Guest Post by Morbo
I know that Halloween is more than six months away, but if you want a good scare right now, read Jeffrey Rosen’s article “The Unregulated Offensive” in last week’s New York Times Magazine.
Rosen examines a fringe legal theory held by members of an extreme Libertarian sect called the “Constitution in Exile” movement. In a nutshell, these people argue that the modern-day welfare state, the minimum wage, most labor laws, pollution-control statutes and business regulations generally are unconstitutional. As the theory goes, such laws and regulations interfere with an alleged “economic liberty” interest lurking somewhere in the Constitution.
In 1905, the U.S. Supreme Court, then in the grip of extreme free-market ideology, struck down a New York law that established a maximum number of working hours for bakers. The legal theory enunciated in Lochner v. New York — business can do pretty much whatever it damn well pleases — gradually faded away and was eventually repudiated by the New Deal-era Supreme Court, which held that government has the right to regulate commerce to protect workers, ensure a decent standard of living and generally make life bearable.
Adherents of the Constitution in Exile movement want to go back to the finding of Lochner. The Constitution, they assert, protects “economic liberty” and thus such efforts at regulation are unconstitutional.
Janice Rogers Brown, a California Supreme Court justice whom President George W. Bush has nominated for a spot on a federal appeals court, is sympathetic to this movement.
Known for her vigorous criticism of the post-New Deal regulatory state, Brown has called 1937, the year the Supreme Court began to uphold the New Deal, “the triumph of our socialist revolution,” adding in another speech that “protection of property was a major casualty of the revolution of 1937.” She has praised the court’s invalidation of maximum-hour and minimum-wage laws in the Progressive era, and at her Senate confirmation hearing in 2003, she referred disparagingly to “the dichotomy that eventually develops where economic liberty — property — is put on a different level than political liberties.”
I am convinced that Libertarians exist is some sort of parallel universe — or perhaps a Bizarro World would be a more likely analogy — where lessons of history and simple common sense have no meaning. In fact, much of our history never happened at all in this strange universe. How else to explain their belief that an unregulated business atmosphere will somehow protect workers, maximize profits and clean the environment all without government lifting a finger?
The extreme Libertarians’ biggest mistake is in assuming that humans are nothing more than homo economicus (“economic man”) and that making money and stockpiling consumer goods is the highest and greatest virtue to which humanity can aspire. Because they reduce the sum total of all existence to a mad scramble for cash, the Libertarians naturally must tear down anything that stands in the way of the pursuit, not of happiness, but of the Almighty Dollar.
This philosophy reached its apex in the didactic, poorly written novels of Ayn Rand, whose characters actually smoke cigarettes embossed with dollar signs. In the turgid Atlas Shrugged, her bold free-market heroes bring society to its knees by withdrawing their brilliance and hiding away in a remote mountain somewhere, leaving America at the mercy of statist, big-government loving creeps who, in her books, have all the depth of a cardboard stand-up figure of “Star Trek’s” Captain Picard.
Having slogged through this tome in my misspent youth, all I can say now is, bring on the mountain hideaway. The sooner we ship these loons off the better. Please withdraw from society, I’m begging you. We don’t deserve your brilliance. Isn’t there an island somewhere they can take over? Can we build them a moon-base? (They can erect it with workers who don’t make minimum wage. I’m sure it will stand for at least a week.)
Rosen writes of the Libertarians, “They are confident that local regulation and private contracts between business and neighbors will determine the pollution levels that each region demands. Nor do they expect vulnerable workers to be exploited in sweatshops if labor unions are weakened: they anticipate that entrepreneurial workers in a mobile economy will bargain for the working conditions that their talents deserve.”
What planet are these people living on? Is that entire planet full of naive morons? When has anything like what they describe ever happened anywhere?
Business and neighborhoods will negotiate over pollution levels? No they won’t. Business leaders will instead go to Tom DeLay, send him on a few golf trips to Scotland and win a law that will allow them to pump as much pollution into the air as they want.
Workers will negotiate their terms of employment? All workers? Skilled surgeons and ditch diggers alike?
Please, go look at societies that don’t bother to regulate industry. Why is it that instead of unleashing the power of humankind’s imagination through the awesome energy of the free market and creating utopia, it always ends up with some guy in a cheap suit overseeing a roomful of emaciated children who make 79 cents a day sewing sneakers for export?
Rosen notes that Brown’s parents were sharecroppers. I wish they had tried the stunt the Libertarians recommend. I wish they had walked up to their overlords and said, “We don’t really care for the low pay and long hours of this sharecropping job. In fact, we believe we’re among the best sharecroppers available, and thus feel certain that our sharecropping skills are worth more than the current market suggests. Therefore, we’d like a living wage, fewer hours, fully paid health care, two week’s vacation and sick leave. Please give these things to us posthaste or we’ll go sharecrop for someone who will!”
I try not to dismiss right-wing arguments out of hand. After all, I might learn something by examining them. But some of their assertions are merely absurd and not worthy of further consideration. The Constitution in Exile movement falls into this category.
Of course, that will not stop it from possibly becoming the operational philosophy of the Supreme Court by 2008.