You might classify it under the category of misinformed distortion when Levin alleges government proceeded much as the Founders wanted up until the New Deal, but I’ll leave Founders intent out of this for now. The grand omission by Levin in his first chapter is faulting the New Deal for events that first occurred earlier in our history.
Levin accurately claims that the New Deal witnessed a President playing party politics by expanding and packing the Supreme Court, but this was neither the first nor the most significant action of its type. John Adams is the first President to pack the courts out of party politics. John Adams was a Federalist, the party that favored strong, centralized government and would evolve to eventually become the Republican party (yes, you read that right). The Federalists were on the wane largely because of an overzealous pursuit of centralized government, as manifested in the Alien and Sedition Acts of 1798. To maintain the influence of the party that favored centralized government Adams packed the court with Federalists before leaving office, including Chief Justice John Marshall.
Marshall’s most important decision was Maybury v. Madison, in which the Supreme Court effectively made themselves the final arbiter of the Constitution. Unelected officials for life serving as the ultimate judge of valid laws, appointed through party politics, is about as centralized and paternalistic as government can get. The point of this centralized paternalism was to strengthen commerce. Throughout the long tenure of Marshall’s Court decisions were handed down that consistently favored federal authority over that of the states in areas of commerce, fulfilling the most important objective of what amounts to the early Republicans.
This paternal authority on behalf of commerce did not end with the Marshall Court. The latter half of the nineteenth century witnessed what would be called the laissez faire court, the majority of which were former corporate lawyers. Early in their tenure came the decision that corporations were like individuals in deserving the same due process of law. The laissez faire court was particularly enamored with substantive due process, meaning that they did not hesitate to overrule states with their federal authority if, in their judicial opinion, corporations were not given proper treatment in substance as individuals. This culminated in a decision that equated contracts with liberty.
Think about those two words for a minute. Contracts and liberty. Contracts constrain the liberty of what individuals might otherwise do without the contract. Two people bartering don’t need no stinkin’ contract or government. Ah, but an agreement between the “individual” person and “individual” corporation, well, you better get government involved via the contract to make sure both “individuals” stick to the deal. Of course, everyone knows that contracts should be bargained from a position of strength. Hmm. Which type of “individual” has the most strength in these “liberty” contracts enforced by government? For that matter, what type of party and/or ideology do corporate lawyers tend to represent?
We are to assume from Levin’s omission of relevant historical facts for his thesis that the Supreme Court behaved as the Founders intended throughout much of our history. Then FDR wrecked it all by diluting the influence of corporate lawyers on the Supreme Court. There is actually some truth to this, as the Founders known as Federalists would have wanted a heavy-handed partnership between government and corporate “individuals.”
Before I leave the misinformation category of omission, it’s noteworthy to point out that while Levin acknowledges different types of conservatives, he omits categories of “nonconservatives” and categories of “liberty” for the sake of setting up his dogma. For that matter, he leaves out different categories of Founders, an omission that borders on distortion, which I will get to next.
Here is previous background material.
An overview of misinformation principles
A basic understanding of free markets
