While still the greatest power in the world, America now has a significantly larger government, sits on an ever-growing debt, and has become a more divided nation. What happened?
Roger Pilon: “The great watershed that has given us modern leviathan, the modern redistributive and regulatory welfare state, came out of the ideas of the Progressive Era at the end of the 19th century and in the early decades of the 20th century. ”
These changes can be traced back to a shift in the Supreme Court, in which President Franklin D. Roosevelt played a primary role.
Roger Pilon:“ His threaten to pack the Supreme Court with six new members so that he could have a court of his own making.”
萧茗（Host/Simone Gao）：“ 您只是反对那么做的方式，反对他们改变《宪法》的方式吗？还是您从本质上认为《宪法》就是《宪法》，不能被当作一个动态文件来对待？”
Simone Gao: “Are you opposing only the way in which they changed the Constitution, or do you believe the Constitution should be treated as it is, not like a living document?”
Roger Pilon: “I am both opposing the way it was done, which was illegitimate. It could have been done legitimately through amending the Constitution under Article V, but I’m also opposing what was done. ”
Are America’s founding principles relevant today, and will returning to them make America great again?
萧茗（Host/Simone Gao）：欢迎来到《世事关心》，我是萧茗。最高法院大法官提名之战尘埃落定，卡瓦诺正式成为最高法院大法官。但人人皆知，下一场提名之战将同样激烈。这场博弈无关乎控辩双方谁可信，无关乎Metoo运动，甚至无关乎程序正当性，这个国家双方所争关系甚巨。一个党在议会实现不了的、在最高法院却可以实现。如果民主党上位，会实施更多政府主导的再分配与更多政府监管；如果共和党上位，美国有望回归建国之父所构想的美国。问题的根本在于，美国的立国之本，是否还能激发人们努力去实现生命的意义。我采访了Roger Pilon博士。他是卡托研究所分管法律事务的副所长，也是研究所下属Robert A. Levy宪法研究中心的创办人。
“ Welcome to Zooming In, I am Simone Gao. The fight over the confirmation of Justice Brett Kavanaugh is over. But everyone knows the next fight will be just as fierce. It is not about who is more credible, the accuser or the accused; it is not about the #MeToo movement; it is not even so much about the due process. The country is fighting over something much bigger. It is about a Supreme Court that is used to bypassing Congress to get its own legislative victories; It is about whether to clear the path for an ever more redistributive and regulatory government or to go back to an America our Founding Fathers envisioned; and it is eventually about whether the founding principles of this country can facilitate humanity’s ultimate purpose. I start this conversation with Dr. Roger Pilon. He is the Cato Institute’s vice president for legal affairs and the founding director of Cato’s Robert A. Levy Center for Constitutional Studies. ”
An Ever-Expanding Government
The Declaration of Independence ：
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
When America’s Founding Fathers declared these principles in 1776, the idea was simple: The government should protect man’s natural rights, and it should be limited.
The Constitution and the Bill of Rights that were drafted later put these principles to practice, and America has thrived. For a good portion of its existence, America has been the most powerful country on the planet, and it still is. But one aspect of today’s American government has changed drastically—— its size.
From the 1920s to the 1930s, before President Franklin D. Roosevelt, the federal budget was less than today’s equivalent of $45 Billion. Now that number is $4 Trillion.
The federal government spent $16 per person in 1800, $27 per person in 1850, and $109 per person in 1900. Then came another significant increase. It was up to $1,544 per person in 1950, $4,760 per person in 1990, and $12,803 in 2018.
According to the Bureau of Labor Statistics, the federal government employs more than the country’s entire manufacturing sector .
In 2017, Social Security, Medicare, and Medicaid combined was estimated to cost $2.657 Trillion (2,657 Billion), which occupy 13% of Gross Domestic Production that year. The list goes on.
No doubt, the American government has become much more powerful. Dr. Pilon, who publishes the Cato Supreme Court Review, claims that America has entered into a post-constitutional state. Much of what the Supreme Court and Congress do is unconstitutional. Views of the Constitution and its role in government started changing at the end of the 19th century.
