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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