I am increasingly convinced that the fourth great crisis of American national life (after 1774-1794, 1861-68 or so, and 1929-45) began either on 9/11 or in November 2000 at the time of the contested election, and that it is limping towards its conclusion as Barack Obama moves through a disappointing second term. Events could change my mind. Another economic collapse or a foreign war could put us back into full crisis mode, although the latter, despite disquieting noises from China, seems unlikely. The crisis is in many ways a non-violent version of the civil war. The nation, divided largely on regional lines, has fought a bitter conflict over the role of the federal government and over values. Religion has played a larger role in this crisis than in any other in American history. This time we have not fought the conflict militarily, but rather through a ruthless use of our political institutions designed to mobilize both sides around common values. Because I have given small amounts of money to Democratic campaigns I get about three emails a day asking me for contributions to elections that are 17 months away, and I'm sure Republicans get parallel messages. This ensures that nothing like a consensus between the parties will emerge any time soon.
The Supreme Court played an enormous role in the post-civil war period, striking down civil rights legislation and the income tax, limiting the federal government's ability to protect the rights of freed slaves, and providing new legal protections for corporations under the 14th Amendment. Meanwhile, after initial postwar Republican victories, the political parties fought each other to a standstill for almost twenty years. From 1876 through 1892, the shift of a single state in the electoral college would have changed the results of every presidential election. In our time, a more closely divided Supreme Court has had at least as big an impact.
This week, the invalidation of the key section of the Voting Rights Act confirmed that the conservative majority has no compunction about substituting its judgment for that of the politically elected branches in defiance of precedent or the Constitution--something the Warren Court rarely did. The Voting Rights Act is a straightforward exercise of the express power granted the Congress to enforce the provisions of the 15th Amendment barring racial discrimination in voting. Congress first exercised that power in 1965 and has done so repeatedly since, most recently late in the Presidency of George W. Bush. The court has now thrown out their work because it does not feel that the 1965 rules for coming under the act should still prevail. In practice they do not--some districts in the deep South have been able to earn their way out of the act with good behavior, while various northern districts have become subjected to it. But Chief Justice Roberts did not care, and the Justice Department will no longer be able to block voter ID laws based upon their discriminatory impact. Once again, as in the Citizens United decision, a 5-4 majority composed entirely of Republican-appointed judges has given the Republican party a boost in the elections. The chance of a redefinition of eligibility getting through the current Congress appears to me to be nil.
Meanwhile, the court continued undoing the achievements of the Progressive era and the New Deal, narrowing the application of the antitrust laws in a key case involving American Express. As I recall, the Clayton Act, passed in the Wilson Administration, was specifically designed to prevent monopolies from unfairly exploiting their market power, for instance by forcing buyers of their products to buy additional ones in order to get access to the one they exclusively produced. American Express falls into that category: it has a monopoly, apparently, on credit cards for businesses, which it exploits to force restaurants to accept its consumer credit cards as well, even though it charges higher user fees than other credit cards. Bringing a suit would not be a worthwhile investment for a single restaurant, but a class action suit could save restauranteurs millions if they won at American Express's expense. The Court disallowed such a suit, effectively endorsing the use of monopoly power. This is yet another echo of the Gilded Age.
But two different majorities essentially invalidated the federal Defense of Marriage Act and undid Proposition 8 in California, which had banned same-sex marriage. Incredibly, Justice Scalia, dissenting in the DOMA case, blasted the majority for overruling the will of Congress and the Executive, even though he had helped do the same in the Voting Rights case earlier in the week, and even though DOMA is nearly ten years older than the latest revision of the Voting Rights Act. I am glad that gay marriage remains a matter for individual states. Roe v. Wade was disastrous for American politics because it created a new right-wing cause of enormous power, and I do not think that cause would have played such a role in our national life had the states retained the power to legalize abortion, as the two largest ones had already done in 1973. Pressure will mount even on states like Texas to recognize gay unions. This is a real victory for human rights, but it exemplifies what has happened to liberal politics in the last forty years.
Gay marriage is a step forward in individual freedom and a welcome one. Unfortunately, the rights of women, minorities, and gays have been virtually the only issues around which liberals have been able to organize themselves over the last few decades. Progress in those areas has certainly helped highly educated women and minorities realize their dreams, and open gays can now lead much happier lives, but the bulk of the population continues steadily to lose ground. It is not clear to me that lower-income women or minorities and better off than they were 40 years ago, and the Democratic Party is now unable to do much about that. Ironically gay marriage is a major step towards more traditional values, since it is about family formation. I don't think we know yet exactly what the long-term effects of the decline of the traditional family are going to be.
Thus, during this crisis, each side has gotten what it wanted most. The Democrats have secured rights for women, minorities and gays; the Republicans have promoted massive economic inequality and corporate freedom. This is another parallel to the Civil War crisis, in which Democrats managed to restore white supremacy in the south while Republicans established corporate supremacy all over the nation. These will be the legacies of the Boom generation. I am not sure that generation will live to see the country go in a new direction.l