Roger Pilon: “The great watershed that has given us modern leviathan, the modern redistributive and regulatory welfare state, came out of the ideas of the Progressive Era at the end of the 19th century and in the early decades of the 20th century. The progressives fundamentally rejected the original understanding of the Constitution. They wanted much larger government. They were social engineers. They were looking to European models of good government: Germany’s Bismarck’s social security scheme, for example. They were looking to British utilitarianism. They wanted to bring about change through statutes; whereas, earlier, individual relationships, one person to another, were ordered, for the most part, by common law principles of liberty, property, and contract – judge-made law, stemming from cases that arose when people brought complaints against their neighbor or against firms or against the government in some cases. And judges would have to adjudicate those complaints. Now under the progressives, they sought to bring about change through statutes. As I said, they were social engineers. In the early decades of the 20th century, the courts, for the most part, rejected those efforts, not entirely, but to a large extent.”
Things changed drastically after President Franklin D. Roosevelt took office in 1933. America was deep in the Great Depression. In response, FDR and liberal democrats launched the New Deal between 1933-1936. It was a series of programs, public works projects, financial reforms and regulations that included both laws passed by Congress as well as presidential executive orders during FDR’s first term.
The programs focused on what historians refer to as the “3 Rs": relief for the unemployed and poor, recovery of the economy back to normal levels, and reform of the financial system to prevent a repeat depression. The New Deal included new constraints and safeguards on the banking industry and efforts to re-inflate the economy after prices had fallen sharply. onservatives opposed the New Deal as hostile to business and economic development.
The New Deal was first rejected by the Supreme Court but got pushed through later. What happened to this process? Here is Dr. Pilon again.
Roger Pilon（卡托研究所副所长/分管法律）：“在‘新经济政策’时期，尤其是富兰克林·罗斯福任期的头4年，他操纵国会通过的法案被最高法院一个接一个地宣布违宪，不是由于法案逾越了国会的授权范围，就是侵犯了个人权利。1937年早些时候，他公布了他的臭名昭著的最高法院改革法案。他威胁要为最高法院增加6名法官，这样他就可以控制最高法院。结果举国反对，这看起来像是对法制的攻击，但是最高法院屈从了罗斯福，它开始在没有宪法修正案的情况下重写宪法。他们通过3个主要步骤来做：首先，他们移除了宪法的基本原则，也就是列举权原则。宪法规定国会只有18项权利，这隐含在宪法的第一句里， 在宪法第十修正案里写的也很明白。它是这么说的：宪法没有赋予合众国的权力，也没有明文禁止合众国拥有的权力，则属于各州，或是属于人民。 所以在新政时期的最高法院，于1937年首先废除了这个原则。这开启了走向现代收入再分配和管制型福利政府的大门。一年之后的1938年，最高法院拆分了《权利法案》，拆分了司法复核理论。换句话说，他们把权利区分为两种：基本权利和非基本权利，把司法复核分成两个等级。结果是把经济自由降到第二等，也就是允许国会和其它部门搞更多的管制和财富再分配，最后在1943年，最高法院剔除了不授权原则。这也是宪法前言之后的第一句，这么说的：‘宪法赋予的立法权由国会所有’，不是一些，而是全部。最高法院的做法是，允许国会将更多的立法权下放给行政机构，那些国会不停设立的机构。大概450个，没有人确切知道到底有多少个，这种机构、行政机构，遍布华盛顿。那些机构制定了绝大多数与我们的生活相关的法律、规定、规则、指导原则什么的。比如国税局、健康和社会服务局、联邦通讯委员会、联邦贸易委员会，我可以说出一大堆这种执行机构来，所以这就是现代的管制型政府的来历。这就是我们，应该说是最高法院，被罗斯福政府欺压了之后，把一部对政府有限授权的宪法歪曲成了对政府无限授权的宪法。我们中的很多人，尤其是卡托研究所里的人，认为这种改变我们政治体制的做法是根本上非法的。正确的改变方法，应该按宪法内战修正案规定的那样（13，14， 15修正案）， 通过修改宪法带来改变，而不是通过司法诡辩和耍花招的方式。”
Roger Pilon: “During the New Deal, and in particular, during the first four years of President Franklin Roosevelt’s term when the Supreme Court found one program after another that he had introduced through Congress to be unconstitutional, either because it exceeded the powers of Congress or because it violated the rights of individuals. In 1937, early in that year, he unveiled his infamous court-packing scheme, his threaten to pack the Supreme Court with six new members so that he could have a court of his own making. Well, there was uproar in the country over that. It seemed to be an attack on the very rule of law. Nevertheless, the Court got the message, and it began rewriting the Constitution without benefit of Constitutional amendment. And it did it in three main steps: First of all, it eviscerated, got rid of, the fundamental principle under the Constitution, namely, the doctrine of enumerated powers, the idea that Congress has only 18 enumerated powers or ends that are authorized to it. You find that spelled out implicitly in the very first sentence of the Constitution. You see it explicitly spelled out in the 10th Amendment, the last documentary evidence from the Founding period, which reads, ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ So the first thing the New Deal Court did in 1937 was get rid of that principle. And that opened the floodgates to the modern redistributive and regulatory state. Its lawmaking power to the administrative agencies it had been, and would continue to be, creating. The some-450 – no one knows how many there are — such agencies of the executive branch that exist in Washington today. That’s where, today, most of the law that we live under is enacted, by rules, regulations, guidance, and so forth, passed by the IRS, the Internal Revenue service; the HHS, the Health and Human Services agency; the Federal Communications Commission; the Federal Trade Commission. I could go on and on with these very extensive executive branch agencies. And so that’s the origin of the modern executive state. And that’s how it was that we effectively – or rather the Court – effectively, after being browbeaten by Roosevelt, turned the Constitution on its head from an original document that authorized limited government to a document that authorized, effectively, unlimited government.
And so many of us, especially here at the Cato Institute, are of the view that this was a fundamentally illegitimate way to go about changing things in our system. The way to change them properly is this way that the Civil War amendments were – the way it was done under the Civil War amendments, by amending the Constitution, not by doing it through judicial ledger domain or sleight of hand.”
Coming up, should the Constitution be treated as a living document that evolves and adapts to new circumstances without being formally amended?
A Living Document or Literal Interpretation
Dr. Pilon believes that the Supreme Court has unconstitutionally delegated Congress’ legislating power to the executive branch, thus creating an ever-growing government. Does he only oppose the way the Supreme Court went about this delegation of power? Here is Dr. Pilon again.
Are you opposing only the way in which they in effect, changed the Constitution, or do you believe the Constitution should be treated as it is, not like a living document?
“I am both opposing the way it was done, which was illegitimate. It could have been done legitimately through amending the Constitution under Article V, but I’m also opposing what was done. Because what was done was to open the floodgates to the modern leviathan. And that has brought about all manner of problems. It’s no accident that the Founders gave us limited government. They read history. They understood that democracy can be almost as dangerous, and in some cases more dangerous, than rule under the king or under some authoritarian regime because democracy has, as such, an air of legitimacy about it. But you’re also faced with the problem of the tyranny of the majority, at best. But today it’s not only majorities that tyrannize minorities, it is also special interests, far more often. Because they’re more able to work the system than transient majorities are able to do. And so when the Founders created limited government, they did so because they understood that a fundamental purpose of the Constitution is to discipline not only the governed – excuse me. Not only the rulers but the ruled, the people themselves. Today, unfortunately, we have a large part of the population that demands more goods and services from government than they’re willing to pay for. The result is that we have today a debt that exceeds 20 and a half trillion dollars. And it’s growing, and nobody knows how to stop it. And that doesn’t count the vastly greater unfunded liabilities that are held by the federal government and by state and local and municipal governments. After all, recently Detroit went bankrupt. Puerto Rico has gone bankrupt. A number of smaller cities have gone bankrupt. The state of Illinois has a bond rating just above junk status. New Jersey and Connecticut are not far behind that. And so, when you open the floodgates to, effectively, unlimited government, when you remove the discipline that a Constitution is meant to impose on both the government and the people, this is what you get. And that’s why I’m opposed, not simply to the way this was done, but to what was done as well. Because we, in effect, ignore the lessons from the Founders, and we did so and do so at our peril, as the evidence increasingly is showing.”
