Airline Deregulation as the Origin of the Neoliberal Order in the US

"Most people trace the birth of neoliberalism to Ronald Reagan—with the Democrats hopping on board in the 1990s with the election of Bill Clinton. But Clinton merely consolidated neoliberal ideas and turned them into a national agenda. I do not blame Clinton’s successful presidential campaign focus on “It’s the economy, stupid” for kick-starting the party’s fascination with neoliberalism in 1992. I place the birth date of neoliberalism on October 24, 1978, because that is the day that President Jimmy Carter signed the Airline Deregulation Act into law.

I will freely admit that the Airline Deregulation Act is something of a pet peeve of mine. It’s a law that makes me irrationally angry, although it is objectively not as important as our antidemocratic voter suppression techniques, nor as vile and racist as our treatment of immigrants. But I believe the law to be a consequential misstep for the entire country. It is the moment when the Democratic Party turned its back on Franklin Delano Roosevelt’s New Deal and Lyndon Johnson’s Great Society and instead adopted the language of the free-market, unregulated claptrap pushed by capitalist thugs. It’s a language that has been swallowed whole by the corporate media and now bleeds out into our national conversations about the social safety net, social justice, and even the power of the government to combat the greatest threat of our age, climate change.

I cannot say that the Airline Deregulation Act caused many of the bad laws we still live with today. I can say that if you understand how Democrats passed the Airline Deregulation Act, you will understand nearly every fucking mistake the Democratic Party has made over the last 50 years.

Bork’s theory is that the entire point of laws is to bring about these market efficiencies and lower prices. Not to build a better, more fair society or, you know, stop evildoers, but to increase profits while lowering costs. Bork belonged to a school of thought called law and economics (sometimes scholars will shorthand this to the Chicago School, because a lot of these people were incubated at the University of Chicago School of Law), which holds that just about every law can and should be understood through an economic cost-benefit analysis, and the government should pick the most profitable one. It’s incredibly popular in legal circles, and if you spend any time studying law, you will quickly come across people, both liberal and conservative, who will blithely reduce every legal question—from abortion rights to First Amendment issues to healthcare—to a back-of-the-envelope math equation.

Neoliberalism eventually took over the Democratic Party, capped off by Bill Clinton’s successful 1992 presidential campaign. Bill and Hillary Clinton both studied under Bork at Yale Law School, which is a fact I often think about when contemplating why the Democratic Party sometimes looks like an uncanny valley version of the Republican Party. Clinton would go on to appoint Stephen Breyer to the Supreme Court in 1994, giving neoliberals key footholds in all three branches of government. In 1996, Clinton declared in a State of the Union address, “The era of big government is over,” to the thunderous applause of both houses of Congress."

Ellie Mystal @ The Nation

As I've shown before I get defensive when people try to blame Neoliberalism on Carter; probably, principally, because he was the first potus that I got to vote for. He lost, of course. I responded to Carter, knowing practically nothing at the time, as sympathetically populist; more obviously for the people, the many, than the other guy. 

But my betters have worn me down. There is no gainsaying Carter making Paul Volcker head of the Fed, the monetary system.Volcker's animus for labor unions and working class people was legendary. And I admit Carter got the deregulation craze going, in airlines, trucking, etc, undeniably. 

I'll only maintain that while in retrospect Carter was crucial to the pre-history of Neoliberalism the official Neoliberal Order still did not take over until 1980, the Reagan Revolution, when conservative Neoliberal economics icon Milton Friedman joined the government and tax cuts for the rich and deregulation and hostility to labor unions and government programs became official policy. 

I also get defensive when people try to blame Neoliberalism's successful anti-Big Government takeover on Ralph Nader, a case I first encountered in Paul Sabin's Public Citizens (2021). The relevant case here is that Nader supported the deregulation of the airlines and maybe trucking too. These appear as mistaken positions (deregulated industries turned against unions) in retrospect but they didn't mean Nader was opposed to all government regulations or Big Gov. Establishing government safety regulations on the automobile industry was his first big consumer crusade after all. It's important to note that Nader opposed the industry capture of the regulatory departments of government. This was a big part of the whole Public Citizen thing. Nader's likely hope in the case of the airlines was that the labor unions could negotiate fairer contracts with the airline industry without the meddling of a captured government regulatory agency. He was wrong. But Public Citizen harbored no illusions about industry, the central conceit of the Neoliberal anti-Big Government position. Nader's fatal flaw, if you ask me, and this is what Yale Professor of History Sabin's book drove home for me, was Nader's Humpty-Dumpty attitude about the two major parties, failing to find some kind of compromise with the Democrats and failing to see the Republicans were a far bigger threat to his consumer protection interests.   

Beyond these quibbles, maybe every word here by Nation writer Elie Mystal is right on. My take on Clinton's role is more or less the same, he consolidated Neoliberalism as the national agenda (Rubin, Summers, etc) but he didn't start it. 

And, again, another story putting a spotlight on Bork as a monumental baddie. Bork was utterly foundational to the Neoliberal takeover with his "economics and law" doctrine. Bork was portrayed as something of a villain on TV in his failed bid to sit on SCOTUS during the Reagan administration. But I had no idea the depth of his villainy back then. Basically, over the past half century Bork's teaching at Yale bent the entire legal system into supporting profit seeking efficiencies over basic human rights and community welfare; in short, turning the courts away from any consideration of social justice. He wasn't entirely successful but he's a dominant intellectual figure on the libertarian right and amongst conservatives and the Federalist Society; and even an important influence on Neolib civil rights hybrid Dem pols like Clinton and Obama. There is more good stuff on Bork's terrible legacy in Matt Stoller's Goliath (2019). 

