Laissez-faire economics is the name given to unregulated business activity based on the notion that government should keep "hands off" entrepreneurs, capitalists, and management to run their investments the way they please and let the poor working stiff, man, woman, or child, take the hindmost.
It must've sounded in the Victorian age when no one gave a damn about children working in factories except the factory owner who cared that they worked longer and faster. Forget about school, food, and medical care, turning out product for the world market is what counted.
We imported that attitude along with the steam engine and spinning jenny. In the boom following the Civil War we produced the age of the Robber Baron, followed by the Lochner Era of Constitutional Law which put the interests of the dominant class, the old Yankee WASP hierarchy that owned and ran factories, education, religion, and government in this country, by and large. Yes, this group was shoved somewhat aside following the assimilation of masses of immigrants 1845-1920, but not until the descendants of the immigrants were sufficiently assimilated to pass. Melted, in other words, this being the so-called melting pot. Perhaps salad bowl is a better analogy, as we still take pride in our ethnic strengths, including religion and cuisine.
In order for the working man (and woman and child) to achieve a measure of protection, decades of labor strife were required. Today the teamsters and service employees unions have split away from the AFL-CIO, the conglomeration of worker unions put together to give members a fighting chance against employers. Why the split? Because the unions are losing membership and the AFL-CIO hasn't figured out how to stop the bleeding and recruit new members.
Perhaps they're a victim of their own success.
Today we have laws protecting workers. No child labor, fair labor standards, minimum wage, maximum hours, no take-home, piece-work, protection for union activity, time-and-a-half for overtime, occupational health and safety requirements including hard-hats, goggles, and safety shoes, anti-discrimination, and so forth.
If you have the Feds looking out for you, perhaps you don't need a union, I'm not sure why people don't join unions. Walmart keeps unions out and workers make the minimum wage. We pay for their medical and SSI, not their employer. We're subsidizing Walmart, the biggest merchant in the country, with 3,400 stores. Why are we bailing out Walmart, I wonder.
I thought that big business took care of itself and didn't look to government for a bailout. I thought that when Chrysler was on the verge of bankruptcy and its president, Lee Iacocca, went hat-in-hand to Washington and said, unless you bail me out, assembly line workers are going to lose their jobs. We bailed him out.
We let Arthur Anderson go down the toilet, however. A young attorney there had the misfortune to advise her client (Arthur Anderson, the accounting giant) honestly and correctly that it was the duty of the employees to follow the document policy. Documents need to be destroyed if we don't want to pay storage and handling on a mountain of documents that are no longer relevant to the conduct of the business, although they may be of interest to government investigators wishing to prove a criminal case down the road apiece. So, if the CPA prepares a tax return, it is the tax return that needs to be saved, not the boxes of coffee-stained work papers used in preparing the return. They can be destroyed, in good faith, routinely, along with the brown bag lunch remains and paper napkins. This is routine.
The hapless attorney, however, provided her advice to follow the guidelines just as Anderson's big client, Enron, was in the griddle for fudging the books, so it looked like the attorney was, or might have been, trying to fudge the books. Anderson is convicted and appeals to the U.S. Supreme Court. Meanwhile it goes bankrupt and that carcass is cut up and distributed. There's nothing left except that Anderson had a good name, 22,000 employees, and a lot of good will.
Wouldn't you know, the Supreme Court reverses the conviction as the attorney, and Arthur Anderson, acted in good faith and the government didn't and couldn't prove otherwise.
Like Humpty-Dumpty, all the kings horses and all the king's men, couldn't put Humpty-Dumpty together again.
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Why is it, I wondered a long time ago, that it is socialistic and communistic to want to do something to protect the working man, but not to come to the aid of a large corporation?
Why is it okay to bail out Chrysler when it nears bankruptcy but not Joe Blow who wasn't a good businessman either? Joe Blow's employees take gas along with him, but not Lee Iacocca's. I didn't get it.
How is it okay to send the Marines to Central America to bail out United Fruit, but that is not called corporate welfare?
Yet a black welfare mother is called a welfare queen by Ronald Reagan?
Or we subsidize farmers today when the farm program was instituted during the Depression when farmers were starving. Today we don't have farmers, we have agribusiness. You and I buy them water so they don't have to pay the fair market, unsubsidized, value, but we do for their product. Shouldn't we get a discount for the water and the subsidy?
Why isn't that farmer-welfare?
What about the sugar tariff and the cotton subsidy for growers who are so big that they can tell Congress what they need next year, and get it, while cities continue to pay into the government, only to see the money distributed unfairly to parts of the country that can't afford to keep up. Do you think the rest of the country supports New York, or does New York support the poorer parts of the country, including agribusiness.
Why is it that direct government aid to individuals is looked down upon as socialistic while direct government aid in the form of water and subsidies is in the grand tradition of the American economy, the engine of democracy and freedom.
