Issue #23, Winter 2012

The Roberts Court v. America

How the Roberts Supreme Court is using the First Amendment to craft a radical, free-market jurisprudence.

The Supreme Court’s several-pronged attack on the regulation of spending, selling, and buying reinforces one of the most persistent and pernicious intellectual mistakes of the time, one that we share with the Lochner era: the idea that markets are natural phenomena, arising from their own organic principles and free human action, while politics and lawmaking are artificial interferences with this natural activity. In fact, as sophisticated economists, lawyers, and others have always understood, markets are the products of law, which defines and enforces the ownership and exchanges that set the market in motion. A laissez-faire market arises from one kind of law, a more social-democratic market from another. There are things to say for and against both kinds of markets, and any real-life economy has complex blends of both elements—for instance, minimum-wage laws, bans on racial discrimination and prostitution, speed and weight limits for long-haul truckers, and so forth are all straightforward limits on laissez-faire market freedom. It is obscurantist to suggest that some version of the laissez-faire market is a natural baseline, and anything that departs from it needs special justification. That is the spirit of the new cases. Taken to their limit, they would set aside the intellectual and political gains of decades of struggle in the twentieth century: the New Deal recognition that the country must take responsibility for shaping its own economy, and the decision to remove the old American romance with economic libertarianism from constitutional judging. It is the revival of that bad romance that makes the memory of Lochner relevant now.

What is happening here is deeper than cynical partisanship—these cases are not Bush v. Gore. The original Lochner era did not consist merely of corporate toadying or crudely ideological applications of laissez-faire theory. The justices of that time were interpreting long struggles for constitutional freedom. Jacksonian attacks on monopolies for the privileged few, the abolition of slavery, and the Fourteenth Amendment’s new promise of equal citizenship for all Americans formed the backdrop to Lochner. In effect, the Court decided that constitutional doctrines that blocked some economic regulations were the best way to define a new version of American citizenship that made everyone equally free for the first time. The problem was not that they were insincere or inane, but that they were wrong: Everyone wasn’t equally free.

Like the old Lochner-ism, today’s new anti-regulatory doctrines are rooted in ideas: that personal freedom has an economic dimension that the Constitution protects, and that government efforts to equalize or otherwise direct economic power are pernicious and constitutionally suspect. Like the old cases, the new ones end up protecting economic power as a form of freedom, which ties the hands of government and leaves lots of people less free.

What will become of all this depends, at the crudest level, on the outcome of the next presidential election and the next few Supreme Court appointments. In a more complex way, it depends on the quality of our politics and public life. The Constitution is what Americans make of it. Constitutional law is unlikely to produce a better version of its core principles, freedom and equality, than America’s social movements and political leaders confidently voice and pursue. For a few decades in the twentieth century, regulating the economy to enhance personal freedom and security was a goal shared between Democrats and Republicans, big business and labor. Earlier, however, it was a fraught idea, denounced as socialism or fascism, and it became consensual only after the crisis of the Depression and the decades-long efforts of the labor movement and progressive critics of laissez-faire. If Americans do not re-establish ideals of equality and personal liberty that take account of vast social and economic inequality and give government a strong role in addressing it, we will get the Constitution, and the country, we have earned.


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Issue #23, Winter 2012
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Larry Jorgensen:

I am fearful of our country's future. I do not agree that corporations are individual citizens with all the rights accruing to a flesh and blood US citizen. Corporations are a group of individuals banded together in a common commercial enterprise. A corporation cannot vote in an election, why then, should a corporation have the right to influence elections by virtue of tremendous wealth. Isn't that the same as unregulated lobbying?

Dec 13, 2011, 2:16 PM
Kirk Michael:

I am hopeful for our country's future. I have seen that the special interest groups like labor unions which used to have special power over other special interest groups now have come to to play in the planefield as others.

Dec 13, 2011, 3:26 PM
Renee Marie Jones:

"... the voices that best represent the most significant segments of the economy." is a very telling phrase. The Supreme Court asserts that corporations are a "better" voice than their workers and that corporations are "more significant" than their workers.

It is very sad to live in a society dominated by such ideologically mindless, brainwashed, and greed-driven people.

Dec 13, 2011, 5:48 PM

How soon before the Supreme Court legalizes outright bribery? After all, the fact that I can't buy off politicians and building inspectors is an infringement on my liberty. And of course, the poor and rich equally will have the right to purchase the attention of public officials.


Dec 13, 2011, 8:59 PM

I just wanted you to know that this is one of the best articles I have ever read. It is just outstanding. Thank you for articulating thoughts I have struggled with for years.

Dec 14, 2011, 3:49 AM
Ben Meyer:

There is much going on right now that really makes one consider whether the US is still holding true to its values, more specifically those outlined by the Constitution itself. The vast majority of this has sprouted from the overreaching of Congress over the last 100 years - reaching into the rights and liberties of the States and Citizenry.

While I agree that some level of regulation is necessary - EPA is constitutional since environments of one state do affect that of another thereby de minimis the commerce clause could apply, for example; Congress has often overstepped its boundary from Copyright (DMCA), to now Health Care (individual mandate), and many other ways.