Anyway, Mystal, Harvard law grad, critic journalist, makes the personal case for Carter's deregulation of the airlines in 1978 as ground zero for the Neoliberal Order in the US. Still debatable but Mystal's style of debate, which actually reminds me of super smart second generation rock criticism, populist ripostes to the elite condescension of the 1960s Tom Wolfe prototype, concise, penetrating, captious, and funny but, unlike Wolfe, pugnaciously liberal and endlessly polemical. I always enjoy his stuff, even when I know he's exaggerating.  

   

How Originalism Killed the Constitution

Historian Jill Lepore in The Atlantic: 

"The philosophy of amendment is foundational to modern constitutionalism. It has structured American constitutional and political development for more than two centuries. It has done so in a distinctive, halting pattern of progression and regression: Constitutional change by way of formal amendment has alternated with judicial interpretation, in the form of opinions issued by the U.S. Supreme Court, as a means of constitutional revision.

This pattern has many times provided political stability, with formal amendment and judicial interpretation as the warp and weft of a sturdily woven if by now fraying and faded constitutional fabric. But the pattern, which features, at regular intervals, the perception by half the country that the Supreme Court has usurped the power of amendment, has also led to the underdevelopment of the Constitution, weakened the idea of representative government, and increased the polarization of American politics—ultimately contributing, most lately, to the rise of a political style that can only be called insurrectionary.

The U.S. Constitution has one of the lowest amendment rates in the world. Some 12,000 amendments have been formally introduced on the floor of Congress; only 27 have ever been ratified, and there has been no significant amendment in more than 50 years. That is not because Americans are opposed to amending constitutions. Since 1789, Americans have submitted at least 10,000 petitions and countless letters, postcards, and phone and email messages to Congress regarding constitutional amendments, and they have introduced and agitated for thousands more amendments in the pages of newspapers and pamphlets, from pulpits, at political rallies, on websites, and all over social media. Every state has its own constitution, and all of them have been frequently revised and replaced.

Article V, the amendment provision of the U.S. Constitution, is a sleeping giant. It sleeps until it wakes. War is, very often, what wakes it up. And then it roars. In 1789, in the aftermath of the Revolutionary War, Congress passed 12 amendments, 10 of which, later known as the Bill of Rights, were ratified by the states by 1791. A federal amendment requires a double supermajority to become law: It must pass by a two-thirds vote in both houses of Congress (or be proposed by two-thirds of the states), and then it must be ratified by three-quarters of the states (either in legislatures or at conventions). No amendments were ratified in the 61 years from 1804 to 1865, and then, at the end of the Civil War, three were ratified in five years. What became the Thirteenth Amendment in 1865, abolishing slavery, had first been proposed decades earlier. No amendments were ratified in the 43 years from 1870 to 1913, and then, around the time of the First World War, four were ratified in seven years. The Nineteenth Amendment, granting women the right to vote and first called for in 1848, was ratified in 1920, after a 72-year moral crusade.

Again, the giant slept. In the 1930s, President Franklin D. Roosevelt largely abandoned constitutional amendment in favor of applying pressure on the Supreme Court.... 

Between 1980 and 2020, members of Congress proposed more than 2,100 constitutional amendments. Congress, more divided with each passing year, approved none of them. 

&&&&&&&&&

The full story is about how the legal theory known as Originalism undermines the evolutionary balance in the US Constitution. Lepore, American historian at Harvard, longtime NY-er journalist, traces an outline of evolutionary balance in US history that includes periods of popular pressures demanding democratizing reforms, Amendments to the Constitution, usually following the cataclysm of wars, alternating with periods of judicial interpretation and review, reconciling democratic pressures with existing Constitutional precedents and the foundational values of the framers. 

Originalism, spearheaded by controversial jurist Robert Bork (what Malthus was to free market capitalist early-19th c myth Bork is to Neoliberal technocratic capitalist late-20th c myth), and championed by iconic conservative justice Antonin Scalia, has undermined this evolutionary balance of the Constitution. Killing the Constitution. 

Originalism opposes this idea of a give-and-take evolutionary balance in the Constitution as a "living constitution." "It's dead. Dead, dead, dead," scoffs Scalia in public speeches. Jurists extending civil rights to groups unidentified in the Constitution, women, Blacks, etc, are "activist judges" and very bad. Liberal judicial review submits to democratic pressures, Amendments, and a changing evolutionary Constitution and is disparaged as "bleeding-heart liberalism." Originalism insists on strict, limited, readings of the framers original constitutional intentions. 

Originalism strikes me as really embarrassingly crackpot stuff for a national institution like the judiciary. Lepore calls Originalism radical but it holds tremendous sway within the conservative mainstream of The Federalist Society; the source of all the conservative justices on SCOTUS and the conservative legal establishment. 

Lepore's main case is how for an idea rooted in the importance of history, precedents, and the original framers intentions, the Originalists sure peddle a lot of bad history. Her historical takedown of Scalia's crowning achievement, his 2008 Second Amendment gift to Gun Rights enthusiasts, District of Columbia vs Heller, is like Lisa Simpson doing a touchdown dance with her saxophone. Love it. 

(I'd also recommend her podcast X Man: The Elon Musk Origin Story.) 

In my amateur take I'd lump Originalism with Neoliberalism and Social Darwinism as kind of obvious intellectual frauds that really only exist as propaganda to protect the rich, wealth, Billionaires, and market fundamentalists from democracy and the rule of law. Labor rights, expanding civil rights, environmental protections, public infrastructure, taxes, regulations, anything that gets in the way of their profit seeking and private wealth hoarding is verboten. That people otherwise sympathetic to working class rights should embrace these ideas as expressions of heroic machismo is one of the tragic conundrums of our day.