Unintended Consequences (Part One)

(Note: This is the first segment in a two part series.)

Facebook’s initial public offering this week may serve as a useful reminder that sometimes our best intentions are disregarded. The devil fools with the best laid plans. Hell is paved both with sorrow and good intentions. But why do these old adages attribute responsibility entirely to the dark side? Might the rich getting richer be a simple matter of unintended consequences? Here are some thoughts to ponder:

Recently, a spectacularly wealthy American capitalist named Edward Conard has written a book with the catchphrase title of Unintended Consequences. The book makes a case for income inequality, bringing to light a litany of benefits bestowed upon public society by the venerable “one percent” class. The message is obviously self-serving. But in so doing, might the book’s message serve instead to have an opposite effect? Might its message unite the other ninety-nine percent, in a way the author had not intended?

US History serves some interesting examples of unintended consequences. There was a time when the US Supreme Court actually decided that black people had no right to sue in federal court, because they were considered to be a class of property, not people. The rationale was that the Declaration of Independence and the Bill of Rights were not intended to apply to African Americans. Moreover, since blacks were not considered to be people, Congress did not have the power to exclude the institution of slavery from the US territories which were not yet states. The will of the people who lived in those territories, which may have been to the contrary, was disregarded.

The Supreme Court ruled that what needed protection was the slaveholder’s property rights, under the 5th amendment. To rule otherwise would violate the prohibition against the seizure of their property without just compensation. The human welfare of black people was said to be secondary.

Designed to solve the controversy over slavery once and for all in the years prior to the Civil War, the decision proved to be a major political miscalculation. In reality, the opinion represented a judicial defense of the most extreme slavery position. Instead of solving the crisis, the decision intensified sectional strife, undercut potential compromise solutions and weakened the moral authority of the judiciary. It was a case of unintended consequences.

Almost a hundred years later, the US Congress passed the last and most recent immigration law of substance in this country. The law ended the immigration-limiting European quota system of the 1920s. Some say it was designed to bring in more whites to the country.

When President Lyndon B. Johnson signed the Immigration Act of 1965 at the foot of the Statue of Liberty, he stressed the law's overall symbolic importance:

This bill that we will sign today is not a revolutionary bill. It does not affect the lives of millions. It will not reshape the structure of our daily lives, or really add importantly to either our wealth or our power. Yet it is still one of the most important acts of this Congress and of this administration (as it) corrects a cruel and enduring wrong in the conduct of the American nation.

The president from Texas was not being uncharacteristically modest, saying only what his advisors and “experts” had told him. But, the myriad potential consequences of the new law, little noted at the time and ignored by most historians for decades, were appreciably misjudged by the president's experts.

(Next week's second segment charts the opposite, unintended effect of the law, some interesting immigration statistics and future projections, and projects a couple of present instances where the intent of the governing class may be far removed from the reality on the ground.)

-Michael D'Angelo

Obamacare and Supreme Court Review (Part Three)

(Note:  This is the third and concluding segment in a three part series.  The first segment traced the confrontation between the executive and judicial branches to the powerful forces of conservatism to maintain and preserve the status quo.  The second segment featured examples of the confrontation in action from the archives of US History...)


In a new twist in the opposite direction of its conservative character, the Supreme Court relied on innovative readings of the constitution to resolve the disputed 2000 presidential election in favor of the more conservative candidate.  It was the first and only presidential election decided by the Supreme Court in US history.

The outcome of the election between Vice President, Al Gore (Democrat), and Texas Governor, George W. Bush (Republican), turned on a razor thin victory for Mr. Bush in the state of Florida, where his brother, Jeb, was Florida’s governor.  But the Florida Supreme Court ruled that state law required a statewide manual recount of all ballots in which a machine failed to register a vote for president.

A federal lawsuit ensued.  The five most conservative justices on the US Supreme Court issued a ruling that no more recounting could take place, explaining that the review of these ballots threatened “irreparable harm to (Mr. Bush), and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”  The dissent responded that “counting every legally cast vote cannot constitute irreparable harm.”

The conservative majority noted that the Florida Supreme Court’s failure to articulate a more specific standard for determining a legitimate vote violated the constitution.  Under a different set of circumstances it might have been possible to send the case back to the Florida Supreme Court to create a more explicit standard.  But the majority announced its belief that the state of Florida intended to resolve all disputes by the federal deadline ensuring the state's electoral college votes would not be challenged in Congress.  Since the decision was handed down on the evening of the deadline, there was no time left to count votes.

The practical effect of this decision was to declare Mr. Bush the president-elect.  Mr. Gore promptly conceded.

The dissent argued that the US Supreme Court had no business interfering in the presidential election dispute, stressing that these issues were more properly addressed by the state of Florida and then Congress, if necessary.  The dissent also emphasized that the majority's opinion was inconsistent with the previously expressed views of those justices on limited government and that the actual loser of this presidential election was “the Nation's confidence in the judge as an impartial guardian of the rule of law.”  Allegations of partisan decision were inescapable.

·            The present 2012 election year political environment, with a progressive Democratic president facing conservatism again seemingly retired into the judiciary, bares similarities with prior instances.  And so Mr. Obama’s recent sentiments expressed on the pending constitutional challenge should come as some surprise: “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

But Mr. Obama’s confidence may be little more than a product of wishful thinking.  The independence of the US Supreme Court in its decision-making methodologies is beyond question and as such strictly another matter.  Its own political labels and rigid ideologies may be discarded, even the opposition’s ideologies borrowed and reformulated for convenience.  History demonstrates that a conservative US Supreme Court is more than ready, willing and able to become judicially active, big government style.  It may even don the insipid label of the “L” word, “liberal”.  All judicial options are on the table, when it comes to crafting a result which protects the status quo in particular deference to its powerful conservative minority constituency.

President Obama has said: “I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint.  That a group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.”  The President is a popular chief executive who by his words has fired an interesting political warning shot across the bow of a conservative Supreme Court.  If the idea of an adverse ruling can be felt as a tremor, then the ramifications of an actual decision striking down the new healthcare law has the potential of a political earthquake.

-Michael D'Angelo