Yves here. I’m running this Michael Hudson post to provide grist for discussion, but I have to say I have a great deal of difficulty with the premise. In any system of government with multiple jurisdictions, and a Federal-State-local or even merely Federal-State, there will be conflicts in rulings and often conflicts of laws. The Constitution sets forth which areas are ones where the Federal government has sway, and which are the purview of states. But those boundaries are not tidy.
The Supreme Court has issued some profoundly anti-democratic rulings that most would still applaud, such as Brown v. Board of Education, where the court overthrew segregated public schools, which were not just legal but also popular in many states. As for Roe v. Wade, the right to an abortion was already of limited value to poor women in conservative states, since a dearth of free or low cost clinics and 24 hour cooling off periods, which necessitate staying 2 days near the site of the clinic, are big roadblocks for low income hourly workers. But as we also pointed out, other advanced economies chose to deal with the matter of abortion rights via legislation, and in Europe, despite the presence of the Catholic Church, restricting it to the first trimester. But during the 1970s, the time of peak feminism, N.O.W. and other activists set their sights on the sure-to-never-get-done Equal Rights Amendment, and ignored the opportunity to get nearly all the way there by passing legislation securing specific rights, most importantly to equal pay and abortions.
And as for the legislature being the better candidate for protecting the rights of individuals, it was Congress, with Obama’s backing, that ended habeas corpus, a critical protection in English law treated as sacrosanct since 1066. From ACLU:
President Obama signed the National Defense Authorization Act (NDAA) into law today. The statute contains a sweeping worldwide indefinite detention provision. While President Obama issued a signing statement saying he had “serious reservations” about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA, and would not affect how the law is interpreted by subsequent administrations. The White House had threatened to veto an earlier version of the NDAA, but reversed course shortly before Congress voted on the final bill.
“President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law,” said Anthony D. Romero, ACLU executive director. “The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.”
Hudson mentions that the shift of the judiciary came about of a long and hard-fought campaign but after acknowledging that, seems to skip over the implications. The result was not inevitable but the result of New Deal backers, which back then was pretty much anyone, assuming those reforms would never be rolled back and thus ignoring the right shift until it was too late. Of course, the 1970s stagflation discredited (whether correctly or not) deficit spending and the expansive Great Society policies, giving these crusaders a big wind at their back.
What were then radical conservatives, with John Birchers, the Kochs, and the Cohrs family as major players, and they specifically launched and funded a campaign to change jurisprudence in America to be more business friendly. Remember, the great socialist Richard Nixon propose a minimum guaranteed income.
I discuss the establishment and tactics of the law and economics movement in ECONNED. What was then the mainstream and would now be regarded as liberals and the left saw its promoters as marginal cranks, until they weren’t. Hudson mentions the Federalist Society in his piece below, but its existence is a symptom not a cause, and it was founded in 1982, well after the law and economics movement, the initiative to make jurisprudence more conservative, was getting traction One can point to earlier roots, but the law and economics movement started on its road to legitimacy when Aaron Director and Richard Coase founded the Journal of Law and Economics in 1958. But the big leap forward started in the 1970s, when Henry Manne set out to change how law was interpreted by changing how it was taught, and successfully created a cadre of conservative journals and instructors.
Progressives and American social democrats have a tendency to see their political preferences as morally correct and therefore assume that they are marching towards the perfectibility of society. Their sense of virtue blinds them to the fact that how the pie of production is whacked up is more often than not a function of power struggles, not merit or effort or some other way of determining groups as more or less deserving.
Remember it was a Republican president, Eisenhower, who wrote in 1954:
Now it is true that I believe this country is following a dangerous trend when it permits too great a degree of centralization of governmental functions. I oppose this–in some instances the fight is a rather desperate one. But to attain any success it is quite clear that the Federal government cannot avoid or escape responsibilities which the mass of the people firmly believe should be undertaken by it….Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes you can do these things. Among them are H. L. Hunt (you possibly know his background), a few other Texas oil millionaires, and an occasional politician or business man from other areas. Their number is negligible and they are stupid.
It was these very same stupid men who by the mid and later 1960s managed to figure out how to achieve their ends and roll back the very New Deal reforms that Eisenhower saw as unchallengeable. The Powell Memo of 1971 formalized the road map for an open-ended, well-funded campaign to get there.
