Friday, February 18, 2005

Regulate this!

A few posts back I linked to this article by Bruce Ackerman concerning future appointments to the Supreme Court. I noted in my discussion of the article that there is a movement among many conservative jurists to reinstate constitutional interpretations that held sway prior to the New Deal. Douglas Ginsburg has called this the Constitution in Exile, but apprently there's some complaining among conservatives that liberals use this term to make conservatives look bad. Whatever. The point is, these people would like to see a radical restructuring of our current Constitutional system to severely limit Congress' ability to regulate under the Commerce Clause in Article 1, Section 8. As I noted previously, much of the regulatory state that Americans take for granted would likely be declared unconstitutional under this regressive change.

The question is, why do conservatives seek this goal? Well, among the eggheads and deep-thinkers, I suspect there is some real concern that the current system, in which Congress delegates authority to regulatory agencies with often conflicting and confusing instructions, is inefficient and counter-productive. Likewise, they may also be concerned that these agencies are undemocratic and that decisions effecting vast swaths of the population are made with virtually no political or popular input. However, I think that's probably a small minority on the conservative side.

I suspect that most conservative idealogues (like every single one of the foaming-at-the-mouth lunatics at Club for Growth) like the idea of Lochner-esque constitutional interpretations because it would return our economy to a state similar to the pre-Progressive era. I suspect that they dream of an economy in which firms would be allowed to operate basically unfettered by anything but the most minimal health, safety and environmental regulations. In short, many conservatives like the idea of the Constitution in Exile becuase it offers the prospect of a system in which Congress has far less power to force American businesses to internalize the negative effects of a modern manufacturing economy. They like the Constitution in Exile becuase it might just be able to do what Reagan/Bush/Clinton couldn't, deregulate the entire American economy.