The Law of Unintended Consequences is one of the most powerful laws in human society. It is the law that informs us that we are not God or gods. It tells us that we do not know what the future will be even if we try to discern it and especially when we do not even try. It manifests itself quite clearly in the decisions made in Washington which then have unexpected effects for years and decades to come.
In this post, I address some examples of this phenomenon at work.
The Supreme Court ruling prohibiting separate-but-equal as a guiding principle for schools continues to affect Americans to this very day. On the one hand, the Court made a judicial ruling about a particular doctrine as being unconstitutional. On the other hand, the Court then mandated a remedy to the situation which actually was a form of legislation. The legislative solution was arrived at without public participation. It did not follow the normal political discourse which would have occurred if he Court had turned to Congress with instructions to write a law reflecting the principles of the judicial decision. Instead it decreed a solution. Are we today where the Court wanted us to be when it legislated the solution nearly 70 years ago?
The Court did not address the following in its school ruling:
1 the continued existence of segregated neighborhoods
2 the continuing disparities in school funding based on local taxes
What the Court did do was to exploit the most vulnerable members of the community, children, by ordering them to be removed from their neighborhoods and communities and bused to neighborhoods and communities that did not want them.
To the surprise of no one who stopped to think about this legislative decision on how to live according to a legal principle, the Court mandate was not well received. Over time, people developed ways to game the system as one should have expected.
1 new primarily white municipalities were created
2 new primarily white private schools were created
3 chartered schools developed as a new concept
4 magnet schools were created to separate white students
5 support for property taxes for public schools declined
6 it was accepted that quality schools in every neighborhood was not a goal.
I am not suggesting that any legislation to end school segregation would have worked. I am suggesting that abandoning the concept of quality schools in every neighborhood contributed to having schools with tainted water, rats and cockroaches, inadequate supplies, and inferior technological resources. While all of this could not be anticipated the Court had the recent experience of Prohibition to remind them of the limits of a law on changing behavior. Imagine how different public education would be if the Supreme Court had mandated standards in the physical infrastructure of neighborhood schools.
By contrast, civil rights legislation including voting occurred in public and not in secrecy. In this case, Congress passed legislation with specific goals in mind. The law of unintended consequences did not apply here. President Johnson knew exactly what would happen once these laws were passed – Confederates would leave the Democratic Party and become Republicans. Johnson was exactly right. Confederates remain Republicans to this very day. Lee is a more revered figure to many in the Republican Party, than Lincoln.
With abortion, the Supreme Court followed the same scenario it had in the school busing decision. The Court made a decision on a legal principle, this time the previously unknown right to privacy. It then took it upon itself to legislate how that right was to be implemented. Again it did it all by itself without any public discussion. Again it mandated the implementation.
This time the outcry was even worse than with school busing. Here we are 50 years later and that Supreme Court decision dominates politics. Off hand, I cannot recall another Supreme Court decision that has had the staying power of the abortion decision to remain so important in the American political arena. It is hard to imagine that when the Judges ruled on abortion decades ago that they thought it would remain a sustaining issue for as long as it hand.
Abortion and school busing share some actions in common.
1 The trimester and busing solutions pronounced were not necessarily the one and only way to fulfill the legal principles enunciated in the case – when more than one solution is possible, the resolution should be done through the legislature and not the court.
2 The solution was decided upon in secret without public participation.
3 Opponents have tried to game the system ever since it was rendered.
It also is highly unlikely that Supreme Court Judges anticipated the change in technologies which have occurred. It is highly unlikely that Supreme Court Judges anticipated debating the merits of 6 weeks versus 15 weeks versus 24 weeks as a legal issue. Is that really why they went to law school?
Even with the Supreme Court ruling(s), the options available vary widely from state to state.
In addition, there is more and more awareness now that the issue for many abortion opponents is not about the sanctity of life but the control of women.
The effects of Obamacare extend far beyond healthcare. It is comparatively easy to determine the number of people who have benefited from the enlarged health care provisions. The difference is especially notable when contrasting states which have accepted the Medicaid expansion and those which have not. There is no doubt that strictly from a healthcare perspective, Obamacare rates as a positive piece of legislation.
However life is not all healthcare. Imagine for a moment that the legislation had been passed not in 2009 but in 2011 or 20213 or 2015. See the difference? Johnson foresaw the political consequences of the passage of civil rights legislation; Obama did not foresee the political consequences of passing the health care legislation. The political consequences of that legislation continue to disrupt American politics to this very day and likely will until 2030 if not beyond.
The reason is 2010. A census was conducted in 2010 just as it was in 2020. Based on the census, the number of Congressional electors is reallocated among the states. Within each state, the federal and state legislative districts are then redrawn as well. It is a time of gerrymandering where political parties slice and dice the electorate to maximize their control of the legislature. For Democrats, the 2010 elections were a disaster of catastrophic proportions. While all the results cannot be attributed to Obamacare, there is no doubt that the 2010 election greatly aided the Republican Party in asserting its control over many state legislatures. Democrats can still win state-wide elections for Governor or Senator in those states, but it would take a tsunami to end Republican control in the state legislatures.
How do you measure the cost of the benefit of healthcare versus the loss of state legislatures? Johnson knew the Democrats were going to lose and decided the merits of civil rights outweighed the political loss of the Confederate vote. Would Obama still have supported Obamacare right out the box (while Ted Kennedy was still alive), if he had known the political consequences?
Unfortunately for Democrats, the situation is even worse for Democrats following the 2020 census. Despite the changes in population and the demographics, Republicans rule in more state legislatures than Democrats. It is becoming increasingly more difficult to have battleground Congressional districts. They still exist but their numbers dwindle.
What makes the situation worse for Democrats, is that the rules of the game have change. It is not just about gerrymandering now. There is voter suppression. There are compliant Secretaries of State who are obedient to a candidate and not to the Constitution or the rule of law. There are changes in voting rules empowering state legislatures to select electors instead of leaving it to the people. The list of restrictions to determine the desired outcome continues with even more laws promised in 2022 to ensure that only Trumpican candidates prevail with there being little the Democrats can do about it. The changed environment means the country is on 2010 with steroids. Democratic governors are fighting state legislatures that have had non-Democratic majorities since 2010. This too is part of the cost of Obamacare.
We may not even have to wait for 2024 to have electoral chaos.
I don’t know if the math exists to calculate the benefits from Obamacare versus the costs of Donald Trump.
Soon there will be another round of unintended consequences. The decades long quest by the anti-abortion forces finally will prevail just as the Temperance movement eventually had an amendment passed. What will happen then?
On January 6, Trumpican insurrectionists said if they could not rely on the Supreme Court then they had no choice but to take matters into their own hands. By 2024, both sides in America’s Third Civil War may feel the same way.