Tuesday, 2 November 2010
Laissez-Faire Constitutionalism and Liberal Constitutionalism: What They Are and What They Can Teach Us
When most people hear someone start talking about the application of different Constitutional theories by the Supreme Court, they immediately fall asleep. And why not?
Well, there's a very good reason. The Supreme Court has never functioned as an independent branch of government, as an institution that is somehow able to transcend political bickering and see to the "truth" of the issues, and yet, this is exactly the image that is taught to American school children. It feeds into concepts of moral absolutism--that the morals of the capitalist class apply to everyone and do not change.
Of course, this is never true in practice. Marx's method of historical materialism is the only adequate explanation for the waffling of justices, the changes in Supreme Court opinion, and the fluctuation in levels of animosity and aggression towards the other branches of government.
For the purposes of this very brief argument, I'd like to look at the era between Reconstruction and World War II, a time scholars typically depict as being a time during which the Supreme Court swings between Laissez-Faire Constitutionalism and Liberal Constitutionalism. This superficial argument, of course, assumes that the two are opposites and in constant conflict with each other. They aren't.
Laissez-Faire Constitutionalism refers to "hands off" policies, generally directed toward economy rather than civil rights (where the government infamously loves to be very hands on). From the 1870s to the 1930s, when the United States was rapidly industrializing, this Constitutional interpretation centered around the "liberty to contract," and it would be used to abolish minimum wage laws (Adkins v. Children's Hospital, 1923 and Morehead v. NY, 1936), limits on hours worked (Lochner v. NY, 1905), and other protections for workers (Child Labor Cases, 1918). It would also be used to rule the Sherman Anti-Trust Act unconstitutional (U.S. v. E.C. Knight and Co., 1895). It was ultimately in favor of radical free markets, much like those that Milton Friedman would advocate as a tool of imperial conquest later in the century.
Liberal Constitutionalism represented the legal interpretations of Keynesian economics. It allowed more government involvement and would be utilized to decide such cases as Holden v. Hardy (1898), which allowed for federal regulation of protections for miners; Hoke v. US (1913), which decided that morality was something that could be controlled by the states and Congress; and Muller v. Oregon (1908), which set out women as a group in need of special protection in the workplace by the government.
That is not to argue in any way that these were the decisions of progressives, or that they present a radically different constitutional outlook from the Laissez-Faire constitutionalists. It only appears that way if you take the cases out of historical context, if you do not analyze the class interests in each case and also take into account the strength of working class movements.
For example, the line is blurred in the Slaughterhouse Cases of 1873, where the Court ruled that the state government did have the right to regulate individual businesses and mandate health regulations for workers, but it did not have the right to do so over corporations. The Court was less interested in expanding protections for workers than it was with increasing the power of corporations--an agenda it would continue to pursue all the way to the present day with decision in Citizens United v. Federal Election Commission (2010). The Slaughterhouse Cases do not clearly represent liberal or Laissez-Faire interpretation, but they do represent the interests of the ruling class and the expansion of capital.
In fact, the Court's siding with corporations goes so far as to declare that corporate interests are public interests--not in line with, or nearly the same, corporate interests are public interests (Munn v. Illinois, 1877 and Santa Clara County v. Southern Pacific Railroad Co., 1896). Ergo, corporations are favored over workers (obviously) and even individual capitalists (less obviously, but somewhat predictably), especially when they dare to challenge the power of the growing corporate world.
Later cases that clearly fall into the liberal category were decided during the Great Depression, when massive resistance from workers and the need to prop up a dying economy necessitated the allowance of the National Labor Relations Board (NLRB v. Jones and Laughlin Steel Corp., 1937) and the institution of a nationwide minimum wage (US v. Darby, 1941). Again, this change occurred not because the ruling class had suddenly and inexplicably taken to heart the interests of workers, but rather, the growing and rapidly radicalizing labor movement necessitated it. Capitalists also knew that caving to Roosevelt's agenda was the only way to maintain their businesses. Roosevelt was forced to give in to the workers, and the businesses to Roosevelt.
[For more on this relationship, read Sharon Smith's fantastic book "Subterranean Fire: A History of American Working Class Radicalism.]
The application of the historical materialist method, is of course, much easier in cases where the economy was the direct stake, and even academics who do not identify as Marxists will often draw this very conclusion.
The difficulty comes when we then enter the civil liberties cases of the era. How do we place cases like Patterson v. Colorado (1907), which established the precedent of the "bad tendency test," or Schenck v. US (1919), which established the infamous "clear and present danger" test that Oliver Wendell Holmes later tried to constrict in Abrams v. US (1919)? What about later cases during World War II: Minersville School District v. Gobitis (1940) when the Court held it was Constitutional to force a student to pledge allegiance to the flag for preservation of national purpose and unity; or the internment cases (Hirabayshi v. US, 1943; Korematsu v. US, 1944; and Ex Parte Endo, 1944) where the Court ruled that internment was legal and acceptable?
A simple two sided economic coin does not explain these decisions. However, if we view Laissez-Fair Constitutionalism and liberal constitutionalism as two facets of the same thing--the interests of the ruling class-- we are much better prepared to situate these cases. As the Court moved away from the interstate bickering among the ruling class in the antebellum and Civil War period, the Court was much more able to focus on attacking workers, and particularly the radicals among them. It became a tool of class war rather than a venue for bickering between industrial capitalists and agriculturalists (read: slave owners). Because the Court represented the now consolidated interests of the ruling class, the antagonism between the Court and other branches of government waned--until Roosevelt had his feet roasting in the fire in the 1930s--and the decisions of the Court became more regularly enforced. (Previously, presidents from Jackson to Lincoln had ignored Court decision when it suited their interests to do so because the Court has no way to enforce its decisions.)
And of course, our understanding of this history can't be confined to the period in which it was occurring. It holds many lessons for us today.
First that radical free marketism and Keynesian economics are not the mortal enemies of one another. In fact, Keynesian economics justified the bank bailout. Because mass movements on the ground were unable to apply the necessary pressure, we didn't get the needed help for the unemployed, hungry, and homeless instead. One approach to changing this would be the mass organization of unemployed people in unemployed unions. Organizations of people on the ground can fight the policies. They have done so in the past--winning things like rent control.
Second, the Court, merely by claiming to interpret the "language" of the Constitution is pursuing a ruling class agenda. The language of the document was written with the interest of the wealthy at heart. It was determined to divide society into the haves and the have-nots. This means we cannot rely on the Court to help us in our fight for justice, particularly because they are not elected and have a life-long tenure. Sometimes a moral compass or a progressive reading can act on justices to influence their decisions, but this is far too unreliable. While some judges have made progressive rulings on issues like DADT, gay marriage, and against the most heinous portions of SB1070, other judges will try to overrule them. Relying on court cases to win battles against injustice will inevitably fail.
Finally, the Constitution and the ways in which it has been interpreted can be an important tool in radicalizing people. Material analysis of American constitutional and legal history shows the ways in which the class state expands and perpetuates oppression and deepens class divisions. If we can make the argument that the Court is not an independent and unbiased entity, but a political tool of the ruling class, we can show the ways in which the ruling class has attacked us again and again throughout history, and we can deconstruct the rhetoric of oppression and exploitation.