Populism

Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism?

Legal scholar John McGinnis argues the answer is "yes." But the issue is a far closer one than he suggests.

|The Volokh Conspiracy |

Recent years have seen the rise of both left-wing and right-wing populist movements in the US. To those who value civil liberties and economic freedom, both potentially pose significant threats. But, as my friend and prominent legal scholar John McGinnis points out in a thoughtful post, the danger is partly mitigated by constitutional constraints on government power. John also argues that the US Constitution (at least as currently interpreted by the courts) does more to protect against the dangers of right-wing populism than the left-wing variety:

Right-wing and left-wing populists share some bad tendencies. Both, for instance, tend to ignore deficits and government debt…

But right and left populists also have flaws that are peculiar to their respective brands. The right's xenophobia often makes it suspicious of even legal immigration of the talented, and ethnic prejudices lead to demonization of immigrants on the grounds of ethnicity rather than illegality. Historically, right populists have sometimes lashed out at ethnic groups within their nations. Left populists, in contrast, more often stir up resentment against the rich and large businesses, playing on passions of envy.

Whether right or left populists are worse for the nation depends to some extend on its constitution. If provisions against racial and ethnic discrimination are strong, the worst aspects of right-wing populism will be restrained. Similarly, if provisions protecting property and economic rights are strong, left-wing populism will be contained….

It is thus the content of current constitutional law that makes right-wing populist movements somewhat less dangerous than left-wing movements in the United States. Our constitution rightly has provisions against religious, racial, and ethnic discrimination by the government. And the enforcement of these provisions are of such long standing that they have helped to give rise to more general norms against discrimination throughout much of society.

In contrast, whatever was the Constitution's original meaning, we no longer have strong protections for economic freedom or obstacles to centralized government economic control. Thus, left-wing populists can enact their growth and freedom destroying plans without much fear of constitutional reversal. The one possible exception is a wealth tax, which is probably unconstitutional, even if ironically it is pushed by the one former law professor running for President. But that is the exception that proves the rule.

Most of John's points about left-wing populism are true. In recent years, the Supreme Court has modestly strengthened judicial protection for property rights, and judicial enforcement of structural limits on federal government power. But both remain relatively weak compared to enforcement of other types of constitutional rights and limits on power. Judicial protection for economic liberties outside the property rights context is far weaker still.

It is also worth noting that many left-wing populists endanger free speech with their proposals to curb political expression through campaign finance regulation. The ACLU's critique of the latest Democratic Party proposals along these lines makes for sobering reading. Current Supreme Court precedent provides substantial constraints on this threat. But the precedent rests on close 5-4 decisions that many on the left will try to overturn at the first available opportunity.

But John is overly optimistic about the extent to which current judicial precedent provides strong protection against right-wing populism. As he notes, of the main areas where right-wing populists abuse government power is the field of immigration policy. Yet, as last year's travel ban decision demonstrates, current Supreme Court precedent mandates far greater deference to the government on immigration issues than almost anywhere else. Thus, the Court upheld blatant discrimination on the basis of religion that would have been struck down in virtually any other context (and indeed has been in recent cases addressing situations where the evidence of discriminatory motivation was less extensive). Even before the Trump administration, immigration enforcement also involved large-scale racial profiling that courts have done little to curb.

Right-wing populists also, of course, target trade, as well as immigration, promoting protectionist policies rejected as harmful by economists across the political spectrum. Yet the Constitution give Congress virtually unlimited power to adopt trade restrictions. This is one of the most serious flaws in the document. Modern Supreme Court precedent has exacerbated the problem by allowing Congress to delegate broad power over tariffs to the executive. This has enabled the Trump administration to start a series of trade wars on the basis of specious "national security" justifications. And, so far at least, the courts have upheld the administration's actions.

Another characteristic of right-wing populism is the tendency to repress civil liberties in the face of real and imagined national security threats. Here, modern Supreme Court precedent is a mixed bag. Things have improved since the historic low point of the Japanese internment cases during World War II. But there still often excessive deference in these situations. That problem might get worse before it gets better, as newly appointed Justice Brett Kavanaugh has a worse record in this area than his predecessor (and key swing voter) Anthony Kennedy.

