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.
The most famous constitutional battle of the time was the 1905 Supreme Court case Lochner v. New York, which challenged a law that was passed by the New York State Legislature, establishing a maximum number of working hours for bakers. The court struck down the law on the grounds that it violated the bakers' freedom of contract, which was arguably, but not explicitly, included in the 14th Amendment's protections of ''liberty'' and ''property.'' In a dissenting opinion, Justice Oliver Wendell Holmes Jr. objected that ''The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics,'' referring to the celebrated Social Darwinist and advocate of laissez-faire economics...
Early on, the movement found its intellectual guru in Richard Epstein. In the words of Michael Greve, Epstein is ''the intellectual patron saint of everybody in this movement.'' Like Bolick, Epstein is too much of a libertarian purist to be a party loyalist. (''Our president is a most inconsistent classical liberal, to be charitable,'' he says. ''He's terrible on trade and a huge spender and not completely candid about the parlous situation Social Security is in.'') But his devotion to -- and influence on -- the Constitution in Exile is unsurpassed.
''Takings: Private Property and the Power of Eminent Domain,'' still in print 20 years after its publication, purports to specify the conditions under which government can rightfully impose regulations and taxes that reduce the value of private property. Drawing on the political philosophy of John Locke, Epstein argues that before the existence of government, individuals in what political theorists call the ''state of nature'' have an inherent right of autonomy, which entitles them to acquire property by dint of their labor and to dispose of it only as they see fit through voluntary transfer of goods. Epstein also maintains that any form of government coercion -- including taxation or other forced transfers of wealth -- can be reconciled with the principles of personal freedom only if it makes individuals at least as well off as they were before the tax or regulation was imposed. Epstein's key insight, as the Constitution in Exile adherents see it, is that economic regulations are just as coercive as other involuntary wealth transfers. He insists that if the government wants to reduce the value of an individual's property -- with zoning restrictions, for example -- it has to compensate him for the lost value.
Moving from political theory to constitutional law, Epstein argues that the framers of the United States Constitution recognized these limitations on governmental power in the Takings Clause of the Constitution, which says that ''private property'' cannot be taken for public use ''without just compensation.'' According to Epstein, the Takings Clause prevents the government from redistributing wealth in any form without appropriate compensation and that a proper understanding of the clause calls into question ''many of the heralded reforms and institutions of the 20th century: zoning, rent control, workers' compensation laws, transfer payments,'' as well as ''progressive taxation.'' Liberal governmental reforms could be sustained, Epstein argues, only if the government were to compensate individuals for the lost value of their property or to make everyone better off in exchange for their taxes. ''This simple theory of governance could be expanded to cover all taxes, all regulations, all shift in liability schemes,'' Epstein wrote in an intellectual autobiography. ''It is also the recipe for striking down the New Deal.''...
Three candidates recently renominated by Bush for positions on the federal appellate courts are sympathetic to the ideas of the Constitution in Exile movement. In addition to William Pryor, the former attorney general of Alabama whom Greve praises, there is Janice Rogers Brown, a justice on the California Supreme Court and an outspoken economic libertarian. An African-American and a daughter of sharecroppers, Brown has been promoted by many libertarians as an ideal Supreme Court candidate. Known for her vigorous criticism of the post-New Deal regulatory state, Brown has called 1937, the year the Supreme Court began to uphold the New Deal, ''the triumph of our socialist revolution,'' adding in another speech that ''protection of property was a major casualty of the revolution of 1937.'' She has praised the court's invalidation of maximum-hour and minimum-wage laws in the Progressive era, and at her Senate confirmation hearing in 2003, she referred disparagingly to ''the dichotomy that eventually develops where economic liberty -- property -- is put on a different level than political liberties.''
I don't suppose it would do to say that this philosophy is inconsistent: as things stand today, "wealth" and "property" mean something different than they did bfore- your wealth and income are accounted for not by how much gold it's worth, but how much you can buy, and thus taxes are a part of the picture.
These people if put into power would wind up impoverishing vast numbers of Americans, and would bring back the near-slave labor conditions that existed in some factories and mines at the turn of the century.
This is what Americans voted for in 2004.
I hope they can deal with it, or transcend it, or re-relegate to the ash heap of history.
HT: DavidNYC at Kos.