"Well, in our country," said Alice, still panting a little, "you'd generally get to somewhere else — if you run very fast for a long time, as we've been doing."
"A slow sort of country!" said the Queen. "Now, here, you see, it takes all the running you can do, to keep in the same place."
— Through the Looking-Glass, Lewis Carroll
We live in a world that's much more like the speedy land of the Red Queen than the quiescent realm described by Alice. In almost every area of life, holding still is a sure route to disaster. Biologists have long used the sprinting-in-place metaphor in describing a never-ending arms race between predators and prey, or diseases and their hosts. Businesses too are pressed to keep moving, adapting, and improving. They recognize that changing conditions and ready competition mean that standing still equals being passed by. There's a reason why "going nowhere" is rarely regarded with favor.
Political parties and governments are subject to exactly the same sorts of pressures. A party that fails to adjust its messaging and make its objectives relevant to current conditions, is a party bent on joining the Whigs. From season to season policies have to be repackaged and goals redefined. Watch long enough, and the positions of parties can shift completely as they circle and search for the votes on which they live. Keeping up, just staying even, requires constantly pushing, constantly probing the boundaries, constantly learning how to apply leverage to media opportunities, economic conditions, and demographic shifts.
Discussion of the "Overton Window" — the way in which issues are framed by presenting possibilities that seem presently unworkable, or even unthinkable — often generates concern over arguments being defined in terms that are ever more extreme. Want more charter schools? Don't argue that private enterprise can be aneffective engine of education, argue that public schools are irretrievably broken, educational unions uninterested in students, public school teachers lazy and overpaid. Want the government to offer an alternative to private health insurance? Don't make your case on efficiency or fairness, argue instead that insurance companies are death machines inevitably driven to mass murder to pad the bottom line.
These arguments may seem shocking, but that's the way it has to be. A vibrant, living party is always most active at the boundaries. When a party stops shoving its own window of possibility further from the center post, it becomes relegated to tending the inner frame of the opposing party's window. It becomes an afterthought, and eventually a laughingstock.
The mainstream is where political parties go to drown.
Governments are not exempt from the Red Queen's treadmill. In fact, they have to join the race on two levels. Not only are they in direct competition against every other government extant, in terms that range from testing in the economic arena to blood on the battlefield, every government must also test itself against those forces determined to tear it down from the inside. In every county, state, and nation, under every system of government, there are parties who benefit more from the government's absence than its presence, as well as those who want to use the mechanisms of government to forward personal objectives. The first group can be as simple as criminals. The second as blatant as warlords. In between are stock traders who want to cripple the FTC so that they can operate in the shadows, banks who want to use the government as insurance against their own recklessness, and corporations who want to turn the military into a club to pound out profits.
How the government contends with these forces is through the application of law and regulation. Part of the writ of most governments is an obligation to protect the rights, property and health of their citizens. Regulation is what makes this possible. Far from representing the oppressive hand of tyranny, regulation is the only means through which freedom can be preserved. It provides defense against thieves and warlords alike. It's the reason government exists and the effectiveness with which regulation is applied is the measure of a government's success against its besiegers.
However, to be effective regulation must be constantly changing, continuously evolving in response to new strategies devised by those trying to evade the system. Like zebras on the savannah, regulators must stay alert for the development of more effective predators, because the predators never cease to look for predictable zebras.
Preventing effective regulation is a tactic as old as the first tax levy. In many places in the world, the route to destroying effective government is as direct as putting cash into the right hands. The reason that so many governments are corrupt is not because people in those regions tend to be more corruptible. It's because the thieves and the warlords learned long ago that direct application of money is a tactic as effective as a lion springing from cover. Against governments that are inexperienced, or systems that haven't had an opportunity to develop their own stabilizing "immune system," bribery is brutally efficient. For corporations seeking influence in unstable regions or claim to disputed resources, dollars to palms is the tactic of choice. Unless sustained efforts are made to protect these governments from the influence of corruption, these tactics will continue to work and a large portion of the world's population will continue to be miserable.
In other countries, including the United States, defeating regulation takes on a less direct form. The most common means is simply to complicate the machinery of government; to throw so many checks, requirements and hurdles in government's path that the thieves and warlords take ten steps to government's one. If it often seems that regulatory agencies are arbitrary in their responses, inflexible in their views, and mostly plain old ineffective, you're absolutely right. It's not by accident. While in some countries regulatory bodies are given the flexibility to be responsive to changes in the areas with which they are charged, that's rarely the case in the United States. Why are the bills that run through the US Congress so enormous in relationship to the more stripped down text that covers the same topic elsewhere? Because the US bills are filled with the minor arcana of specific situations and specific solutions, spelling out for regulators just how every facet of the bill is to be applied. This is not done to make the regulatory path smoother or clearer. It's done to make it impossible.