“Is the overarching philosophy behind this push for a more redistributive and regulatory government fundamentally in conflict with the spirit of the founding principles of this country?”
Roger Pilon（卡托研究所副所长/分管法律）：“缔造美国的先辈们，他们那一代人，还有之后的几代人，在大约150年的时间内，是很理解《宪法》、立国文件中暗示的、很多时候明示的这些原则的，并且在很大程度上身体力行，在内战后《民权修正案》加进去之后更是如此。事实上，国会中已经有人挺身而出，反对福利议案。例如，1794年当麦迪逊总统看到这份议案时，说‘虽然《宪法》给了我们花纳税人钱的权力，但是这份议案我是绝对不会答应通过的。’《宪法》问世一百年后的1887年，克利夫兰总统否决了一项议案。他在否决理由中说：‘根据《宪法》，我找不到任何可以支付此项支出的授权。’请注意，他们提出了一个观点。他们没有说：好吧，这么做对我们有好处。他们是说，不论这么做对我们是否有好处，我们都没有权力这么干。现在，我们再来看一下富兰克林·罗斯福是怎么做的。1935年，罗斯福写信给众议院筹款委员会主席时说：‘对这份议案的合宪性如果有保留意见，无论意见的理由多么充足，我都不希望阻止它的通过。’我们再来看一下美国‘新政’计划的主要设计师之一，雷克斯福德·特格威尔，在事情过去30年后回顾自己做过的工作时这样说道，‘为了确保我们的计划能够获得通过，我们不得不对一份意在阻止我们计划的档案进行曲解式解读。’他们当然清楚他们在干什么：他们在扭转《宪法》的方向。这一点被人发现了，这种态度被人发现了，也许二十世纪初，汉密尔顿·菲什爵士的点评得最为精辟：‘朋友之间什么《宪法》不《宪法》的。’由此看出，过去人们对《宪法》非常不尊重。伍德罗·威尔逊在担任总统的时候，就把《宪法》当成一件束缚他的紧身衣。他认为，按照《宪法》应该授予他更大的权力，于是他敦促人们去读《宪法》，好让他成为建国120年来，直到他执政时人们所理解的、更大的权力 。”
“Yeah. The Founders, the founding generation, and subsequent generations, for about 150 years understood and, to a large extent, lived by these principles that were implicit and often explicit in the Constitution, in our founding documents, especially after the Civil War amendments were added. And, in fact, we have examples of people in the Congress rising from the floor to oppose a given welfare bill because, as for example, Madison said in 1794, when he was faced with such a bill, “I cannot undertake to lay my finger on that passage of the Constitution that authorizes us to expand the money of the taxpayers on this particular proposal.” One hundred years after the Constitution was written, in 1887, President Cleveland vetoed a bill. And in his veto message, he said, “I can find no authorization for this expenditure under the Constitution.” Notice, they were making a point of principle. They weren’t saying, oh, it would be good for us to do this. They were saying whether or not it would be good for us to do it, we don’t have the authority to do it. Now, contrast that with Franklin Roosevelt in 1935 writing to the chairman of the House Ways and Means Committee as follows: “I hope you will not allow any reservations about the Constitutionality of this bill, however well founded, to stand in the way of its passage.” Contrast that with a comment by Rexford Tugwell, one of the principal architects of the New Deal programs, reflecting on his work some 30 years later, and I quote, “In order to get our programs through, we had to engage in tortured interpretations of a document that was intended to prevent them.” They knew exactly what they were doing. They were turning the Constitution on its head. It was captured – the attitude was captured, perhaps most succinctly, by Hamilton Fish Sr. early in the 20th century when he said, “What’s the Constitution among friends?” And so, yes. There was a great deal of disrespect for the Constitution. Woodrow Wilson, when he was president, saw the Constitution as a straitjacket. He thought that – he wanted to have greater power than was authorized to him under the Constitution. And so he urged reading the Constitution as allowing him much more authority than had been understood for our first 120 years, by that point in time, up till then.”