As in the case of immigration, the problem here is not that Kavanaugh and other conservative judges are big fans of right-wing populism. Most tend to be closer to the "establishment" wing of conservatism. Rather, it is that the dangers of right-wing populism tend to overlap with some key flaws of mainstream conservative jurisprudence that long predate the current political moment.

Right-wing populists also can exploit some of the same doctrinal weaknesses as left-wing ones can. For example, the two are similar in their disdain for property rights that might stand in the way of their preferred policies. Trump's proposed border wall, for example, requires the use of eminent domain against thousands of property owners.

What can be done to address these problems? Various legal scholars, myself included, have argued for stronger judicial protection for property rights and economic liberties, more vigorous enforcement of constitutional limits on federal power, and an end to special judicial deference on immigration and national security issues. But each of these improvements in legal doctrine is likely to happen only gradually, if at all. Moreover, in the long run, effective judicial review depends in part on at least a modicum of outside political support, and appointment of judges likely to move the relevant doctrines in the right direction.

In the meantime, economic and civil liberties remain vulnerable on multiple fronts, both right and left. There is no easy solution to the problem, in part because of its multifaceted nature. Those who fear populism will need to mount stronger political opposition to it, which should include greater willingness to cooperate outside conventional left-right political lines.

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82 responses to “Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism?

  1. “Historically, right populists have sometimes lashed out at ethnic groups within their nations. Left populists, in contrast, more often stir up resentment against the rich and large businesses, playing on passions of envy.”

    There’s a bit of an overlapping Venn diagram here. How, for instance, does this model account for racist labor unions seeking limits on Chinese immigration, whites-only workplaces, etc? Labor historians tend to deal with the problem by referring to racist unions as “conservative.” But not even the liberal use of labels won’t make this classification go away – are employers who resisted the demands of racist unions to be called “progressive”?

    Of course, there’s also the issue that “the rich,” in the demonology of some populists, tend to be conflated with certain specific racial/ethnic groups. Is that left-wing or right-wing?

    “Another characteristic of right-wing populism is the tendency to repress civil liberties in the face of real and imagined national security threats. Here, modern Supreme Court precedent is a mixed bag. Things have improved since the historic low point of the Japanese internment cases during World War II. (etc.)”

    So…does FDR’s internment of the Japanese-Americans (a policy supported by governor Earl Warren of California and upheld by Justice Hugo Black) qualify as left-wing or right-wing?

    1. You make a good point that the labels “conservative” and “right wing” often get attached to anything judged bad, even when done by left-wingers. Instead of referring to “right wing” and “left wing” populism, it’s probably better to refer to “economic populism”, which threatens economic liberty, and “fundamental” or “non-economic” populism, which threatens so-called “fundamental” liberty. Economic populists’ threats to liberty need only pass rational basis review while non-economic populists’ threats need to pass strict scrutiny, with an exception perhaps for measures rationalized by national security. In that sense, the courts’ current interpretation of the Constitution does seem to offer stronger protections against non-economic (and national security) populists than against economic populists.

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    2. Not to mention Truman literally nuking our adversaries.

    3. “there’s also the issue that “the rich,” in the demonology of some populists, tend to be conflated with certain specific racial/ethnic groups. Is that left-wing or right-wing?”

      Today’s populists are not against “the rich” who happen to agree with them, only “the rich” who stand in their way. The populists of both sides are careful to identify exactly which “the rich” they’re opposed to. Have you noticed that pretty much nobody has a problem with Warren Buffett, but the names “Soros” and “Koch” are dead giveaways as to the political leanings of the people who complain about them?

  2. So, this rambling incoherent mess is an example of legal scholarship? Quite a fair and reasoned assessment of the competing philosophies? Who are “right-wing populists”? Among other horribles, apparently they are xenophobic. I would have expected this level of childish reasoning from some of the commentators here, not from someone actually contributing articles.

    1. I find that a fair criticism. Much of what he’s complaining about in the case of “right wing populism” isn’t a constitutional threat, it’s just him not liking constitutional policy preferences.

      1. I’d agree.

        1. It appears we have a consensus: Conservative bigots aren’t worried about bigoted right-wing populism. Problem solved.

          1. “Conservative bigots aren’t worried about bigoted right-wing populism.”? Nice, but can’t fit it on a baseball cap so we need to shorten it a bit. How about “Conservatively populist right-winged bigots”? “Bigotedly popular conservative right-wingers ? No, just not working.

