreme Court ultimately upheld the New Deal only after two swing justices permanently and aggressively voted with the liberal bloc. In many scholars’ opinion that change was attributable to the two swing justices’ reaction to the public sentiment expressed in Roosevelt’s landslide re-election in 1936. When reaction to public opinion goes that far, we have a sea change that becomes institutionalized, which is just what happened with the New Deal. As noted constitutional scholar Edward Corwin observed, “The change which the views of a dominant section of the American people underwent between 1929-1937 was nothing short of revolutionary and it was accompanied in due course by a corresponding change in attitude toward constitutional values.”
If the narrative that is being told about the cause of the financial crisis and the need for activist government takes hold, and if it spreads beyond the financial markets, our nation and way of life will be permanently transformed. Sadly, there are plenty of organizations and individuals who advocate such change.
This is where IJ comes in. We offer a counter-narrative. I don’t mean just another story, anecdote or version of events. I mean a cultural and constitutional narrative that plays out consistently and compellingly in each of our cases and in the media and activism that flow from them.
There is a reason we win cases, and it is not just because we have excellent lawyers. There is a reason we consistently get favorable media, and it’s not just because we have an outstanding media team. Each case is part of a larger narrative that confirms what people, deep down, know or want to believe about America: ours is a nation of good people trying to live peaceful, productive lives. We are a people whose courage and hard work—not government—make success possible and reaffirm the values we hold dear. And for us, government too often is the problem not the solution.
We must spread this counter-narrative ever more effectively across the nation. More than ever, we will have to make courts want to rule for our clients. We will have to make the public root for our side to win. We will have to show how the principle in one case embodies a vital principle in a much larger context. And using our time-tested approach, that is just what we will do.
As you read about the clients featured in this and future issues of Liberty & Law, ask yourself what it would mean, in the midst of today’s rising statist tide, if these voices were not heard, if these stories were not told and woven together, if these battles were not fought. Where else will we hear such a counter-narrative?
In the coming months, IJ will do its part to keep the current crisis from creating a Leviathan that grows unchecked. It will require harder work than ever before. But the magnitude of the task is in itself a call to action. We thank each of you for answering that call with us.
Chip Mellor is IJ’s president and general counsel.