Coming up, Dr. Pilon believes neither liberals or conservatives have stayed faithful to the Constitution. Stay tuned to find out why.
Neither Liberals or Conservatives Stayed Faithful to the Constitution
萧茗（Host/Simone Gao）：“这是您最近写的一篇题为‘对卡瓦诺的投票不会解决美国最高法院的更深层的问题’文章中的一段：‘因此，我们现在有两种法学派别。自由派倡导司法激进主义推动不断演变的自由主义价值观；保守派敦促司法克制，实质上是媾和，与对行政部门卑躬屈膝的新政法院的媾和’。 所以这很有意思，您是说当今的任何一派都不忠于立国之本的原始精神吗？”
“This is a passage from one of your recent articles: “The Vote on Brett Kavanaugh Won’t Solve America’s Deeper Supreme Court Problems.” “Thus, we now have two jurisprudential schools. Liberals urging judicial activism to promote evolving liberal values; conservatives urging judicial restraint, making peace, essentially, with the New Deal Court’s deference to the political branches.” So this is very interesting. Are you saying neither side in today’s America has stayed faithful to the original spirit of the country’s founding principles?”
“Yes. The evolution of – the Constitutional revolution of 1937 through 1943 led, eventually, to two fundamentally different approaches to constitutional interpretation: one liberal, the other conservative, in the American context. Both schools are wrong. And here’s the way they broke down. I’ll divide it between powers and rights. With respect to powers, both of them accepted the end, the demise of the doctrine of enumerated powers, which the Court had eviscerated in 1937. Conservatives, because they thought it a lost cause; liberals because they liked government with all this expanded power. Where the two schools differed was on the rights side. The liberals were enforcing rights episodically, the liberals on the Court were enforcing rights episodically, namely finding rights that were nowhere there to be found while ignoring or disparaging rights like property rights, contract rights, economic liberty that were plainly there to be protected under the Constitution. By contrast, fearing that kind of liberal judicial activism, conservatives on the Court urged the Court to enforce rights that were only those rights that were expressly in the Constitution, thereby ignoring the rights that were meant to be protected under the Ninth Amendment, which reads “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Notice: “retained by the people.” You can’t retain what you don’t first have to be retained. The Ninth Amendment was alluding to the vast sea of natural rights that we have, essentially, rights to be free. And so you had both schools that, as I said earlier, were wrong. They were wrong on the power side, and they were wrong on the rights side. ”
萧茗（Host/Simone Gao）：Pilon先生说还有第三条路线，那就是通过《内战修正案》，完成恢复《麦迪逊宪法》愿景的自由主义原则。换句话说，在权力方面恢复明确权力的道统，将国会限制在其明确的权力范围之内，在权利方面，保护人民的明确和未明确的权利。这种路线可能带来什么样的争议呢？那么这场关乎美国未来的斗争还意味着什么呢？我们将在下一集《世事关心》中探讨这些问题。请在线搜索我们：“Zooming In with Simone Gao”。感谢收看，下次再见。
There is a third option. According to Dr. Pilon, that is the libertarian approach, which would restore the Madisonian vision of the Constitution as completed by the Civil War amendments. In other words, reviving the doctrine of enumerated powers on the powers side, limiting Congress to its enumerated powers; and on the rights side, enforcing both enumerated and unenumerated rights. What controversy might stem from that approach? And what else will the fight for America’s future entail? We’ll explore these questions in the next episode of 《Zooming In》. Make sure to search for us online: “Zooming In with Simone Gao”.Thanks for watching. See you next time.
Editors：Julian Kuo Bonnie Yu Bin Tang Melodie Von York Du
Narrator: Rich Crankshaw
Cameraman：York Du Wei Wu
Transcription: Jess Beatty
Translation：Greg Yang Xiaofeng Zhang Frank Yue Guiru Zhang
Special Effects：Harrison Sun
Assistant producer： Bin Tang Merry Jiang
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