Knowledge And Decisions

Though the Constitution was intended as a barrier against the concentration of power in the federal government, it has been construed by the Supreme Court in ways that facilitate such concentration. Despite the impartiality expected of the judiciary, the Supreme Court is itself an interested party in any case concerning the constitutional division of power, either between state and federal governments or among the executive, legislative, and judicial branches of the latter. Public opinion long stood as a barrier to judicial activism, and the “court-packing” threat of Franklin D. Roosevelt in the 1930s which forced the Court to retreat from “substantive due process” doctrines was evidence of the limits of political toleration and the Court’s reluctance to face a constitutional showdown. Less than twenty years later, however, the Supreme Court was launched on a course of judicial activism which made the earlier courts seem very tame — and there was no similar reaction of public opinion or political leaders. Attempts at restraining the Court or impeaching particular justices — Warren and Douglas being prime targets — were ridiculed for their futility. Partly this may have been due to the fact that the courts were, initially at least, moving with the currents of the time, especially in desegregation. Partly, too, it reflected the growing influence of political and legal “realism” about the impossibility of objective “interpretation” of the Constitution as distinguished from judicial policy-making. As in other contexts, “realism” here meant the acceptance of incremental defects as categorical precedents. A continuum between objective “interpretation” and subjective policy-making was arbitrarily dichotomized in such a way that everything fell on the subjective side. Having proven the impossibility of perfect universally objective and neutral interpretation, it was a short step to acceptance of a growing subjective component in what was increasingly regarded by even the Supreme Court’s friends and partisans as judicial policy-making. It was another triumph of the precisional fallacy, that because a line could not be precisely drawn, there were no decisive distinctions among any parts of the relevant continuum.

Whatever the mixture of reasons and their respective weights, the courts were no constitutional barrier to the concentration of power. In the jargon of the times, they were not part of the solution, but part of the problem.

Historic events also promoted the concentration of power. The Civil War and its racial aftermath, in the South especially, ranged many of the most conscientious people in the nation on the side of federal power against “states’ rights.” The principle of “states’ rights” was generally available only in a “package deal” with racial bigotry, cynical discrimination, and lynchings. In such a package, the principle had no chance of long-run-survival on its own merit vis-à-vis the principle of unrestrained federalism. But every decision increasing federal power at the expense of state power applies to all the states — not just the South — and reduces the states from autonomous power centers toward the status of administrative units of the national government. This is most apparent in federal-state joint programs, ranging from “revenue sharing” to specific “matching grants” or other Washington-financed and Washington-controlled activities in which federal money sustains state activities — contingent on state subordination of its decision-making discretion to federal “guidelines.” However, even in activities solely administered by the state or local government — public schools, for example — federal “guidelines” control not only the hiring of teachers and the placement of students but a host of other decisions down to such minute considerations as the number of cheerleaders for girls’ and boys’ athletic teams.⁷³ That the physical administration remains wholly in state and local hands in no way changes the fact that the decision making has moved to Washington. In this way the physical fallacy conceals an historic shift of power.