The Proud Tower
In the realm of law, there is a concept known as “settled precedent.” This refers to certain points that have been argued and decided enough times in the past that the court recognizes no need for them to be defended in every particular case where they appear. The idea of settled precedent – not just in law, but in culture – is central to the whole notion of progress, because if we are constantly re-examining fundamentals, there’s no real way to move forward.
Argument from precedent is usually a conservative strategy, and it is the “radicals” (literally, “roots”) who attack the foundations of institutions in order to gain leverage in overturning them. Today, the roles are reversed. It is progressives who must defend basic core principles, and self-styled conservatives who are launching the radical attacks against the underpinnings of modern society. They are doing so by going after precedents whose validity has been so well established over the years that the arguments for their existence have almost been forgotten from disuse.
Take, for example, the current debate over the estate tax. It’s hard to imagine a piece of tax law more fair and fundamental to the idea of democracy and its basic values of equality, merit, and achievement through hard work. After all, there is hardly any group in society more odious and less productive than the scions of inherited wealth. The current inheritance tax makes practical exemptions for small estates, businesses and farms, derives revenue without taking from earned income, affects only a small handful of families, and serves an important democratic goal of inhibiting (if only slightly) the foundation of dynasties by the intergenerational transfer of dead capital to feckless and undeserving heirs (those who are productive can make their own money). Few items of legislation are as sound in principle and politics than this, and yet, somehow, we find ourselves in a pitched battle to preserve it from “permanent” elimination by a rabid pack of ideological radicals.
This is only one example. Such fundamental aspects of American governance as Social Security, the progressive income tax, and anti-trust law (especially as it relates to media companies) are under sustained and systematic attack from the extreme right. It would not be a surprise if, in a few years, we find ourselves re-arguing the merits of the minimum wage, child labor laws, the 40-hour work week, and, eventually, the Constitutionally-protected rights of due process, trial by jury, freedom of assembly and more.
All of these elements of our civil society were enacted not by the connivance of liberals and socialists, but by the consensus of the American people in response to particular historical conditions. They remain part of our government partly because they work as intended, and partly because, until now, legislators were not eager to recreate the kinds of problems and crises that made these institutions necessary in the first place. Whatever the shortcomings of the income tax, for example, they are nothing compared to the catastrophes of public finance and international trade that arose when the government relied on excise taxes and tariffs as its primary source of revenue. Today, those problems have been forgotten – due to having been effectively solved by the solution designed to address them.
It was the hope of “progressives” and the historical bias of the 20th century to assume that these advances would become permanent, that elements of settled cultural precedent would not have to be re-argued from first principles in every generation. Amazingly, the losing side of all of these battles have nursed their grievances over the years, awaiting the moment when the last watch over the guard towers had been abandoned. The hordes approaching the tower are ruthless and determined, but the old bulwarks will still hold if we can summon ourselves to mount the defense, one more time.
12:59:00 PM 
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