I offer you today the chance to get down and dirty with a little legal theory for the masses. The NyTimes has a nine page magazine piece explaining in pretty good detail the Economic Libertarian movement, and its connections to the Republican Party, and its efforts to get sympathetic judges appointed. It’s a great read, and will make you feel better informed, I promise.

Do you like Social Security?

Do you like the fact that there exists a set of labor laws that require at least a minimum wage, and mandate overtime pay?

Do you, in theory at least, accept that the Federal Government should have a Clean Water Act, and other environmental laws, and the power to enforce them?

Do you like it that we have a Securities and Exchange Commission to, in theory at least, keep an eye on the stockbrokers and stock markets?

Well, if you appreciate the value of those things (even if you disagree with some of their actions and specific policies), then you are not really on board yet with the “economic libertarian” wing of the Republican Party.

AND, you do not fully understand WHY the Republican Power Brokers are fighting so hard for the appointment of many controversial judges to the Federal courts.

A powerful wing of the Republican Party wants to revert our legal climate to where it was prior to the New Deal, and UNDO all the protective and regulatory legislation of the last 60 years, on constitutional theories.

If you were approaching the debate from a purely theoretical point of view, you might agree that our constitution does not REALLY give Congress the power to mandate clean water (for example).

BUT —– Our environmental and social problems were SO SEVERE, and NOTHING was being done to fix them, so Congress stepped in under “Commerce Clause” of the US Constitution. The Commerce Clause give Congress the power to regulate Interstate Commerce. Huge legal battles were fought for 150 years over what “regulate” meant. The courts tended to forbid much regulation by Congress, until 1937.

In 1937 the Supreme Court kind of changed its tune (due to the massive social and economic problems that had developed due to no regulation), and permitted Congress to implement a lot of regulations in the name of “regulating interstate commerce”.

A theoretical utopian Republican movement exists today, speculating that we could DO AWAY WITH much or all of the commerce clause regulations, and still be alright and prosperous. I call this movement “utopian” in the sense that they are delusional if they think they could create an heaven on earth. As the excerpted article points out, when Congress deregulated the Savings and Loan industry, the tycoons bilked many many billions out of the public in bailouts, while the tycoons got super-rich (that’s just one example).

Remember that nature abhors a vacuum —- when regulations end, greed and corruption enter. Greed and corruption CAUSED the regulations in the first place. Massive social problems stemming from unregulated greed and pollution and unfairness CAUSED Congress to keep trying to pass regulations in the early 20th Century.

The utopians want to TRY IT AGAIN — They want to have the courts once again make it illegal for Congress to regulate things, TRUSTING BLINDLY that the good hearted tycoons will act appropriately for the good of mankind while being good capitalists. As we have seen with the deregulation of certain industries, it’s hard to change human nature - human nature in the economic realm is worst than the utopians imagine.

The above (and the excerpted article) explains a bit about why I can call myself a “social libertarian” rather than a “libertarian”. IF someone is socially and economically lilbertarian, they are out of touch with reality and are utopian in outlook.

But a social libertarian stands for individual liberty, despite supporting limits on economic liberty.

When the Republican Congress attacks government regulation, the Congress is espousing some form of economic libertarianism. I wonder why economic libertarianism and social libertarianism are mutually exclusive among Republicans? That’s right — IT sure seems like the MORE economically libertarian the Republicans become, the more anti-libertarian they become on the social side.

Here’s how I’ve heard the Republicans explain the seeming incocnsistency between their economic libertarianism and their social anti-libertariansism: “We must have standards in society” (referring to regulation of social behavior).

But what about business standards? Shouldn’t we have minimum standards for business behavior as well as minimum standards for social behavior? Standards for businesses are established under the Commerce Clause of the Constitution.

And so, I think the mainstream American agrees that some level of regulation of business is necessary to set minimum standards for business behavior. But the economic libertarian movement disagrees, and they are trying to pack the courts with like-minded judges, who they hope will strike down Federal laws.

For a discussion thread about the NyTimes piece, see Daily Kos :: Understanding the “Constitution in Exile” movement.

For the actual NyTimes piece, see The Unregulated Offensive.

The following is from the DailyKOS discussion thread:

Imagine that the interpretation of the Constitution was frozen in 1937. Imagine a country in which Social Security, job-safety laws and environmental protections were unconstitutional. Imagine judges longing for that. Imagine one of them as the next Supreme Court nominee.

As I’ve said in the past, the true ultra radicals want to destroy Congress’s power under the Interstate Commerce Clause. Should they ever realize such a dream, the consequences would be more dire than you could ever imagine. Rosen lays it out in full, chilling detail:

“Cass Sunstein, a law professor at the University of Chicago (and a longtime colleague of Epstein’s), will soon publish a book on the Constitution in Exile movement called ‘Fundamentally Wrong.’ As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that ‘many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not only be under political but also constitutional stress.”

“Many of the Constitution in Exile people think there can’t be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress’s commerce power.’ In what Sunstein described as the ‘extreme nightmare scenario,’ the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized.”

Read the piece.