    2. “So, this rambling incoherent mess is an example of legal scholarship?”

      It’s a blog post. If you want legal scholarship, get a subscription to some law reviews.

      1. Have you ever read a law review? Basically even worse reasoning, but with footnotes, lots and lots of footnotes.

    3. So, this rambling incoherent mess is an example of legal scholarship?

      No. It’s a blog post. If you can’t tell the difference between a blog and a law review, you’ve got some problems.

      Who are “right-wing populists”? Among other horribles, apparently they are xenophobic.

      Yes, and?

      1. The subject of the article concerned the views of “prominent legal scholar John McGinnis.” You probably didn’t read the post but couldn’t you even make the effort to read the title?

      2. Oh, try to be a little original. Pollock already used the law review line yesterday.

  3. Allow me to attack from the “left”. For all the sobbing about nearly non-existent property rights, the percentage of Americans who have “upper level” incomes is larger than ever. Furthermore, the rich are richer than ever. Up until Eisenhower’s re-election, I would say, many rich folks still felt there was a possibility that the government might confiscate their fortunes. Until the “go-go sixties”, many felt that no one would ever be as rich as the Twenties millionaires. Those were the days! Now, of course, modern fortunes dwarf John D. Rockefeller, Cornelius Vanderbilt, and J. P. Morgan all rolled into one. The Koch Brothers, worth $20 billion each in 2008, whined about “Kenyan socialism” when Barack Obama was elected. After 8 years of said socialism, their wealth has doubled. There are plenty of things wrong with AOC, but she ain’t going to make you poor.

    1. “For all the sobbing about nearly non-existent property rights, the percentage of Americans who have “upper level” incomes is larger than ever.”

      Suzette Kelo will be glad to learn that property rights continue to be robust for rich fatcats like her.

      1. Not to mention all those multi-billionaires subject to asset forfeiture, arbitrary licensing laws, and the rest.

        1. And the former Soviet Union was indeed a bastion of property rights due to the large number of wealthy apparatchiks with their expensive dachas and shopping privileges at luxury stores.

    2. Only $40 billion…. Small change against the Bezos and Soros of the world

      As for AOC, she’s a different category of crazy. People complained Trump being nuts, and AOC said “Hold my beer”

      1. “As for AOC, she’s a different category of crazy. People complained Trump being nuts […]”

        In case you didn’t notice, nobody let her be President.

        1. Ah, wait until 2024.

        2. Michael Moore would like to.

          https://youtu.be/YEpl-c78XBs

          -dk

        3. AOC as president? Do not even joke about that.

        4. “In case you didn’t notice, nobody let her be President.”

          In case you didn’t notice, that’s irrelevant. She’s still bat-shit crazy.

    3. The Koch Brothers, worth $20 billion each in 2008, whined about “Kenyan socialism” when Barack Obama was elected.

      They did?

  4. McGinnis:

    Thus, left-wing populists can enact their growth and freedom destroying plans without much fear of constitutional reversal.

    Beg the question much?

    Sure, if you take it as a given that a proposal will “destroy growth and freedom” then it’s a bad idea. But that’s just McGinnis’ opinion, and there is no good reason to assign it any particular weight. That he does not even bother to specify which plans he is talking about makes it seem all the more based on nothing but personal ideological views.

    1. McGinnis: “left-wing populists[‘]…growth and freedom destroying plans”
      bernard11: “he does not even bother to specify which plans he is talking about”

      Proposition: Every single Democratic policy destroys growth, freedom, or both. Discuss.

      1. Ok. I’ll discuss.

        That’s an idiotic proposition, stated by a fool.

  5. “Populism” is just whatever is generally popular among or appealing to “the people.” The founding of the United States definitely included a certain populist flair, with its references to “the People” and the assumption of sovereignty residing with the People. The People is a phrase defined by contrast with ruling elites. Google defines “populism” as what is appealing to “ordinary people” as opposed to “established elite groups.”

    So, populism is just what is popular with the People, as opposed to the established elite powers.

    If civil liberties and freedom happen to be popular among ordinary people, especially as opposed to what is popular among established elites, then populism would not be a threat to liberty and freedom, in fact it would essentially be synonymous with liberty and freedom in that context. One might argue that these sort of circumstances existed in some degree upon the Declaration of Independence and the founding of the U.S.