By Michael Hudson, a research professor of Economics at University of Missouri, Kansas City, and a research associate at the Levy Economics Institute of Bard College. His latest book is The Destiny of Civilization
The Supreme Court’s takeover by “conservatives” claiming to be “originalist” interpreters of the constitution, have led to the most widespread protests since the Franklin Roosevelt threatened to pack the court in the 1930s by expanding its membership with less oppositional judges to create a more democratic majority. Appointed by elected presidents and consented to by Congress, to be sure, the judges’ lifetime tenure imposes the ideology of past elections on the present like a dead hand. But the deeper problem is whether their role is needed at all. Why not permit existing representatives to make laws reflecting the needs of the time? Court judges themselves have pointed out that if Congress doesn’t like the Court rulings, it should pass its own laws, or even a constitutional amendment, to provide a new point of reference.
That is not a practical solution in today’s world, for two reasons. The most obvious one is that Congress is locked in a stalemate, unable to take a firm progressive step because of how far the U.S. political system has deteriorated. This deterioration is largely a result of enormous sums of money corrupting the political process. The problem is topped by a long lobbying effort by corporate and financial interests, mainly via the Federalist Society, to groom and promote judges to serve today’s vested interests. When the Supreme Court asks what the original drafters of the Constitution wanted or meant, they are using these as proxies for today’s ruling elites.
Long before the U.S. Supreme Court’s “originalist” ruling rejecting as unconstitutional laws that most Americans want – on the excuse that they are not what the wealthy New England merchants and southern slave-owners who drafted the Constitution would have intended – classical Greek and Roman oligarchies created their own judicial checks against the prospect of Sparta’s kings, Athenian popular assemblies and Roman consuls enacting laws at the expense of the vested interests.
Sparta had two kings instead of just one, requiring their joint agreement on any new rules. And just in case they might join together limit the wealth of the oligarchs, they were made subject to a council of ephors to “advise” them. A kindred Roman spirit called for two consuls to head the Senate. To ward against their joining to cancel debts or redistribute land – the constant demand of Romans throughout the Republic’s five centuries, 509-27 BC – the Senate’s meetings could be suspended if religious authorities found omens from the flight of birds or other airy phenomena. These always seemed to occur when a challenge to the oligarchy seemed likely to pass.
The historian Theodor Mommsen called this tactic “political astrology.” The most blatant attempt occurred in 59 BC when Julius Caesar was elected consul and proposed an agrarian law to settle some of Pompey’s veterans as well as urban plebs on public land in Italy. Additional land was to be bought from private owners, using funds from Pompey’s campaign in Asia Minor.
Cato the Younger led the Roman Senate’s Optimates who feared Caesar’s (or anyone’s) popularity. Opposing any change in the status quo, he started one of his famous all-day speeches. Caesar ordered him led away, but many senators followed Cato out, preventing a vote from being taken. Caesar then simply bypassed the Senate to put the measure before the Centuriate Assembly, composed largely of army veterans. That was a tactic that the reformer Tiberius Gracchus had perfected after 133 to promote his own land redistribution (for which he was assassinated, the oligarchy’s traditional fallback defense in all epochs).
When Caesar’s opponents threatened violence to block the popular vote, Pompey threatened to use his own force. And when the time came for the Senate to ratify the law, Caesar and Pompey filled the Forum with their soldiers, and a large crowd gathered. Cato’s son-in-law, M. Calpurnius Bibulus was Caesar’s annoying co-consul, and tried to suspend the voting by claiming to see bad omens, making public business illegal.
Caesar overruled Bibulus, based on his own higher authority as pontifex maximus, leading Bibulus to declare the rest of the year a sacred period in which no assemblies could be held or votes taken. But the crowd drove him away and broke his insignia of consulship, the ceremonial fasces carried by his lictors, and beat the tribunes allied with him. Cato likewise was pushed away when he tried to force his way to the platform to block the vote. He and Bibulus fled, and Caesar’s bill was passed, including a clause requiring all senators to take oath to adhere to it. Bibulus went home and sulked, insisting that the entire year’s laws be nullified because they were passed under threat of violence. It was the oligarchy, however, that settled matters by assassinating Caesar and other advocates of land and debt reform.
