Gleichschaltung, American Style
by George W. Liebmann
Gleiichschaltung was the process by which the new Nazi regime in Germany subordinated to itself every independent organism in the German state–the Prussian police (1932, under the Papen government), the political parties, federal states, labor unions, universities and Protestant churches (1933), the Army (1934). The underlying purpose was set forth earlier by two Italian fascists, Benito Mussolini and Giovanni Gentile: “Everything within the State, nothing outside the State, nothing against the State.” This supplies the epigraph of Anne Applebaum’s excellent recent book on the Communist takeover of civil society in postwar Eastern Europe.
When the Allies repaired the social damage to Germany after World War II they insisted on provisions in the German Basic Law reserving control of education and the police to the German Lander. The Basic Law has also been interpreted to forbid conditional grants to the Lander by the national government.
The American Constitution was once thought to spare the United States from anything like the 17th century dictatorship of Charles I’s ninister , the Earl of Stafford resting on a standing army. Hence the enumeration of federal powers, the limitation on military appropriations, the requirement of Senate confirmmation of military officers, the reservation to Congress of the powers to suspend the writ of habeas corpus and to declare war, the militia clauses, and the Second and Tenth amendments. Today’s law schools evince little concern about the growth of federal policing, let alone Macaulay’s fear of “call[ing] into existence a power which could not be controlled [so that] the Parliament was compelled to submit to its own soldiers.”
The federal policing establishment, despite depression and war, was smaller in 1952 than in 1932 thanks to the repeal of Prohibition. Robert Jackson did much to see to it that federal policing was limited and divided among several agencies.
We now have a Department of Homeland Security, a would-be Ministry of Interior that would have delighted Napoleon’s policeman, Fouche. Ill-advised Clinton administration legislaion allowing federal injunctions against local police is noe being exploited by agitators and acquiescent Mayors to foster unified law enforcement. If our body of a million policemen is to be under federal direction, our experiment in liberty will be over.
One barrier to this is the recent decision in Frew v. Hawkins (2004) allowing subsequently elected public officials to seek dissolution of consent decrees. The danger of perpetual decrees surrender5ing local powers have been well described in Democracy by Decree: What Happens When Courts Run Government by David Schenbrod and Ross Sandler (Yale, 2003).
The increasing federal control over education arises from a different source: “the taxing power of the federal government, my dear, the taxing power is sufficient for everything you want and need,” Chief Justice Stone advised Secretary of Labor Frances Perkins.. This device did not come to full fruition until the 1960s. Large disparities in per capita income among states on the order of 5 to 1 gave rise to federal aid to education programs. These disparities are now less than 2 to 1 but the programs live on. Their driving force is the great yield of the federal income tax, not shared with the States in the German manner, giving rise to what Professor Paul Freund once called “apoplexy at the center and anemia at the extremities.” Today’s inequities in public schools are not the product of finances but of seniority ‘bumping’ provisions in union contracts.
Fund withholding sanctions, granted by the 1964 Civil Rights Act, have had malign effects. In schools, the federal Department of Education has used them to enforce a misquided mandate for the ‘mainstreaming’ of ‘disabled’ students (including the ‘emotionally disabled’). The popularizer of this policy, the British social reformer Lady Mary Warnock, has since partially recanted her views; not so our federal education bureaucracy. Public schools find it impractical to maintain a separate system of discipline for ‘mainstreamed’ disabled students; the effect has been to undermine discipline for all students after a valiant effort by former Senator Slade Gorton to get the feds out of the school discipline business fell two votes short in the Senate in 1997. Public school students and their parents are now well aware of their cumbersome procedural rights , and their principals and teachers are equally aware of the potential liabilities imposed by the one-way fee shifting of the Civil Rights Attorneys’ Fees Act. As the Yale law professor Grant Gilmore once observed: “The worse the society, the more law there will be. In Hell, there will be nothing but law, and due process will be meticulously observed.”
The ukases about discipline have been followed by new ‘guidelines’ on trans-gender bathrooms, a power play conducted in defiance of the public participation requirements of the Administrative Procedure Act. The theory here is that the Civil Rights Act is self-executing, and that all claimed rights are ‘civil rights.’ There are no limits to the reach of this theory; after all, Justice Holmes once observed that “all legislation is class legislation.”. The new guidelines have been lauded by the usual editorialists “who care not who makes the laws, so long as the laws are to their liking.” Anyone favoring democratic procedures is by definition a bigot.
Other ‘guidelines’ have been published requiring private as public colleges to require their students to acquire “affirmative consent” before engaging in sexual relations, to establish ‘kangaroo courts’ applying a preponderance of the evidence standard to adjudicate offenses, and further requiring colleges to punish unwelcome verbal conduct creating an “hostile environment.” These rules cut more deeply into private behavior than the legislation of the worst totalitarian states; nothing is to be left to determination by manners rather than laws. They reduce any impulse to self-control and promise an increase in campus acrimony, the numbers of college administrators, and resultant tuition increases, college loans, and loan defaults.
Increasingly, the rules sought to be imposed on colleges resemble those in the German Criminal Law of June 28,1935, once held up as an horrible example in law school casebooks: “Any person who commits an act which is deserving of penalty according to the fundamental conceptions of the penal law and sound popular feeling shall be punished.” Certainly the Guidelines do not uphold academic feedom as defined in the British Higher Education Act: “freedom within the law to question and test received wisdom and to put forward new ideas and controversial and unpopular iopnions without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions.” Nor do they respect the four freedoms of the university asserted by the faculty of the University of Witwatersrand in protesting against apartheid: “to determine for itself, on academic grounds, who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”
The recent 7 to 2 decision in National Federation of Independent Business v. Sibelius limits conditional spending restrictions in a fashion urged by Justice Kennedy to those voluntarily accepted in exchange for new programs, a result supported by Justices Breyer and Kagan. Education in the principles of that decision and those of Frew v. Hawkins is needed to stiffen the backs of governors, mayors, school boards, and college presidents.
The recent outrages, and they are outrages, have been perpetrated as a result of the coming to power of the late 60s generation, conditioned to believe that federal mandates for greater equalization represent progress. Few remember Judge Learned Hand’s reflections on the totalitarian era: “the herd is regaining its ancient and evil primacy; civilization is being reversed, for it has consisted of exactly the opposite process of individualization.”
The conditional spending restrictions are a residue of the heroic age of the civil rights movement, illustrating the philsopher Alfred North Whitehead’s proposition that the liberating principles of one age are the confining ones of the next. The measures used to dismantle apartheid in the South have left a bitter residue for the whole country, including blacks in the North. Their interest lies in economic advancement to become equals in a free society, not subjects of an American nomenklatura, and in respect for what Justice Black called the “right of each man to participate in the self-government of his society.”. At least since the ‘white noose’ around large cities was lifted in 1968, the cry of discrimination has become irrelevant and the measures adopted in respoinse to it–quotas, ‘defining deviancy down’, a Community Investment Act bestowing on blacks the priceless gift of negative equity–counterproductive. The words of an early sponsor of civil rights litigation campaigns, Alkexander Pekelis, remain pertinent: “If ours is not a society of societies, a community of communities, real freedom is not achieved. [What is needed is] a constitutional control which is not dissimilar to a judge’s control of a jury. It leaves ample room for nonrational intuitional experimental and arbitrary elements. It renounces, by definition, the ideal of perfection, makes justice a question of degree, and is satisfied with keeping the juror’ws whim or discretion and the several governments’ discretion within the minimum limits of reason, and thus to reconcile diversity with equality and the rule of law with the freedom of men.”