And while you are suggesting that much of the weight of wealth and such is being tossed around due to results of SCOTUS, there is much more being tossed around due to the overbearing and overreaching laws passed by Congress itself.

The Constitution is a wonderful piece of work, and any power/right not explicitly granted to the Federal government is thereby reserved for the States and the people. This means that higher levels of government have more restrictions than lower levels of government in what they can do to control the lower levels of government. And since the States by extension have to have a State Constitution that mirrors the Federal Constitution, this same principle bears the same relationship from State to local governments and the people as well.

However, over the last 100 years Congress has done more and more to pull more power towards the Federal government - from pork barrelling special projects to withholding matching funds for Congressionally mandated work when States do not do as Congress wants. (That in itself should be illegal under the Constitution as Congress is in effect bribing the States to give up power and rights.)

We see this again in the DMCA which not only extends Copyright again - such that is it now well beyond the life of even the author's children and perhaps grandchildren - but makes it easier for corporations to shutdown economic activity as illegal when it would otherwise be legal - e.g. putting a weak 'protection' on copying - thereby forbidding otherwise legal activities (e.g. archiving, changing of storage mediums, etc.) in favor of corporate interests.

And no, the ACA does not resolve the health care issues - it just panders more to large corporations. Reform would be requiring insurance companies to pay out based on the service provided, paying out what the doctor specified, and not allowing them to be able to challenge the doctor so long as the doctor acted within the boundaries of their field. Instead, we have more insurance - more paperwork, and more bureaucracy - all of which means that doctor's will have to charge more to cover the administrative costs, and individuals and companies will have to pay more to cover the same insurance since they are now mandated (illegally) to have insurance.

True health care reform would not require individuals to have insurance, but actually accomplish lowering the costs. ACA does not do that for numerous reasons.

SOPA/ProtectIP currently before the Congress are in similar scenarios - pandering to corporate interests at the expense of the people, codifying it in Federal law. One provision would make some actions that were civil issues under the DMCA criminal issues; others essentially allow corporations to wiretap you without any due process.

It will also be interesting to see how SCOTUS rules on immigration. The Federal Government as designed does not have enough power to enforce all the laws it sets out; thereby it needs to work with state and local communities to enforce all laws. As a result all levels of government have the responsibility for upholding the laws of its locality and that of above it. However, the President is presently refusing to enforce some laws and prohibiting localities from doing so as well, claiming only the Federal government has the authority to uphold federal laws, though that is not the case.

True reform will not be possible under Congress stops pandering to corporate interests, and the courts uphold a Federal government of limited powers.

Dec 14, 2011, 12:52 PM

The problem with the critique of the "free market" is that such critique lacks an alternative. It is still the best method of allocating scarce resources.

Every alternative requires some other actor deciding how resources are allocated, and these actors are seldom objective.

Dec 15, 2011, 12:29 AM

For material goods, the free market works.

But for immaterial goods, things are a lot different. Copyright protected works are not 'scarce'. The internet and computers reduce the price for copying these works to the point where giving one person a copy of the work is just as expensive as giving it to everyone in the whole world.

Yet, the neocapitalist viewpoint is that since we CAN attempt to treat these works like property, we "SHOULD". When all the evidence so far seems to indicate that this model is far from the best we can do, if not downright counterproductive.

What this article points out is the fact that the government is in the business of regulating power. More precisely: Preventing and mitigating inequalities in the balance of power. That Freedom, and Finance, are both forms of Power, and need to be balanced against each other, is a fine point that very few people appear to appreciate.

Jan 9, 2012, 6:40 AM
Charles Broming:

I am refreshed by the author's use of history to develop a perspective that is broad and deep enough to provide a lens sufficiently wide-angle to enable us to see the developing pattern of this court's rulings during the prior three decades. The Gilded Age and the Roaring Twenties provide an excellent paradigm for the economic and political conditions that have driven the current SCOTUS's judicial activism since the first Reagan appointees. The irony of this is hilarious, yet, frightening. The Lochner decision and the Courts between 1870 (roughly) and 1936 were activist assaults on the legacy of the Marshall Court. Are we ready for another 20 or 30 years of this trend? I'm not.

Apr 4, 2012, 4:31 PM

If one takes the ultra right idea to its full extent, we end up with those that earn $200K or more and better than anyone below that level. If corporations wish to hire their workers for a $1 an hour, so be it. Those who refuse to work at that rate can live in the streets or the hills, or die of starvation. After all they could have taken the job for $1 per hour but didn't. If there are too many people and some die, so be it--or so they seem to think. After all they got theirs by working hard. Luck or position never had anything to do with it. Just ask Justice Thomas!!! We're going back further than the Gilded age--more like the Medieval ages with lords and slaves--of various caliber. I'm glad I won't live to see it all happen.

Apr 4, 2012, 6:20 PM
Marvin H. Gladstone:

Mr. Dooley is credited with the prescient observation that (notwithstanding its members are appointed and enjoy life tenure) "the Supreme Court watches the election returns."

Apr 4, 2012, 6:34 PM

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