Fascist Federalism at The New York Times

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The
New York Times objects
to the Supreme Court's recent contraction of the Americans
With Disabilities Act
. I can't believe my eyes, either.

Board
of Trustees of the University of Alabama v. Garrett will no
doubt be lauded by parched conservatives who see the slightest defense
of federalism as a nomocratic oasis. (The decision is akin to last
year's Morrison decision that invalidated part of the Violence
Against Women Act but left the law otherwise intact.) The Left thrives
on such low expectations, knowing their opponents will be satiated
by these cosmetic affirmations of first principles.

The
Times echoes a conservative critique in arguing that Garrett
is an act of judicial usurpation, "the latest in a series
of lamentable judicial assaults on the legitimate authority of the
federal government to identify and address serious national problems
by enforcing constitutional guarantees of equal protection."
Talk about a zany mixture of New Deal rhetoric with Anti-Federalism!

The
editorial notes that the ADA "marked a turning point in recognizing
and remedying the entrenched unfairness that too often marginalizes
disabled Americans." An introductory sociology text couldn't
have put it better.

In
defense of the ADA's legitimacy, the Times contends: "The
disabilities act is a reasonable exercise of Congress's broad power
under section 5 of the 14th Amendment of the Constitution
to enforce equal protection. As such, it deserved more deference
than the court's dismissive treatment." Don't you love the
poetic cadence of the second sentence?

The
substance, however, is inferior to the style. The Equal Protection
Clause of the 14th Amendment plainly applies to state
action, not private conduct. An Alabamian who refuses to hire a
wheelchair-bound individual is not equivalent to the State of Alabama
refusing to hire that individual. (This leaves aside the problematic
implementation of the 14th Amendment. For discussion
by two scholars of disparate orientations, see Bruce Ackerman's
We
the People: Transformations
and Forrest McDonald's States'
Rights and the Union: Imperium in Imperio, 1776-1876
.)

The
judicial amalgamation of private and state action through the 14th
Amendment is among the worst innovations of the high tribunal, sophisticatedly
advancing a synonymy between state and society. (See Reitman
v. Mulkey as an exemplary instance. In this case, the Court
affirmed a California Supreme Court ruling finding unconstitutional
state encouragement of racial discrimination in a referendum that
protected proprietary discretion in housing.) Is this not reminiscent
of Mussolini's "Everything within the state, nothing outside
the state"?

A
trait common to all total states is the erasure of the private sphere.
Mussolini's dictum perfectly summarizes fascist doctrine and omnipotent
government in general. After all, if private life is respected,
the State's purview is not plenary. This exterior immunity is intolerable
to those of regulatory intensity.

James
Madison observed in Federalist No. 54, "Government is instituted
no less for protection of the property than of the persons of individuals."
The definitiveness of that sentence reflects the profound proprietary
component in American federalism.

Federalism
according to the Times would convert a business owner's refusal
to hire a disabled individual – a term that includes drug addicts
and alcoholics – into state action. As such, its constitutional vision
accords more with Il Duce than the framers.

For
further reading: James Bovard, "Disabilities Dementia,"
in Feeling
Your Pain: The Explosion and Abuse of Government Power in the Clinton-Gore
Years
.

March
5, 2001

Myles
Kantor lives in Boynton Beach, Florida.

Myles
Kantor Archives

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