    If on the other hand, liberty and freedom are not popular, then populism in that case would obviously be a threat to liberty and freedom.

    One big lesson here, particularly in a republic or a democracy where ordinary people have influence, would be that you better work very hard to create and maintain a citizenry that values liberty and freedom very strongly and fiercely. One might even say “eternal vigilance” is needed.

    1/2

    1. 2/2

      So how does this fit into today’s context? What is popular among ordinary people, and just as important, what is favored by the established elites?

      As to the latter, the primary elements of the established elite’s legacy seems to be: (1) they spent $7 trillion on wars in the middle east while letting things deteriorate at home, (2) they adopted bad trade policies to make a quick buck for themselves, which simultaneously decimated domestic industry and enabled the rise of a global Communist superpower, and (3) they flooded the country with a historically astounding number of immigrants both legal and illegal in order to suppress wages and inflame racial identity politics for political gain.

      And what about “the people”? It seems Somin and McGinnis are using “right-wing populism” as a synonym for “right-wing racism” or “white racism” (as opposed to left-wing or non-white racism, which does not fit into their discussion, but interestingly enough seems to be becoming as big or bigger a phenomenon) and “left-wing populism” as a synonym for “socialism and socialist-like policies up to and including communism.”

      This is just fine for their discussion purposes, but it definitely doesn’t capture anything that is actually popular on the right. For the left, socialism has become very popular, but then again it’s also gained traction with the elite, so it’s a slightly muddled picture in the sense of defining populism.

      1. Right-wing populists also, of course, target trade, as well as immigration, promoting protectionist policies rejected as harmful by economists across the political spectrum.

        This is true, IF you adopt a laughably absurd definition of “across the political spectrum” to mean “including individuals who identify as both Republicans and Democrats.”

        Of course, this definition is laughable because the ruling establishments of Democrats and Republicans have on the whole been largely in de facto agreement on 90% or more of meaningful policy, while the other 10% is used for the dog and pony show of politics. Moreover, this definition laughable because the group of economists defined here are by definition in disagreement with 60%, 70%, and 80% or more of the actual political spectrum on these basic issues, depending on what particular thing you focus on.

        As for the merits of these economist’s views, one of the keys is the definition of “harmful” here. Read David Frum’s recent article and interviews, or George Borjas, for an idea of what they are talking about with immigration. The “harm” would be robbing the wealthy of a tiny amount of GDP gain that accrues solely to them while harming most ordinary people and increasing public debt. Regarding trade, I enjoyed this little piece reaching back to Adam Smith.

        1. In general, I’m in agreement with this evaluation. Ilya’s categorization of “popularism” as “left wing” or “Right wing” doesn’t really explain it, anymore than a banana can be left wing or right wing.

          There are minor bits I may quibble with, including the supposed $7 Trillion price tag for mid east wars (That number keeps going up far beyond any real budget numbers), but that’s neither here nor there.

          1. I agree that defining populism as right or left is a bit silly. The core of populism is bottom v top. The core of divide et impera is bottom v ‘other’ bottom. Maybe that is called populism but in truth it is merely manipulation masquerading as populism.

            And there’s really nothing wrong with populism if the focus is on expanding opportunity at the bottom rather than demonization of the top. THAT’s what’s really missing now – and it’s missing cuz real populism can also be manipulated by those who’ve bought into vanguard/intermediary stuff.

            1. Exactly. “Popularism” is better defined as “the people” versus “the elite”. It can really be better defined by most of the revolutions (American, French, etc) throughout history.

              Now, exactly how it plays out differs in each case. And often the elite have a skill set which is valuable, and can be lost. And there are various paths to failure. But the elite also often didn’t respond to the wishes of “the people” and basically used them.

          2. the supposed $7 Trillion price tag for mid east wars (That number keeps going up far beyond any real budget numbers), but that’s neither here nor there.

            I don’t know how accurate the $7 trillion is, but I do know that those kinds of figures are an attempt to estimate all costs to the US, not just those that show up in the federal budget.

            So, for example, they would include the cost to the economy of casualties.

          3. the supposed $7 Trillion price tag for mid east wars (That number keeps going up far beyond any real budget numbers), but that’s neither here nor there.

            I don’t know how accurate the $7 trillion is, but I do know that those kinds of figures are an attempt to estimate all costs to the US, not just those that show up in the federal budget.