Why is it okay to send the Army, Navy, Air Force, Coast Guard, National Guard, and Marines overseas to Kuwait and Iraq to protect the oil supply, but not to provide health care for all Americans, including aliens, living and putting down their roots here.
Why is it okay to require tenants to move out of their rooms and apartments, but not wealthier landowners under the power of eminent domain. The recent Kelo case raised issues such as this.
In short, I'm not sure that we're dealing much with principle here. Politics yes, bedrock principle, no.
Having said that, I'm leading up to something.
Property rights and right to contract were as close as we got to bedrock principle during the so-called Lochner era of conservative judicial activism. For decades progressives starting with Teddy Roosevelt, a Republican, and liberals, railed against the conservative Old Court of the Nine Old (White) Men that formed an insurmountable bloc until 1937 when the dam cracked with the Switch in Time that Save Nine, when the first Justice Roberts flipped, never to return again, until 60 years later when the Rehnquist Court began to turn the tide. That would be in the new states rights revolution whose emblems are the Lopez School Gun Case (1995) and VAWA, U.S. v. Morrison (2000). The Supreme Court, in an exercise of judicial supremacy, narrowed Congress's power by clipping its wings. See also Boerney v. Flores, declaring RFRA unconstitutional as too powerful a weapon with which to shoot a flea. In other words, Congress has no idea what it is doing, the bumblers.
Expect this to come up in the Roberts confirmation hearing. Sen. Arlen Spector, a maverick Republican who can think for himself, has already asked John Roberts whether he respects Congress or wants to mark its papers.
During the Warren Court years, I cheered for judicial supremacy, since Congress and the president refused for decades to advance civil rights. Liberal activism this was called. Judicial supremacy exercised in the opposite direction.
Well, suppose I think judicial supremacy in either direction is undemocratic.
I teach that the theory of our constitution has it that the big contribution of American democracy to the world is that sovereignty (final say on just about anything and everything in the way of a government measure) lies with the people. I got that from Abraham Lincoln ("government of the people, by the people, and for the people"). He got it from the Founding Fathers who got it from Locke and Montesquieu and I don't know where they got it, probably the Athenians of an earlier day.
So I you and I have final say, sovereignty, and Congress is our representative, where does it say that the Supreme Court has the final say on everything of importance?
I know, I've read Marbury a few times, and know what Chief Justice Marshall says is the answer to this question, but I've also read the criticism of his decision that says he made this up, or we've carried it too far.
We don't have a constitution in exile, we have a constitution that's jumped the fence and is the Supreme Court corral, not mine. I have no say when it comes to the Supreme Court. I have some say in Congress. I vote for Congress, not for the Court.
Am I happy when the Supreme Court rules in a way that I like? Sure, who wouldn't. I like civil rights, privacy, equality, elimination of discriminatory laws against people who are different from me by gender, race, sexual orientation, etc. If Congress won't provide them, I'm happy when the Supreme Court does.
Do I like it when the Court narrows the power of Congress and the nation in the name of more conservative values than I prefer? No.
Do I have a right to complain when the Court exercises judicial supremacy against my preferences instead of in favor of them? I don't know on what principle.
Do I think this is democratic in either direction? I don't see how it is.
Is their a higher value in a democracy than democracy?
Well, there is a tyranny of the majority, isn't there?
Do I trust the presidency? Why should I do that? I've seen the presidency.
What about the Court? I know about Dred Scott, Plessy, the Lochner Era, and Bush v. Gore (2000). Why should I put faith in the Court when it's a coin flip which way they're going to flop.
What about Congress and the People?
I don't trust them very much either. They're why we have police, prosecutors, judges and juries.
But that's the point. I think that I can keep Congress honester using those devices than I can the Court and the president.
I may be ready to see Congress have the final say as the direct representative of the People who have ultimate sovereignty in a democracy.
I don't know how to get there, other than to dream up a new constitutional amendment transferring the power of judicial review from one body to the other.
Suppose this as a little thought experiment in Constitutional Law: A new amendment that continues things the way that they are as to judicial review with the following possible over-ride by Congress, putting final say in the People's representative body such that: If Congress wishes to overturn a decision of the Supreme Court it may do so provided a two-thirds majority in each of the House and Senate concur and the president signs the override bill into law. Two-thirds since this is what it takes to over-ride a presidential veto.
The president can't veto because he knows in advance that the 2/3 vote to override a veto exists.
If 2/3 of Congress and the president favor an override, why shouldn't these more democratic branches override the less democratic?
If the bill fails it can be reintroduced each year until it passes or we've come to accept the result.
Is this an invitation to cementing in place tomorrow's version of some terrible thing such as slavery or Jim Crow?
I wouldn't want to see that.
But if the Supreme Court imposes such a regime, and it has in the past, see Dred Scott and Plessy, in which much of the country concurred for at least awhile, how else do you rid yourself of the regime democratically? While it would be quite a challenge to effectuate the sort of an override I'm asking about, it would't be as hard as the formal amendment process.
What's wrong with this?
We'll have to think about it, now, won't we.