Athens, which turned oligarchic in the 4th century BC after losing the Peloponnesian War with Sparta, used a tactic closer to today’s Supreme Court by trying to subject laws to conformity with an alleged “ancestral constitution” that presumably should never be changed – at least in a way that would favor democracy. Claiming to restore the supposed constitution of Solon, the Thirty Tyrants installed by Sparta’s oligarchy in 404 BC downgraded the Athenian boule’s governing five hundred citizens into a merely “advisory” group whose views had no official weight.
The great watershed in Athenian history was Solon’s seisachtheia – literally “shedding of [debt] burdens” in 594 BC, cancelling personal debts that bound debtors in near bondage. New demands for debt cancellation and land redistribution remained the primary democratic demands for the next four centuries. Androtion (ca. 344 BC), a follower of the oligarchic Isocrates, went so far as to deny that Solon actually cancelled debts, claiming that he merelyrevalued the coinage, weights and measures to make them more easily payable. But there was no coinage in Solon’s time, so this attempt to rewrite history was anachronistic.
In a similar tradition, the authors of America’s constitution created the Supreme Court to provide a check on the danger that political evolution might lead Congress to pass laws threatening oligarchic rule. There no longer is a pontifex to block democratic lawmaking by claiming to read auspices in the flight of birds or other airy phenomena. Instead, there is a more secular subordination of new laws to the principle that they must not be changed from what was intended by the authors of the Constitution – as interpreted by their counterpart elites in today’s world. This view rejects taking into account how the world is evolving and how the legal system should best be modernized to cope with such change.
I have found it to be an axiom of the history of legal philosophy that if the popular political spirit is for democratic reform – especially supporting taxes and other laws to prevent the polarization of wealth between the vested interests and the economy at large – the line of resistance to such progress is to insist on blocking any change from “original” constitutional principles that supported the power of vested interests in the first place.
The U.S. political system has become distorted by the power given to the Supreme Court enabling it to block reforms that the majority of Americans are reported to support. The problem is not only the Supreme Court, to be sure. Most voters oppose wars, support public healthcare for all and higher taxes on the wealthy. But Congress, itself captured by the oligarch donor class, routinely raises military spending, privatizes healthcare in the hands of predatory monopolies and cuts taxes for the financial rent-seeking class while pretending that spending money on government social programs would force taxes to rise for wage-earners.
The effect of the corporate capture of Congress as well as the Supreme Court as the ultimate oligarchic backstop is to block Congressional politics as a vehicle to update laws, taxes and public regulation in keeping with what voters recognize to be modern needs. The Supreme Court imposes the straitjacket of what America’s 18th-century slaveowners and other property owners are supposed to have wanted at the time when they wrote the Constitution.
James Madison and his fellow Federalists were explicit about their aim. They wanted to block what they feared was the threat of democracy by populists, abolitionists and other reformers threatening to check their property “rights” as if these were natural and inherent. The subsequent 19th century’s flowering of classical political economists explaining the logic for checking rentier oligarchies was far beyond what they wanted. Yet today’s Supreme Court’s point of reference is still, “What would the authors of the U.S. Constitution, slaveowners fearful of democracy, have intended?” That logic is applied anachronistically to limit every democratic modernization from the right of unionized labor to go on strike, to abortion rights for women, cancellation of student debt and the right of government to tax wealth.
Even if Congress were not too divided and stalemated to write laws reflecting what most voters want, the Supreme Court would reject them, just as it sought for many decades to declare a national income tax unconstitutional under the theory of “takings.” The Supreme Court can be expected to block any law threatening the victory of the Thatcherite and Reaganomics doctrine of privatization, “small” government unable to challenge the power of wealth (but big enough to crush any attempts by labor, women or minorities to promote their own interests), a state of affairs that is an anomaly for a nation claiming to be a democracy.
A nation’s constitution should have the flexibility to modernize laws, taxes and government regulatory power to remove barriers to broadly-based progress, living standards and productivity. But these barriers have been supported by oligarchies through the ages. That was why the Supreme Court was created in the first place. The aim was to leave the economy in the control of property holders and the wealthiest families. That anachronistic judicial philosophy is helping turn the United States into a failed state by empowering a wealthy minority to reduce the rest of the population to economic dependency.
