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Justice Scalia Says Rightwing Economic Ideology is Mandated By the Constitution. Really.

Scalia regularly bars video or voice recordings of his off-the-bench speeches, and in at least one fairly recent instance, the details of which I can’t recall, he employed a member of the U.S. Marshals Service to enforce his policy.  If I recall correctly, a member of his security detail confiscated a reporter’s or law student’s audio recorder as the audience was leaving the room after the speech; something like that, anyway.

But recently he spoke publicly to a group somewhere in Italy, the speech was recorded, and National Law Journal reporter Michelle Olsen obtained and posted access to a web page that, the How Appealing blog reported, “was then providing access to download the mp3 audio of Justice Scalia’s remarks.”  The remainder of that How Appealing post, from yesterday, relates what happened next:

Yesterday, however, Michelle noted that the link to the audio of Justice Scalia’s remarks at that web page had disappeared. Nevertheless, the audio file itself remained available for download from the server for those who possessed the original download link.

Today, Michelle has not only posted the audio of Justice Scalia’s remarks to SoundCloud, but she has also located online another place where the audio of Justice Scalia’s remarks remains available for download (70.7 MB mp3 audio file).

Today, How Appealing follows up with this post:

“Scalia on the Judiciary and Economic Liberty”: Josh Blackman has this post today at his blog.

Blackman, an assistant professor of law at South Texas College of Law in Houston, begins his post by expressing appreciation to Olsen “for retrieving Justice Scalia’s speech in Italy from a new ring of Dante’s inferno (where off-the-record recordings of Justice’s speech wither away in limbo).”  He then quotes from the part of the speech that he listened to; he says he’ll post further after listening to the remainder.

A two-paragraph excerpt and a couple of additional quotes that Blackman adds are, in my opinion, jaw-dropping for their bald assertion that the Constitution mandates the particular economic ideology that Scalia ascribes to and therefore prohibits many (most?) of the economics-related laws enacted by Congress.

One added quote has Scalia saying that John Locke was the “guiding light of American independence.” Blackman then writes:

Scalia notes that the structural provisions of the Constitution are most fundamental to protecting economic liberty. He mentions the doctrine of enumerated powers, the Due Process Clause, the takings clause, and the contracts clause.

“Our Constitution provides property owners with relatively few substantive rights. Almost all of our private rights in the Constitution are in the Bill of Rights, which was an afterthought  . . . . Judges cannot enact atextual rights to enact their preferred policies.”*

The rightwing justices are big these days on attributing much of their peculiar brand of constitutional jurisprudence to what they say is the “structure” of the Constitution–usually things that are not stated expressly in the Constitution but that conservatives nonetheless claim are inherent in the document.  Especially extreme and sometimes bizarre declarations of states’ rights, which, according to this crowd, oddly enough or conveniently enough regularly trumps individual rights, including such individual rights as due process and habeas corpus, and narrower rights such as the right to the assistance of counsel, that underpin the more general ones.

Or, likely, the supposed structure of the Constitution that, in the absence of a specific useful provision, will suffice sometime in the next four weeks to justify voiding a key provision of the Voting Rights Act.  The Fifth Amendment doesn’t expressly require due process for states, as it does for “persons,” and has never before been held to incorporate within it “an equal protection component” similar to the one in the Fourteenth Amendment protecting “any person,” as it has for “any person.”  But, absent a formal pronouncement by the Court that states and voting districts within states are people too, the Constitution’s structure will suffice, if the oral argument this spring in the current Voting Rights case is an indication.

But I digress.  What we have right  now, from one of the mouth of one of the five horses, is an express adoption of an extreme laissez faire economics policy agenda in the ostensible name of the Constitution.  I hope that Democratic congressional candidates make this known when they address their constituents at Town Hall meetings and are asked about economic-policy issues.  We now have a Supreme Court justice who has publicly vowed to use his official position to undermine economic policy that he claims the Founding Fathers–followers of John Locke all, he says–would disapprove.

