Turning the Clock Forward
If America returned to 1950s family values with obvious improvements (constitutional civil rights and reasonable environmental regulations), would we be turning the clock back or forward? There is substantial evidence that this would turn the clock forward, given society’s backward trend over the last sixty years –family breakdown, retreat from religion, and educational and moral malaise. When Attorney General William Barr spoke at the Notre Dame Law School, he attributed this decline primarily to the progressive movement.
Amy Wax and Larry Alexander argued for a return to 1950s values (the bourgeois culture that reigned from the 1940s to the mid-1960s) to mend America’s torn social fabric and disparate class gap:
That culture laid out the script we all were supposed to follow: Get married before you have children and strive to stay married for their sake. Get the education you need for gainful employment, work hard, and avoid idleness. Go the extra mile for your employer or client. Be a patriot, ready to serve the country. Be neighborly, civic-minded, and charitable. Avoid coarse language in public. Be respectful of authority. Eschew substance abuse and crime.
Wax and Alexander do not offer a path back to the script. Congress has no will to act, and the President cannot legislate. However, a revitalized federal court system, starting with the Supreme Court (“SCOTUS”), can lead the way. President Trump has moved the Court in the direction that would allow it to reverse past activism. Putting a strict constructionist in Justice Ginsburg’s seat is the precursor to another four years of Trump that would move the federal courts in this direction for decades to come.
This essay suggests ten key areas of change for SCOTUS, each of which could help turn America around. These changes might not contain all that needs to be done to restore the republic, but they would move us far down the path. These categories allow a cohesive, united country to emerge to solve our problems in an innovative process not possible under the current administrative state.
Category I. Taxation.
Legal scholar Richard Epstein argues that the Fifth Amendment – by mandating compensation for property seized for public use — means that higher tax rates on different people constitute an illegal “taking.” Progressive taxes, therefore, are illegal. The alternative is a flat tax law that could be codified in a couple of hundred pages instead of the current 80,000 pages. It would be a tremendous stimulus to the economy – perhaps up to a 3% economic growth rate over time.
Category II. Federal Agencies and Regulations Revoked.
The Education Department could be a test case because education policy falls under state authority. The President could say that the Feds have no authority in education and withhold funding from the Education Department. If the Supreme Court agrees, this process could be repeated in numerous other cases. The President could issue an Executive Order defunding dozens of agencies that are not constitutionally authorized, leading to a scaled-back Federal government as initially designed.
Also, SCOTUS can declare Federal government regulations unconstitutional in many cases. Courts can fill in legislative gaps as they did before the rise of the administrative state. These regulatory rollbacks could generate as much as a 2% economic growth rate over time.
Since tens of thousands of state and local entities are tied to federal regulations hand and foot, the decline of the administrative state would free them as well.
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