We are repeating the economic polarization of ancient Greece and Rome that I have described in my recent book The Collapse of Antiquity. The 7th– and 6th-century BC crisis of personal debt and land concentration led to social revolution by reformers (“tyrants,” not originally a term of invective) in Corinth, Sparta and other Greek-speaking city-states and Aegean islands. Solon was appointed archon to resolve the crisis in Athens. Unlike reformers in other Greek cities, he did not redistribute the land, but he did cancel the debts. He called this the “shedding of burdens” (seisachtheia). It removed the debt-stones from lands cultivated by Athenians. The ensuing 6th century led Solon’s successors to lay the groundwork for Athenian democracy.
But the next three centuries saw the rise of creditor oligarchies throughout Greece and Italy using debt as a lever to monopolize land and reduce citizens to bondage. These increasingly aggressive oligarchies fought, with more and more overt violence, against new reformers seeking to cancel debts and redistribute the land to prevent the economy falling into austerity, clientage and reliance on the dole. Their ideology was much like that of today’s right-wing Supreme Court’s approach to constitutional law. The common denominator is an age-old drive to prevent democratic change, above all by using wealth as a means of controlling the political process. That is the philosophy outlined in the Powell Memo, and in the Supreme Court’s Citizens United ruling permitting the political campaign system to be financialized and, in effect, privatized in the hands of the Donor Class.
As in classical antiquity, today’s the exponential rise in debt has polarized wealth ownership. Personal debt bondage no longer exists, but most home buyers and wage earners are obliged to take on a working-lifetime debt burden to obtain a home of their own, an education to get a job to qualify for mortgage loans to buy their home, and credit-card debt simply to make ends meet. The result is debt deflation as labor is obliged to spend an increasing proportion of its income on debt service instead of goods and services. That slowis the economy, while creditors use their rising accumulation of wealth to finance the inflation of housing prices, along with stock and bond prices – with yet more debt financing.
The conflict between creditors and debtors is a red thread running throughout American history, from the Whiskey Rebellion of the 1790s to the monetary deflation of the 1880s as “hard money” creditor interests rolled back prices and incomes to be paid in gold, increasing the control of bondholders over labor. U.S. debt and tax policy is passing out of the Congress to the Supreme Court, whose members are groomed and vetted to make sure that they favor financial and other rentier wealth by leading the Court to impose the founders’ pre-democratic philosophy of constitutional law despite the past few centuries of political reforms that, at least in principle, have endorsed democracy over oligarchy.
The victory of rentier wealth has led to the deindustrialization of America and the resulting predatory diplomacy as its economy seeks to extract from foreign countries the products that it no longer is producing at home. This is why foreign countries are moving to pursue a philosophy rejecting debt deflation, privatization and the shift of economic planning from elected governments to financial centers from Wall Street to the City of London, the Paris Bourse and Japan.
Any resilient society’s constitution should be responsive to the evolution of economic, technological, environmental and geopolitical dynamics. U.S. legal philosophy reflects mainstream economics in trying to lock in a set of principles written by creditors and other rentiers fearful of making the financial system, tax system and distribution of wealth more conducive to prosperity than to austerity and economic polarization. There no longer is an attempt to roll back the clock to impose the outright slavery in which most framers of the Constitution endorsed, but the spread of debt deflation and debt dependency is becoming a form of economic bondage that is the modern “conservative” counterpart to what the “original” power elite are thought to have wanted if we chose to get into a time machine and ask them instead of looking to a less oligarchic future.
 The Lewis Powell memo to the U.S. Chamber of Commerce on August 23, 1971 laid out this plan. https://www.greenpeace.org/usa/democracy/the-lewis-powell-memo-a-corporate-blueprint-to-dominate-democracy/. For a review of how this almost conspiratorial propaganda and censorship attack was financed see Lewis H. Lapham, “Tentacles of Rage: The Republican propaganda mill, a brief history,” Harpers, September, 2004. Available at: http://www.mindfully.org/Reform/2004/Republican-Propaganda1sep04.htm.
 See Cassius Dio, Roman History 38.2.2. I discuss this affair in The Collapse of Antiquity, chapter 18.
 Athēnaion Politeia 35.2 and Xenophon, Hellenica 2.3.2 and 11.
 Plutarch, Solon 15.2.