A Supremely Limited Vision of Freedom

All eyes are on SCUTUS this week as they take up the case of Arizona’s draconian immigration law (SB1070). By the end of this session, the Court will have ruled on a wide range of social and economic issues, including health care, immigration and Affirmative Action. We can expect to see a pattern of radical --- dare I say 'activist' --- jurisprudence from the Roberts Court.

Just weeks before SCUTUS agreed to take on another closely-watched case --- a challenge against provisions in the Affordable Care Act (ACA) --- legal scholar Jedediah Purdy looked for patterns in recent rulings. Purdy found evidence of what he calls a radical laissez-faire jurisprudence. The Roberts Court is consistent in ruling against regulatory actions that are intended to square private economic power with the public good in a time of growing political and economic inequality.

The Roberts Court’s jurisprudence rests on a set of assumptions that are a throwback to the Gilded Age: markets are a natural phenomenon, arising from organic principles and free human action. Politics and lawmaking are artificial interferences in this natural phenomenon. Lessons from the 20th century's depressions and recessions seem to be lost on the current Court. In most advanced economies, including our own, social-democratic principles help us balance out private and public interests. The court’s willful rejection of the social nature of markets is a threat to most of the progress that has been made over the past 80 years, and it does not bode well for the future.

The Lochner Era and the Roberts Court

Purdy begins with a useful historical reference-point for understanding the Roberts Court: the early 20th century Lochner Era of radically pro-market jurisprudence. Lochner Era decisions struck down minimum wage, child labor and maximum hours laws as violations of ‘economic liberty.’ Lochner reflected an unshakable belief in the sanctity of the private contract, including those between employers and employees. By this logic, minimum wage interferes in workers’ freedom in the same way it affects the bosses' freedoms.

The Lochner Era decisions assumed that everyone was equally free to participate in markets. But everyone wasn’t equally free. As a consequence, the Court's rulings protected those with the greatest economic power by tying the hands of government, leaving lots of groups of people less free.

The Roberts Court calls into question whether government can regulate the information economy in much the way that Lochner era rulings beat back regulations of the industrial economy. Then and now, the Court abided by the same logic of “giving constitutional protection to unequal economic power in the name of personal liberty.” The Roberts Court's recent rulings suggest that legislative restrictions on market activity are tantamount to censorship.

Twisting the First Amendment

Freedom of speech is a bedrock principle meant to keep public debates open and diverse. It is deemed to be critical for democratic functioning of society. At times, defending free speech has been a point on which liberals and conservatives have found common ground. But now it has been turned against liberal and progressive programs. The Roberts Court uses the First Amendment as a tool to further the power of unaccountable corporations and financial institutions. According to recent rulings, this SCOTUS thinks that protecting free speech means protecting campaign spending, advertising, and even the information that marketers collect and that advertisers use to craft their messages.

Since Citizens United, most of us have become much more aware of the consequences of elevating campaign contributions to the status of protected speech. This principle was given legitimacy back in 1976. Buckley v. Valeo overturned limits on individual spending as restrictions on free speech. This and subsequent rulings established the principle that spending equals speech. Citizens United gave us the most blunt articulation of the principle by declaring that corporations’ “political speech” (spending) enjoys the same protection as an individual’s speech. According to the majority opinion: “The government has muffled the voices that best represent the most significant segments of the economy.” Hmmm. This suggests that corporations’ political speech is more important than an individual’s speech.

It goes beyond campaign spending. In 1942, the Court affirmed that commercial advertising did not enjoy First Amendment protection. By 1976, court rulings were starting to entertain the idea that commercial speech is comparable to political speech. Recently, the Roberts Court has struck down limits on advertising for legal services, liquor stores and tobacco products. Distinctions between advertising and political speech keep getting blurred.

The First Amendment also is being used to protect data mining, and the uses to which companies put the information they obtain. In a precedent-setting case, Sorrell v. IMS Health, the Court struck down a Vermont law designed to protect the privacy of doctors and their patients. Vermont tried to ban the sale of prescription information and its use in marketing. Apparently, pharmacies and data-miners sell doctor’s prescription records to drug marketers. The Court said Vermont’s ban placed a burden on marketer’s speech in a way that tilted the debate in a preferred direction. A statement in the ruling clearly equates marketing with political speech: “The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish.” In other words, targeted sales pitches make vitally important contributions to the “public debate.”

