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IAMNAPIV

The Ineffectual Supreme Court?

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Hello everyone! I would first like to say how pleased I am to have stumbled on this forum. The erudite explanations on so many matters that have bogged me have been invaluable. And it is also comforting to witness such astuteness when it seems that everyone I meet is an environmentalist, multicultralist, socialist, etc. etc.

The question I have to pose (which has been confounding me for some time) is this: Why hasn’t the Supreme Court put a stop to the escalating statism in our county? Or rather, has anyone attempted an appeal to this agency lately to protect the free market? I know that after FDR’s court-packing scheme, the Supreme Court sanctioned many statist statutes, such as minimum wage laws. But now with a conservative majority, some of whom openly oppose the welfare state, wouldn’t it be worth a shot to bring about legal action versus the federal government? Why haven’t billion dollar corporations thrown any of their money at suits to protect their rights (or if they have, why the lack of success)? Is there an ACLU of sorts to protect the free market? I know that my knowledge of the workings of our government is rather inadequate, but it astonishes me that this acclaimed system of checks and balances is failing its people so awfully.

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The answer is that the Supreme Court, including its Conservatives, do not understand the workings or the prerequisites of a free economy anymore than the rest of the government or the mainstream culture. To establish a free market, the philosophical climate must be right for it. We are probably a few centuries short of that point. As for the "Supremes", they are only as good as the best legal/political doctrines that have been established by better minds; ie Locke, Jefferson, Madison, etc.. As Ayn Rand observed, the country is drifting aimlessly right now, with its only protection the great legacy which shapped its founding.

Also, as is usually the case, some of the worst betrayls of the free market came under Conservative administrations; ie anti-trust. Conservative courts have also betrayed free market principles. For instance, zoning laws were upheld by a conservative Supreme Court in the 30's. At one point in US jurisprudence, the freedom of contract was given constitutional protection as a fundamental right. No more. Even worse, the era that granted such protection is spoken of in pejorative terminology as the "Lochner era." (referring to an early Supreme Court case where the right of contract was upheld to invalidate anti-business regulations)

Liberals and many Conservative justices today refer to the "Lochner era" as if they were referring to the era of Jim Crow or slavery. ( These are know as the "Dred Scott" era know for the Supreme Court case of that name upholding slavery or the "Plessy" legal era from the famous case Plessy v. Furgeson upholding Jim Crow laws.) Republican apointed justice Sandra Day Oconner referred to the "lochner era" in a recent case where she compared it to the opressive slavery and post slavery eras. Can you imagine? The 19th Century free market era in America equated with slavery.

These are your Supreme Court justices that you want to prevent the encroachment of statism in America. As you can see, they are not up to the challenge. Certain judges are better on certain issue (see The Center For the Advancement of Capitalism for 'scorecards' of each Justice) but as a whole the court is too corrupted to stop America's slide. Only a better philosophy can do that. And if you are reading this site, you know which one we all think that is.

One last point, Clarence Thomas is the only justice I know of who actually advocates a return to the "Lochner era" for Commerce Clause cases; ie he believes that the government should have only limited ability to regulate ineterstate commerce. He tends to be the "best" Justice on the court with regards to commerce, gun holding rights, criminal law issues, and similar related areas. However, he is very religious and he is terrible with drug legislation, seperation of Church and State cases, etc. His recent opinion (I think it was a concurrence) on the Pledge of Allegiance case was particularly terrible. He actually reads the First Amendment as upholding the State governments right to establish religion as opposed to the federal which can not. I can go on at length on Thomas, but you get the idea. Even the best judges we have are extremely mixed.

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The checks and balances only work when the government officials know how they work and actually implement them.

The Constitution is not failing us--it is the government officials, who are supposed to be custodians of the Constitution, who are failing us.

The Constitution can only function when people know what it is, how it works, and most importantly, understand its purpose and are dedicated to that purpose.

(I've read a rather frightening survey that said that somewhere around 70% of the America people don't even know the three branches of governmnet outlined in the Constitution. This along with another survey that said that an large portion believe that the phrase "from each according to his ability, to each according to his need" is in the Constitution!)

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The Constitution is not failing us--it is the government officials, who are supposed to be custodians of the Constitution, who are failing us. 

The Constitution can only function when people know what it is, how it works, and most importantly, understand its purpose and are dedicated to that purpose. 

Okay, I'd like to see a bit more detail in your argument. It seems to me that you're holding the Constitution, vs. the government, to different standards. The Constitution allows the invasive statism that exists at present, but it does not require it. The Constitution thus has clearly failed -- though I think unpredictably so -- because it allows the current socialism and statism that pervades America. The limits on governmental power spelled out in the Constitution are really minimal. The Constitution does not articulate a clear vision of individual liberty and capitalism -- just consider the Welfare clause and the Commerce clause, and what hell has been visited on us because of them. I don't entirely blame the framers (not having the specific historical knowledge needed to make such a judgment). But the fact of the matter is, the Constitution should have contained Anti-Welfare and Un-Commerce clauses which directly state that these are not the concern of the government. There's no question that the people in government have to take the rap for the fact that we have such attrocities as the Taft-Hartley Act: but equally, the Constitution has to take the rap for allowing these laws.