            So, for example, they would include the cost to the economy of casualties.

            1. Sorry for the double post.

              The comment system seems to not post sometimes, and then do it twice to atone.

            2. No worries on the double post it happens.

              I know “how” they get to these numbers, but they are horribly inflated, and only account for costs, without any accounting for benefits. Moreover, they tend to be disproportionate.

              For example, they’ll count any borrowing in the budget to JUST be for the wars. And then they’ll count the interest costs, and the interest on that interest, and so on. But that’s not really how unified budgets work.

              Let’s use an absurd example. WWII cost US $4 trillion, adjusted for inflation. (just the first link on google). Originally that was 296 billion…but near 40% of GDP. That’s just war spending, no economic effects. But, let’s throw the “Investment modifier” in. If instead, that money had been invested (DJIA), instead, of war, it would be closer to $40 Trillion.

        2. The “harm” would be robbing the wealthy of a tiny amount of GDP gain that accrues solely to them while harming most ordinary people and increasing public debt.

          I mean, this is delusional, and economists across the political spectrum ? an easily understood term, despite your attempts at obfuscation ? agree. There are a handful of kook economists who ignore all the evidence and think otherwise.

          1. “across the political spectrum ? an easily understood term”

            Easily understood, yet a misnomer, since a group of people who support illegal immigration or very high levels of immigration are in a very small minority politically, regardless of their superficial identification with “Democrat” or “Republican.” It’s a silly attempt at bolstering credibility.

            Anyway, here your argument is that George Borjas, America’s leading immigration economist, is “delusional” and a “kook”, and that David Frum and the economists he cites are “delusional” on immigration, even though David Frum is rabidly opposed to Trump and Trump’s political movement. Of course, you provide zero substantive arguments, citations, or evidence to support your claims. Odd case.

            1. As usual, Borjas or GTFO. Your appeals to authority are too carefully curated by far.

              1. As usual, my citations to Borjas and David Frum stack up very well against the detractors’ citations to zero, zip, nothing.

                1. Both I and NToJ have provided you criticism of Borjas. You discard it as having an agenda, and thus not counting.

                  1. You have attempted to criticize the evidence and reasoning of others claims, while offering absolutely none of your own up for criticism. Not a single source or study to support or even clarify exactly what your claims are about the economics of immigration. A very weak and pathetic showing.

                    Anyway, your “attempts to criticize” Borjas if they can be so charitably described, were just “oh, he is an outlier” with zero evidence that he’s wrong or even evidence that he’s an outlier. You’ve got nothing. The only inkling of an actual criticism was that NTOJ claimed (without evidence) that there is a net incremental increase to standard of living for Americans brought about by our massive levels of unskilled immigration due to cheaper goods and more purchasing power, which Borjas allegedly didn’t account for. But he didn’t cite any evidence for this, and didn’t respond to evidence that high levels of immigration actually drive up the cost of most purchasing which is in the areas of housing, education, and health care, nor did he even attempt to argue that this alleged benefit outweighed the actual lowered wages and increased taxpayer burden.

    2. “If civil liberties and freedom happen to be popular among ordinary people, especially as opposed to what is popular among established elites, then populism would not be a threat to liberty and freedom”

      Lynching black people used to be a popular pastime. Not a threat to the liberty or the freedom of the white folks.

      Maintaining freedom and liberty for everybody, and not just the popular groups, is why you need a Constitution. It doesn’t always work (ask the Americans of Japanese descent, circa 1943) but relying on people to protect the unpopular groups on their own has a rather substantial history of not-really-successful, and that’s generous.

      1. You mean the market doesn’t solve it?

        I’m gobsmacked.

        1. But the market would have solved it. It was right on the verge of solving it, until government interfered. If something is a problem, and the market hasn’t solved it, by definition that is because the market has been interfered with, or else the market is just about to fix it.

      2. What’s happened now is that the same strong sentiments and policies espoused by Bill Clinton, Harry Reid, Diane Feinstein, George Bush, Hillary Clinton, Barack Obama etc in previous decades about the need to deal with illegal immigration, have now been deemed by Democrats to be extreme racism. It’s a farce.

        1. Need to deal != a wall. Even back then liberals were talking about a path to citizenship. The left has moved on the issue, but the right has certainly moved more.