It would seem that the right to buy and sell the information that will go into marketing trumps all other concerns: individual privacy, public health, even our nation’s financial health. This makes unequal economic power harder for lawmakers to reach. It further shrinks the already limited options that we have for reducing inequality, which currently include redistributing wealth, guaranteeing access to essential goods and services (such as education, health and housing) regardless of wealth, and limiting what the wealthy can do with their money. The current uses of the First Amendment take the third option off the table by claiming it is unconstitutional, at a time when the first two options are embattled.

Judicial Activism and Healthcare Reform

It is within this context of using the First Amendment to blunt regulation that the Court is now considering the case against the ACA. The precedent that prior cases have set will come into play in this particular case because they establish a doctrine in which the only forms of ‘freedom’ that matter are those having to do with buying and selling, where consumer choice is elevated to a sacred right.

Back in the Lochner days, courts argued against child labor laws by saying that, if Congress is allowed to regulate child labor, “all freedom of commerce will be at and end.” In the case against ACA, petitioners argue that the individual mandate violates individual consumer’s autonomy. If Congress is allowed to impose an insurance mandate, consumer liberty will be at an end. Which assumes that there is a constitutional right of consumer liberty. By this logic, the purest expression of individual liberty is our right to buy or not to buy things, and the government cannot compel us to buy anything. But, in fact, states can, and do, make consumers buy things in the name of public safety. Still, the petitioners claim that a precious liberty is at stake. If we allow Congress to violate it, what’s to stop Congress from making us eat broccoli? We are on the road to tyranny, for sure. But if this is such a precious liberty, enshrined in the Constitution, why are states allowed to violate it?

This gets to the heart of the Right’s mistrust of the Federal government. The Right uses the Constitution as its proving ground on matters of liberty because they do not trust the political process. What is the Constitution meant to do? Is it meant to provide a framework for governing (one that can adapt to changing times) or is it meant to serve as the ‘higher power’ that is called down upon our elected representatives? As Purdy notes, in the ACA case, we see the laissez-faire intellectual climate and the political climate of enraged populism coming together.

If you believe, as the Right does, that the Constitution is an immutable document and that the Supreme Court is the priesthood that invokes this higher power to rein in elected representatives (who should and could be reined in by voters, if we really believed in democracy), then you are going to split every hair related to what Congress is authorized to do by the Constitution. Some things are prohibited by ‘rights-protecting’ language, like the First Amendment. Other things may be deemed prohibited because they do not appear on the Constitution’s list of Congressional Powers. The individual mandate is said to be unauthorized because it’s not on the list. For decades, Congress has used the Commerce Clause to justify its actions with regard to balancing private power and public purpose. The Right now sees an opportunity to greatly narrow the scope of the Commerce Clause and further curtail Congress’s ability to regulate economic activity.

Expanding our vision of freedom beyond cosumer autonomy

In the laissez-faire approach to the law, everything works best on market logic. As Purdy notes, “There is no publicly acceptable measure of value except what people say they want and are willing to pay for.” Insisting on other standards, such as fairness, equity or sustainability, puts us on the road to tyranny.

When economic models of behavior are the only ones that matter, the only form of freedom that matters is market freedom. Taken to its logical conclusion, we are no longer ‘citizens,’ in the broad sense of the word. We are merely consumers.

The intellectual dishonesty behind this brand of jurisprudence masks power dynamics in society, and especially the ways in which entrenched power works to shape and constrain our choices. What does choice mean when you have no power on the job? What kinds of choices did child laborers have? Labor market regulations gave workers more attractive choices. And they did so by using government as a counterweight to corporate power.

By protecting consumer autonomy from government interference, the Court’s jurisprudence helps guarantee that the inequality of the private marketplace will persist. What they don't seem to get is that rising inequality and diminishing democracy make consumer autonomy less worth having.

What does this suggest for our struggles today? All that we do, to try and hold banks and corporations accountable, to create conditions for a moral economy, and to dismantle structural racism, must elevate a wider vision of freedom. For freedom to have meaning, equality and personal liberty must go hand-in-hand. We need democratic governance that addresses social, racial and economic inequality. Right now, the Supreme Court is standing in our way.