Monday, February 10, 2014
Supreme Rule Of Law From The High Court
Tonight's Commonwealth Club talk on the Supreme Court by the publisher of SCOTUSblog was an excellent inside view into the mechanics and personalities of jurisprudence. I am no legal scholar, so I can't weigh in on how to define concepts like the doctrine of privacy and personal autonomy. I analyze text and data before I make intuitive leaps, and legal doctrine without a textual confirmation is beyond my ability to define. The historical observation that the SCOTUS likes executive authority, and defers to it when national survival is at stake, deserves its own cultural context.
Two recent Supreme Court decisions influence the financial subject matter I address on this blog. The first is Citizens United v. Federal Election Commission, which removed any restrictions on corporations' independent political expenditures. The second is National Federation of Independent Business v. Sebelius, which upheld the individual mandate for health insurance as a constitutional tax. These two decisions have handed large corporations an enormous amount of power of the lives of individual Americans. Private citizens cannot outspend a business lobby on campaigns. Private citizens can be legally compelled to purchase goods and services.
The two cases above are different in specifics from the Court's traditional deference to executive prerogatives but they are cut from the same cultural cloth. Corporate capture of the executive's regulatory structure is so obvious as to be unremarkable. The individual citizen is now subject to the whims of plutocracy in potentially any aspect of life. Persistent surveillance programs make this control more pervasive than ever. I do not know the SCOTUS's role in reviewing mass digital surveillance, so it will be interesting to watch them deliberate in the event a case is ever on the docket. Sen. Rand Paul wants to get them a case ASAP.
The inside baseball on the SCOTUS justices' conviviality was remarkable. The justices get along despite their ideological differences. They all share common cultural outlooks that easily fit urbane, cosmopolitan habits. Their universal lack of rural roots explains their reluctance to embrace an expansive interpretation of the Second Amendment. That is a small symptom of the gulf between the urban elite and the rural proletariat. Our national fascination with "Duck Dynasty" notwithstanding, the coastal media elites just can't grok the culture of flyover country. The Supremes' outlook reflects this plutocratic sensibility.
I must remind my readers that the US ranks 19th on Transparency International's Corruption Perceptions Index and 12th on the Heritage Foundation's Index of Economic Freedom. The world's largest economy in GDP is not number one in the rule of law. Supreme Court rulings that entrench the power of elite economic institutions will likely further erode these US rankings. Americans don't seem to mind as long as a redistributive tax system supports entitlement programs. Readers of the Alfidi Capital Blog know that those entitlements cannot count on indefinite funding. Supreme Court deliberations may not be sufficiently expansive to consider the socioeconomic effects of legal precedents that allow elite entrenchment.
The Founding Fathers were plutocrats themselves but they never envisioned government as an agent of wealth redistribution. They did envision the Supreme Court as a balance to executive and legislative power. They also envisioned the Bill of Rights as a popular balance to the government's power. The balance tips in favor of the executive and its captured bureaucracies with every deference to executive power and its corporate support. An indefinite crisis atmosphere makes for indefinite deference. Today's plutocracy is not as wise as our original Founders but has more complete control mechanisms. Americans should know the role of today's Supreme Court but that asks too much of a supine people.