  6. Good grief. Mr. Somin must have far too much time on his hands. Am I to assume that someone pays his salary for this stuff?

    I have written more than 2700 blog articles myself. I hope that none of them are as rambling as this was.

  7. Name an example of right-wing populism and I’ll tell you how it isn’t right-wing.

    1. Tea Party protests that demand less taxation.

      1. Based on a Gallup poll, somewhere between 10-30% of all Americans identified as Tea Party during its active years. Of that percentage of people, approximately 20% of them were Democrats according to a WaPo poll.

    2. “Name an example of right-wing populism and I’ll tell you how it isn’t right-wing.”

      The Order, circa 1988.

    3. It’s fake Scotsmen all the way down.

    4. Exactly awildseaking

      Conservatism (Right-wing) does not seek to impose rapid change that populist movements are designed to do.

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  9. So FDR and Earl Warren were “Right-Wing Populists”?

    1. Trying to shoehorn racist and nationalist tendencies into “right wing” or “left wing” is an attempt to attack the other side’s economic policies via poisoning the well.

      1. Nah, Krayt, it’s not well poisoning, it’s just experience. The American right wing has been voting pro-racist for at least 150 years. By now, everyone can see it. The blue-state/red-state map of 2016 is basically the map of the pro-Lincoln/not-Lincoln vote of 1860. The resemblance is unmistakable. Amazingly, Trump’s strength in the Midwest is even foreshadowed?by anti-Lincoln/pro-Douglass strength there in 1860. That was a racist vote in 1860 (Douglass was explicitly racist), and it was a racist vote in 2016 (Trump was explicitly racist).

        The correspondence isn’t county-by-county perfect (Lincoln was stronger in the Midwest than Clinton), but it’s good enough to demolish any pure-reason argument to the contrary. Here is some not-news: racism really is a big factor in American politics. Economic policies? There, but less big. That explains why no one is surprised when regions vote their historical racialist tendencies (the opposite would be shocking, actually), but people are commonly surprised to see regions apparently voting against economic self-interest.

        Curiously, voters typically make exquisitely accurate assessments of a candidate’s racialist tendencies, but inaccurate assessments of a candidate’s economic tendencies. Why do you suppose that happens? I suggest it’s because the one question which looms largest in most voters’ minds is, “Will this candidate favor people like me,” and for many voters, race remains a big part of that?even a dominant part.

        1. Which accounts for all those Obama voters going over to Trump instead of supporting the wife of the first black president.

  10. In contrast, whatever was the Constitution’s original meaning, we no longer have strong protections for economic freedom or obstacles to centralized government economic control.

    The U.S. Constitution did not decree capitalism, nor any other economic system for the nation. It left all those questions for politics. There were never constitutional protections for what libertarians call “economic freedom,” other than the few specifically enumerated?which fall far short of defining any kind of economic system.

    If the courts were somehow to decree as a matter of law a prescription for free-market economics, that would be unconstitutional. To be legitimate, that could only be accomplished by amendment. That doesn’t mean the political system could not, through the political process, enact laws favoring libertarian economics, or socialist economics, or oligarchic plutocracy?so long as those laws did not infringe the bill of rights.

    1. “That doesn’t mean the political system could not, through the political process, enact laws favoring…socialist economics…”

      That would have come as a relief to the Socialists, who back in 1912 didn’t seem as certain on this subject as you are. Consider some of their demands:

      “The abolition of the power usurped by the Supreme Court of the United States to pass upon the constitutionality of the legislation enacted by Congress. National laws to be repealed only by act of Congress or by a referendum vote of the whole people.

      “Abolition of the present restrictions upon the amendment of the Constitution, so that instrument may be made amendable by a majority of the voters in a majority of the States….

      “The calling of a convention for the revision of the constitution of the U. S.”

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  11. From the Web site of the World Socialist Party (US):

    “Inequality, with the monied minority on top and in control, is the essence of capitalism. With the ratification of the Constitution, this class-stratified system was protected by the supreme law of the land.”

    1. Eddy, you have been quoting from some folks who seem to agree with me, that the Constitution did not decree any particular economic system for the United States. Where others differed, was that they weren’t content with that, as I am. Some of them wanted a different Constitution, to establish socialism, instead of just leaving the question to politics. I don’t approve of that.