Now: if you have an argument that there are acts performed by the state in clear violation of the Constitution, then that's worth pursuing (and cc Scalia, just in case he decides to care). We really need to see the argument that the actions of the government undeniably violate the Constitution.

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The limits on governmental power spelled out in the Constitution are really minimal. The Constitution does not articulate a clear vision of individual liberty and capitalism -- just consider the Welfare clause and the Commerce clause, and what hell has been visited on us because of them. I don't entirely blame the framers (not having the specific historical knowledge needed to make such a judgment). But the fact of the matter is, the Constitution should have contained Anti-Welfare and Un-Commerce clauses which directly state that these are not the concern of the government. There's no question that the people in government have to take the rap for the fact that we have such attrocities as the Taft-Hartley Act: but equally, the Constitution has to take the rap for allowing these laws.

You make really good points. I am inclined to say that the Founders deserve to be cut some slack for their choice of wording. "General Welfare" in their day did not mean the system of free lunches that it does today and the Commerce Clause was included to prevent against protectionist anti-trade policies between the states (to protect against petty in fighting). But it would have been better if they placed more explicit limitations on Government in the document. But then I think that no matter what a Constitution says, if the cultural philosophy is bad, the altruist/collectivist/statist axis will find a way to pervert it.

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Okay, I'd like to see a bit more detail in your argument. It seems to me that you're holding the Constitution, vs. the government, to different standards. The Constitution allows the invasive statism that exists at present, but it does not require it. The Constitution thus has clearly failed -- though I think unpredictably so -- because it allows the current socialism and statism that pervades America. The limits on governmental power spelled out in the Constitution are really minimal. The Constitution does not articulate a clear vision of individual liberty and capitalism -- just consider the Welfare clause and the Commerce clause, and what hell has been visited on us because of them. I don't entirely blame the framers (not having the specific historical knowledge needed to make such a judgment). But the fact of the matter is, the Constitution should have contained Anti-Welfare and Un-Commerce clauses which directly state that these are not the concern of the government. There's no question that the people in government have to take the rap for the fact that we have such attrocities as the Taft-Hartley Act: but equally, the Constitution has to take the rap for allowing these laws.

Now: if you have an argument that there are acts performed by the state in clear violation of the Constitution, then that's worth pursuing (and cc Scalia, just in case he decides to care). We really need to see the argument that the actions of the government undeniably violate the Constitution.

If one studied the historical circumstances that gave rise to each power, including the power "to regulate commerce ... among the several states", you'll know that it wasn't a socialist-style centrally-planned economy that the Founding Fathers had in mind. That power was given to Congress so that it could eliminate the disastrous trade barriers (customs, tariffs, duties, etc.) between the states and "make regular" (i.e., uniform) all laws affecting trade among the states. ("to make regular/uniform" was the original meaning of "to regulate".)

The "welfare clause" was also distorted far beyond what it originally meant:

"With respect to the two words ‘general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators." (emphasis mine)

--James Madison

"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated." (emphasis mine)

--Thomas Jefferson

In other words, the welfare clause does not mean providing free healthcare, public education, unemployment insurance, retirement pay, etc.

The Founding Fathers could not have added a clear vision of individual rights and capitalism. I mean, the idea was so new at the time that they barely had a grasp of it. But I would still argue that individual rights and capitalism are implicit in the Constitution, particularly in the sections limiting the powers of the government, enumerating individual rights and property rights.

And as for "capitalism", there was no such thing then. Most nations were feudalist, with the overwhelming majority of the population living as subsistence farmers, ruled by a hereditary sovereign. The Industrial Revolution had just barely begun in Great Britain--which was then a mercantilist. I hazard to say that the Founding Fathers inadvertently invented the capitalist economic system by establishing a government that enforced (albeit inconsistently) laws protecting individual rights, including property rights.

I wouldn't call the Constitution a "clear failure". If you ignore the historical and linguistic context that qualify the meaning of every word in the document, if you ignore the whole text and focus on just one clause or word, then yes, you can interpret (as judges do today) the Constitution to mean practically anything.

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Argive99, thank you very much for taking the time to settle my mind on that score. And thank you, Tom Rexton, for elucidating the limitations the founders meant with that “general welfare” clause. Several semesters ago my econ professor struck down a portion of a paper of mine opposing statism, going on about how that clause gave the left license to push forward their social programs.

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