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.」
蕭茗（Host/Simone Gao）：「 您只是反對那麼做的方式，反對他們改變《憲法》的方式嗎？還是您從本質上認為《憲法》就是《憲法》，不能被當作一個動態文件來對待？」
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?
蕭茗（Host/Simone Gao）：歡迎來到《世事關心》，我是蕭茗。最高法院大法官提名之戰塵埃落定，卡瓦諾正式成為最高法院大法官。但人人皆知，下一場提名之戰將同樣激烈。這場博弈無關乎控辯雙方誰可信，無關乎Metoo運動，甚至無關乎程序正當性，這個國家雙方所爭關係甚巨。一個黨在議會實現不了的、在最高法院卻可以實現。如果民主黨上位，會實施更多政府主導的再分配與更多政府監管；如果共和黨上位，美國有望回歸建國之父所構想的美國。問題的根本在於，美國的立國之本，是否還能激發人們努力去實現生命的意義。我採訪了Roger Pilon博士。他是卡托研究所分管法律事務的副所長，也是研究所下屬Robert A. Levy憲法研究中心的創辦人。
「 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（卡托研究所副所長/分管法律）：「在『新經濟政策』時期，尤其是富蘭克林·羅斯福任期的頭4年，他操縱國會通過的法案被最高法院一個接一個地宣布違憲，不是由於法案逾越了國會的授權範圍，就是侵犯了個人權利。1937年早些時候，他公佈了他的臭名昭著的最高法院改革法案。他威脅要為最高法院增加6名法官，這樣他就可以控制最高法院。結果舉國反對，這看起來像是對法制的攻擊，但是最高法院屈從了羅斯福，它開始在沒有憲法修正案的情況下重寫憲法。他們通過3個主要步驟來做：首先，他們移除了憲法的基本原則，也就是列舉權原則。憲法規定國會只有18項權利，這隱含在憲法的第一句裡， 在憲法第十修正案裡寫的也很明白。它是這麼說的：憲法沒有賦予合眾國的權力，也沒有明文禁止合眾國擁有的權力，則屬於各州，或是屬於人民。 所以在新政時期的最高法院，於1937年首先廢除了這個原則。這開啟了走向現代收入再分配和管制型福利政府的大門。一年之後的1938年，最高法院拆分了《權利法案》，拆分了司法复核理論。換句話說，他們把權利區分為兩種：基本權利和非基本權利，把司法复核分成兩個等級。結果是把經濟自由降到第二等，也就是允許國會和其它部門搞更多的管制和財富再分配，最後在1943年，最高法院剔除了不授權原則。這也是憲法前言之後的第一句，這麼說的：『憲法賦予的立法權由國會所有』，不是一些，而是全部。最高法院的做法是，允許國會將更多的立法權下放給行政機構，那些國會不停設立的機構。大概450個，沒有人確切知道到底有多少個，這種機構、行政機構，遍布華盛頓。那些機構制定了絕大多數與我們的生活相關的法律、規定、規則、指導原則什麼的。比如國稅局、健康和社會服務局、聯邦通訊委員會、聯邦貿易委員會，我可以說出一大堆這種執行機構來，所以這就是現代的管制型政府的來歷。這就是我們，應該說是最高法院，被羅斯福政府欺壓了之後，把一部對政府有限授權的憲法歪曲成了對政府無限授權的憲法。我們中的很多人，尤其是卡托研究所裡的人，認為這種改變我們政治體制的做法是根本上非法的。正確的改變方法，應該按憲法內戰修正案規定的那樣（13，14， 15修正案）， 通過修改憲法帶來改變，而不是通過司法詭辯和耍花招的方式。」
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（卡托研究所副所長/分管法律）：「締造美國的先輩們，他們那一代人，還有之後的幾代人，在大約150年的時間內，是很理解《憲法》、立國文件中暗示的、很多時候明示的這些原則的，並且在很大程度上身體力行，在內戰後《民權修正案》加進去之後更是如此。事實上，國會中已經有人挺身而出，反對福利議案。例如，1794年當麥迪遜總統看到這份議案時，說『雖然《憲法》給了我們花納稅人錢的權力，但是這份議案我是絕對不會答應通過的。』《憲法》問世一百年後的1887年，克利夫蘭總統否決了一項議案。他在否決理由中說：『根據《憲法》，我找不到任何可以支付此項支出的授權。』請註意，他們提出了一個觀點。他們沒有說：好吧，這麼做對我們有好處。他們是說，不論這麼做對我們是否有好處，我們都沒有權力這麼幹。現在，我們再來看一下富蘭克林·羅斯福是怎麼做的。1935年，羅斯福寫信給眾議院籌款委員會主席時說：『對這份議案的合憲性如果有保留意見，無論意見的理由多麼充足，我都不希望阻止它的通過。』我們再來看一下美國『新政』計劃的主要設計師之一，雷克斯福德·特格威爾，在事情過去30年後回顧自己做過的工作時這樣說道，『為了確保我們的計劃能夠獲得通過，我們不得不對一份意在阻止我們計劃的檔案進行曲解式解讀。』他們當然清楚他們在幹什麼：他們在扭轉《憲法》的方向。這一點被人發現了，這種態度被人發現了，也許二十世紀初，漢密爾頓·菲什爵士的點評得最為精闢：『朋友之間什麼《憲法》不《憲法》的。』由此看出，過去人們對《憲法》非常不尊重。伍德羅·威爾遜在擔任總統的時候，就把《憲法》當成一件束縛他的緊身衣。他認為，按照《憲法》應該授予他更大的權力，於是他敦促人們去讀《憲法》，好讓他成為建國120年來，直到他執政時人們所理解的、更大的權力 。」
「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
蕭茗（Host/Simone Gao）：「這是您最近寫的一篇題為『對卡瓦諾的投票不會解決美國最高法院的更深層的問題』文章中的一段：『因此，我們現在有兩種法學派別。自由派倡導司法激進主義推動不斷演變的自由主義價值觀；保守派敦促司法克制，實質上是媾和，與對行政部門卑躬屈膝的新政法院的媾和』。 所以這很有意思，您是說當今的任何一派都不忠於立國之本的原始精神嗎？」
「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. 」
蕭茗（Host/Simone Gao）：Pilon先生說還有第三條路線，那就是通過《內戰修正案》，完成恢復《麥迪遜憲法》願景的自由主義原則。換句話說，在權力方面恢復明確權力的道統，將國會限制在其明確的權力範圍之內，在權利方面，保護人民的明確和未明確的權利。這種路線可能帶來什麼樣的爭議呢？那麼這場關乎美國未來的鬥爭還意味著什麼呢？我們將在下一集《世事關心》中探討這些問題。請在線搜索我們：「Zooming In with Simone Gao」。感謝收看，下次再見。
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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