      The politics of the early 19th century saw both vigorous socialist agitation (and would-be revolutionism), and institutional push-back, some of it extreme and even illegitimate push-back from the Supreme Court.

      However, if you are trying to suggest that I am incorrect about economic systems and the Constitution, I don’t think your citations advance that point at all. What is your point?

      1. Oops, early 20th century, not early 19th.

        1. These socialist sources suggest that the Constitution is an obstacle to socialists doing what they want to do. That it has a bias toward capitalism and property rights (or whatever swear words socialists use to describe such a situation).

          They’re not agreeing with you that the Constitution is neutral as between capitalism and socialism and that socialists as well as capitalists could achieve their goals within the framework of the Constitution.

          1. Where do you see that? When I read the stuff you linked, I see them complaining that:

            1. The Constitution did not establish socialism, and

            2. It’s too hard for anyone to change it.

            I agree with both points, but I don’t see the slightest proof that means the Constitution decrees capitalism, or any other specific economic system.

            1. “With the ratification of the Constitution, this class-stratified system was protected by the supreme law of the land.”

              1. “It stands to reason that a document drafted by a coterie of gilded gentry, openly contemptuous of “democracy” and panicked by what they saw as the mob rule of the 1780s, would seek to constrict popular sovereignty to the point of strangulation.

                “Thus, brilliantly and subtly, the system they built rendered it virtually impossible for the electorate to obtain a concerted change in national policy by a collective act of political will.”

                1. “At this very moment, when expansionary monetary policy and debt relief for homeowners are demanded by the Left to address the ongoing, grinding social crisis, it should not be forgotten that “a rage for paper money” and “an abolition of debts” were precisely the sorts of “wicked project[s]” that James Madison, writing in Federalist No. 10, specifically hoped his Constitution would rule out.

                  “You would almost think Madison had been listening to Glenn Beck.”

                  1. Eddy, where do you see Madison decreeing capitalism? If you think it’s in Federalist 10, then you misread Federalist 10. No matter what meaning you think you find there, don’t rest until you square it with this:

                    Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

                    You can’t think Madison intended any specific economic ideology without depriving him of his most famous utterance. This one:

                    Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

                    1. “The regulation of these various and interfering interests forms the principal task of modern legislation”

                      Again, this is what the socialists and fellow-travellers would call “gridlock,” because they’re not interested in adjusting the demands of “landed interest…manufacturing interest…mercantile interest…moneyed interest,” etc. They want to sweep aside these interests in behalf of the “public interest.” “Power to the people,” which as Mike Royko said, means “power to me and a few of my friends who know what’s good for the people.”

                      All this regulation of competing interests gets in the way.

  12. The constitution permits a number of “populist” policies on both the right and left, including strict immigration controls on the right, and high progressive taxes and generous welfare rules on the left.

    More fundamentally, courts have no right or business striking down laws because they think they stem from politically dangerous ideas. They can only strike them down because they violate specific and specifically defined constitutional provisions. Unless they violate a specific constitutional provision, populist policies are as permissible as any other kind.

  13. the Court upheld blatant discrimination on the basis of religion

    I laughed when I got to this part. The legal ignorance of whoever wrote that linked article was on full display.

    The political ignorance in this article is something else entirely. I’m often surprised the lengths people will go to in order to argue that the party of liberty is somehow on par with the party of actual fascists.

  14. Populism is simply the “for” in Government of, by, and for the People.

    1. It’s the bomp in the bomp bah bomp bah bomp…the ram in the rama lama ding dong…the bop in the bop shoo bop shoo bop, and the dip in the dip da dip da dip.

  15. When the author of this article does not even understand that on a Left-Right political spectrum, the maximum freedom and liberty is location in the center. Left-wing is Communism, Socialism, Nazism, Democrats. Right-wing (conservatives) is monarchy and theocracies.

    If you use revolution to take over you lean Left. If you are conservative and don’t change rules much, you lean Right.

    Populism is by definition a movement for change, which is Left.

  16. The Constitution contains strong prohibitions against all manner of government overreach, including the welfare state, government takeover of healthcare, the drug war, and the Federal criminalization of everything.

    Not that that has stopped left wing jurists from finding ways to excuse all of it.

    I would say the problem lies not in the document.

  17. Euphemisms like “populism” obscure the real issue. There are rights violators and rights protectors and they ought to be called what they are, not shielded by immaterial descriptors.

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