what happens when that crazy law professor gets on the judiciate

The New York Times > Magazine > The Unregulated Offensive

yesterday i mildly freaked out that the newly vocal movement to pack our supreme court with hardline theocratic social conservatives was picking up steam. this morning, it's the Constitution in Exile movement. it encourages judges to 'strike down laws on behalf of rights that don't appear explicity in the Constitution.' so...things like OSHA, the EPA, Social Security, the FCC and the National Labor Relations Board -- all struck down as unconstitutional. here's a little bit about it:

If they win -- if, years from now, the Constitution is brought back from its decades of arguable exile -- and federal environmental laws are struck down, the movement's loyalists do not expect the levels of air and water pollution to rise catastrophically. They are confident that local regulations and private contracts between businesses 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. Historic districts, as they see it, will not be eviscerated if zoning laws are scaled back, but they do imagine there will be fewer brownstones and more McMansions. In exchange for these trade-offs, they insist, individual liberty -- the indispensable guarantee of self-fulfillment and happiness -- would flourish far more extensively than it does today.

Of course, there would be losers as well as winners in a deregulated market economy, and history provides plenty of reasons to be concerned about the possibility of abuse. Even the relatively modest deregulation of today's increasingly global and fluid U.S. economy may provide something of a cautionary tale. From Enron to illegal trading by mutual funds and bid-rigging in the insurance industry, corporate scandals are keeping consumer advocates like Eliot Spitzer quite busy. America, at the moment, is engaged in an important debate about the relative merits and dangers of the market economy, and the advocates of the Constitution in Exile are aware that they cannot achieve ultimate success without persuading a majority of the American people to embrace their vision.

Notice their blindnesses: once federal laws are rolled back to pre-New Deal levels, there won’t be considerable increases in pollution, worker deaths/injuries, or labor exploitation. They are confident that communities and private contracts will be able to reign in the larger excesses of the ruler class. Instead of relying on unions to bargain collectively for them, workers will show scrappy derring-do and negotiate with their employers in good faith, because we all know that’s what capital interests and those who hold them do – bargain in good faith.

These are the dreams of men who have no grasp of reality. These are the fantasies of men who’ve lived far too long in dusty rooms. These are the desires of men who want to see the world rolled back to place where workers, women, the poor, immigrants were fodder for business. (Read a good history book, people!) And people of color? Invisible. These are men who remain ignorant to the lessons of history, to the lessons of basic human behavior.

Where is the call for government to operate in the best interest of all – not just the monied few? To protect against the rapacious appetites of industry and private enterprise? This judicial vision, which one administration official calls ‘close’ to the administration’s own, is one built with the Winners in mind; for a moment let’s imagine a world where the Winners get everything they want and let’s be very angry and afraid.