Each one of those additional lines of exacting description acts as an anchor, constraining action and limiting the effectiveness of regulations. These exacting details mean that the bills are as fragile as spun sugar, subject to evasion by any dodger artful enough to make a minor adjustment in tactics. Rather than providing a firm basis for rulings, these details only reveal the fractal nature of any legislation. The idea that they provide more clarity is a farce — there is no level of description possible that promises to cover every situation. For an example, mountaintop removal mining has continued on in the face of legislation that was specifically intended to end the practice more than twenty years ago, a result made possible merely by launching an attack on the single word "fill."
In some cases, bills come complete with the pretense of their own regulatory forces, but are designed so that those forces have no real possibility of applying the rules they're charged with enforcing. Often they're not only weighed down by descriptive detail, but provided with no means of enforcement. Or the bill promises to create cops on the beat, but those authority figures never appear because they are either denied funding or held up by congressional holds. All those tactics were on full display in deregulation of the financial markets that generated both the Savings & Loans debacle and the banking crash of 2008. In both cases, expanded opportunity for fiscal institutions was supposedly accompanied by oversight from authorities charged with staving off disaster, and in both cases those regulatory bodies were purposely limited, understaffed, hampered, and hogtied to the extent that they often were operating years behind the "inventions" of the institutions they were seeking to regulate. It's a self-reinforcing and wholly intentional system in which government is placed at a huge disadvantage, then chided for being ineffective. Which government's opponents naturally cast as an excuse for making government even less effective.
Why do financial lobbyists spread fear about the new Consumer Financial Protection Bureau? It's not because Elizabeth Warren is a tower of moral responsibility. There are plenty of good people trying to do the right thing in government. Ms. Warren just happens to have landed in an organization whose role has not yet been so circumscribed as to make it easily ignored. There's no reason to believe that the new bureau will actually be given any teeth, but it just might. For the anxious criminals and would-be warlords, that's enough to make Elizabeth Warren into a target.
When simply clogging the system with pointless detail isn't enough, and regulations threaten to remain valuable, the forces engaged in preventing effective government go to their not so secret weapon. They engage in a form of judo known as "literal interpretation." Under this oxymoronic cover, conservative members of both Congress and the Supreme Court use government to cripple government. This is done through the pretense that the Constitution — purposely written to be a flexible, adaptable skeleton capable of supporting the nation through centuries of discovery and change — is instead a fixed and immovable wall. They swear their allegiance to the pretense that the founders of the nation never intended that it grow, or even survive. America the Theme Park, forever suspended in time.
Literalism and its cohort, original intent, are the big guns of government irrelevance. Under shelter of these guns there is no financial scheme, no erosion of rights, and no means of outright extortion that cannot find protection. Literal interpretation is never invoked to demonstrate the government's obligations to its citizens. Never invoked to sustain rights of individuals. It's a tool reserved for throwing government out of the game and preserving every ploy, hoax, or flat out crime invented this side of 1788.
By making a stance on original intent, conservative justices are not only renouncing the value of the court, they're depriving the nation of an instrument that has again and again served to free us from the mire. Whether it's Brown v. Board of Education or Roe v. Wade, a flexible and insightful Supreme Court can break through inertia and restore government's role in protecting individual rights. A court bound up by original intent can only sit on the sidelines of history. Which has little to do with the desires of the people who wrote the constitution, and everything to do with the desires of conservatives over the last century. Original intent isn't designed to protect the United States, it's designed to end it.
When William F. Buckley Jr. introduced the National Review, he gave its mission statement as "It stands athwart history, yelling Stop." He made this declaration of immobility in 1955, in reaction to such radical developments as women's rights and a Republican president who supported international cooperation. That mission statement has since been turned into the mantra of the conservative movement. Buckley intended those words to shock, and they should, because "stop" is perhaps the most radical demand that anyone could make. Stop is the one thing no government can do.
Our government only works to the extent that it's allowed to work. Laws and regulations are not created in a vacuum, they're created out of need. They represent hard won knowledge developed in the battlefield of trial and error. It's only right that the court act to protect the framework of the Constitution, and to excise those laws that impinge on individual rights. It's wholly wrong that the court use the bludgeon of original intent to cripple the possibility of effective government. The Supreme Court, like other federal officials, may take an oath to preserve the Constitution of the United States, but it's a safe bet that the word was never meant to imply sealing the document in a Mason jar and holding it in the cellar like last year's pickled beets.
When conservatives present the idea of standing in the way of progress, don't for a moment think they do so out of any sentiment for the nation. It's entirely destructive to the country, the constitution, and the goals of the men who formed both, to treat their ideas like a stake in the ground. They gave us a starting line, not a dead end.