June 29, 2005

Economic Right and the Supreme Court

The Kelo case emphasizes something long-forgotten: the Supreme Court has as much trouble with economic issues as social ones. While the biggest cases are usually social, like abortion and religion, and most cases are procedural or criminal, a good deal of them have economic impacts. The biggest one is affirmative action, but Kelo is the sort of thing that could make a great deal of homeowners and small business owners uneasy. While many uses of eminent domain are against neighborhoods or homes, it's very common for small businesses to be replaced by bigger and/or more tax-generating businesses.

Of course, the wider fact is that the Supreme Court is so hostile to economic rights and business interests that it's a much more of a long-shot issue than throwing abortion back to the states or allowing more public prayer. Economic libertarians have normally been very marginalized in the legal community and have not mobilized with regard to nomination battles. There are legal scholars who espouse Lochner-style solutions to property and economic rights, but there's almost no real grassroots movement on the issue. Even the Institute For Justice, effectively the only libertarian public interest law firm (the ACLU is NOT libertarian, it's radical) is forced to spend its time on other issues. I'm not even sure if they take a positive view of Lochner or not, which is irrelevant because they'd have a hard time getting it back.

It's clear that the economic libertarians (social conservatives som etimes call them 'business conservatives' but conservative is a misnomer here) are not nearly as interested in the court nomination battles as the social lefties and the social conservatives. Given Kelo, I think it's clear that they should start taking an interest.

However, that doesn't necessarily mean they'll be aligned with the social conservatives. It's clear that the Democrats are incredibly hostile to economic and property rights, as some of Bush's nominees have been chastised for allegedly opposing zoning laws and eminent domain (which isn't necessarily true). Janice Rogers Brown, moreover, called the New Deal America's own socialist revolution, which received ire from the left.

But it's not immediately clear that the social conservatives are the right way to go here. They attack Roe and Casey not because they attack the foundation of legal personhood, but because they infringe on ... states' rights? They don't want to declare fetuses have a right to live, only that the federal government has no business on the issue (which could very well see abortion largely legalized in 30-odd states). They want to strip away unenumerated rights like privacy. Rather than using a framework of liberty to protect the unborn, they are attacking the structure that allows legalized abortion instead of the creators. The effect on strengthening economic rights like property is that they are

The political left espouses a very inconsistent and lopsided view of constitutional liberties that gives strong protections to unenumerated social rights but a great degree of latitude to the government on economic issues. The political right largely espouses an intellectually consistent view of strictly interpreting the laws - which means finding pretty weak rights all around, whether social or economic. This lets the social conservatives pass whatever interventionist laws they want at the state level, but it doesn't help small business owners when their state comes knocking on their door.

On the recent issue of eminent domain, it's true that social conservatives are angry about it and wnat it overturned. Their idea hgere is informed largely by the strict interpretation of "public use," but it does create a clear, particularist nexus between social conservative and business libertarians. The fact that it exists on one high-profile case doesn't mean it extends elsewhere, or that economic libertarians can expect much from nominees tailored to social conservative demands.

The compromise, then, is to pick nominees that can bridge the gap between the social and economic spheres of the GOP base. For a Supreme Court Justice, this might mean someone who strongly endorses Lochnerian unenumerated rights but uses them against abortion, and someone who takes a laissez-faire attitude to religious statues but a more hostile one to private-benefit eminent domain. Compromise is less likely, though, while the capitalists in the GOP stay either on the sidelines or in generic pro-nominee groups. Those advocating more rulings for economic freedom from the Supreme Court need to form an independent pressure group to make sure that our views are reflected in the nominees.

The culture war gets a lot of play in the media reports on judiciary battles, and it's time for the long-lost economic freedoms to truly re-enter the debate on nominations.

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