There’s already been a lot of chatter over GW Law school professor Jeffrey Rosen’s portrayal of the “Constitution in Exile” movement in the New York Times, but here’s what I consider to be the million dollar line:
All restoration fantasies have a golden age, a lost world that is based, at least to a degree, in historical fact. For the Constitution in Exile movement, that world is the era of Republican dominance in the United States from 1896 through the Roaring Twenties. Even as the Progressive movement gathered steam, seeking to protect workers from what it saw as the ravages of an unregulated market, American courts during that period steadfastly preserved an ideal of free enterprise, routinely striking down laws that were said to restrict economic competition.
Rosen is not so coyly trying to portray those who seek to “restore” the Constitution (which by my definition means the rejection of huge swaths of law, starting from the enactment of the Sherman Antitrust Act) as proponents of the fantasy of economic competition–yet this fantasy belongs to Rosen.
If you read any of CAC’s amicus briefs to the US Supreme Court, you will find that we don’t argue once that competition is primary. We argue that individual rights come first and that government’s sole legitimate mission is the protection of those rights. In a free society, competition is a consequence of the freedom to enter markets, but competition is not in and of itself the justification for anything. If it were, we’d be the “Little ‘D’ Democrats in Favor of Antitrust” instead of the Center for the Advancement of Capitalism. Yet in this essay, Rosen tells us what our position is. I think there is a reason for this. A few paragraphs later from the above quote, Rosen tips his hand:
Today, the conventional wisdom among liberal and conservative legal thinkers alike is that Lochner was decided incorrectly and that the court’s embrace of judicial restraint on economic matters in 1937 was a triumph for democracy.
Rosen is referring to Lochner v. New York, a 1905 Supreme Court case which overturned a New York law regulating the working hours of bakers. By claiming bi-ideological support for democracy (and seemingly pooh-poohing anyone who strays from conventional wisdom), Rosen only proves what Objectivists have been saying for years; the battle is not between liberals and conservatives, but between individualists and statists. (And conversely, by highlighting the lead the libertarians have taken in this fight, Rosen’s article shows Objectivists the ground that’s being lost by the libertarians in legal activism.) Any movement that claims a “restoration” of the past as its goal forgets the conditions that led to its replacement in the first place.
In the end, I do agree with Rosen, albeit perhaps not as he intended. There is an ongoing battle between democracy and freedom. Rosen’s cheap shot of an article, with its menacing photos of “exile” thinkers and its stacking of its facts is just another piece of evidence that reveals how hard the upcoming battle will be–and the desperate need for a body of people who can cogently explain the principle of individual rights to a culture dominated by those hostile to its precepts.
