an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The party of big government versus the party of big government
As a follow up to Andy's last post, it's worth noting that, some sixty years after the New Deal revolution, although Democrats and Republicans are deeply ideologically divided on how to structure the stimulus package, the Republicans in Congress are not arguing that the Democratic plans are unconstitutional. Indeed, the Republican alternative-- tax cuts and spending on a different set of programs-- presumes the basic constitutionality of many of the devices used in the New Deal and the Administrative and Welfare State.
Even so, this does not mean that the fight over the stimulus has no constitutional overtones. In a larger sense, the fight between Democrats and Republicans really is constitutional in nature. That is because it is a fight over how government should grow. In this fight, the Democrats are the party of big government and the Republicans, by contrast, are the part of big government. Small government conservatism is an excellent slogan, but it corresponds neither to contemporary realities nor to the actual policies of either party. None of the Republican presidents since the New Deal have really limited the size of government; all have presided over its increase, and in some cases (Nixon and Bush), the growth of government has been quite remarkable.
In saying this I do not wish to suggest that the growth of government under liberal Democratic leadership has been unproblematic, but rather to point to a general trend in technologies of governance that has been shared by both parties. Indeed, one can say that since the New Deal the expansion of government has been as American as apple pie, no matter who is in charge. If that is so, we might want to look past ideological disagreement as an explanation.
Despite the Republican rhetoric of small government, the actual Republican political hegemony of the past three decades has not really been directed to reducing the size of government. Rather, it has been about lowering taxes, especially taxes for large businesses, limiting government regulatory oversight, especially for large businesses, and increasing subsidies and government expenditures on subjects that Republicans have sought to subsidize, including, among other things, various business interests and the defense industries.
The Nixon Administration consolidated and expanded the Welfare State; the Reagan Administration ran enormous deficits; and the George W. Bush Administration converted a federal surplus into enormous deficits while creating new bureaucracies in education, health care, and Homeland Security and helping to construct the national surveillance state. While it was doing all this, it also expended about a trillion dollars on an ill-advised war in Iraq. Ironically, its particularly poor stewardship of big government has created an emergency that will probably lead to even more government.
You might think that an anti-tax and anti-regulatory philosophy necessarily means smaller government. But it does not, and indeed, the Bush Administration has shown us how to grow government while simultaneously reducing taxes and crippling regulatory oversight.
The problem with this model of big government/low taxes/limited regulation and government oversight is that it wastes lots of money, exacerbates social inequality, doesn't provide particularly good government services, exacerbates problems of corruption, and, in certain cases, can help precipitate a financial meltdown. Other than that, it's fine, I guess. Posted
by JB [link]