It’s struck me in recent weeks that statements by Paul Ryan and Mitch McConnell and other congressional wingnuts acknowledge that the Republicans are attempting to stage what amounts to a non-military coup.  They lost the popular vote for the House, and soundly lost the White House and the Senate, last fall, yet they will bring down the economy of the United States and will routinely refuse to confirm the president’s judicial and agency-head appointments, and will disallow funding for statutorily mandated agencies and programs, because–as Ryan said a week or two ago–they believe that the Republican policy agenda is better policy.

And now we have a Supreme Court justice announcing, if quietly, that he will try to use the Court to do the same.**  In the name of John Locke, no less.

*Indent-format-corrected to show boundary of quote.

**Sentence typo-corrected.


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"Of Property" and the Mercantilist Fallacy

  Sandwichman at Econospeak offers a look at a piece of history:

“Of Property” and the Mercantilist Fallacy

“Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.”

The above is the core of what is commonly referred to as John Locke’s “labour theory of property.” It is a extraordinarily compelling narrative, resplendent with “self-evident truth” (“We hold these truths to be self evident…) and nearly indiscernible ambiguity (what does “labour” mean? what’s “mixing” got to do with it?).
It is widely acknowledged by Locke scholars that his economic views were essentially mercantilist. Keynes suggested that Locke stood with “one foot in the mercantilist world and one foot in the classical world.” However that may be, chapter five of Locke’s Second Treatise on Civil Government, “Of Property”, is relentlessly, incorrigibly, two-footedly mercantilist. And nobody seems to have noticed (except possibly John R. Commons).

Why would this even matter?

Yeah, sure, we are told, ad nauseum, about how PROPERTY is the be all and end all of freedom, democracy and prosperity. A comic-book, social Darwinist pseudo-Locke lends the right-wing libertarian anti-tax mantra a veneer of moral righteousness and intellectual gravitas.

And it’s crap.

But there are bigger fish to fry: LABOUR.

While socialists and even liberals may be inclined to circumscribe the sanctity of property, they are loath to gainsay the hallowed individualist framing of labour. Some folks even think it’s downright revolutionary to insist on the worker’s right to the whole product of labour. Labour, though,  is only conventionally something an individual performs. Labour is social. Labour power is best understood as a common-pool resource.
The ideology of labour as an extension of the self is pervasive, persuasive and pernicious. From that perspective, solidarity is a voluntary act of magnanimity that can be “terminated at will” just like a redundant employee. As individuals, the relationship between workers is accidental; their relationships with the employer and with the state are what matters.

The inescapable mercantilism of Locke’s notion of natural law puts that individualist ideology in a different light. In his Essay on the Law of Nature, Locke was adamant that “the rightness of an action does not depend on its utility; on the contrary, its utility is a result of its rightness.” “It is impossible,” Locke wrote, “that the primary law of nature is such that its violation is unavoidable. Yet, if the private interest of each person is the basis of that law, the law will inevitably be broken…”

Here is where the mercantilism comes in: “when any man snatches for himself as much as he can, he takes away from another man’s heap the amount he adds to his own, and it is impossible for anyone to grow rich except at the expense of someone else.” To avoid any mistake, Locke reiterates his objection to positing “every man’s self interest the basis of natural law”:

“For in such a case each person is required to procure for himself and to retain in his possession the greatest possible number of useful things; and when this happens it is inevitable that the smallest possible number is left to some other person, because surely no gain falls to you which does not involve somebody else’s loss.”

An unequivocal zero-sum game. “No gain falls to you which does not involve somebody else’s loss.” “It is impossible for anyone to grow rich except at the expense of someone else.”

Now there are those who will object that Locke modified his views between the earlier Essay on the Law of Nature and his later Second Treatise on Civil Government. Not so. In the latter, and especially in the chapter “Of Property,” Money plays a pivotal role in repealing what has become known as the spoilage limitation:

“He that gathered a hundred bushels of acorns or apples, had thereby a property in them… He was only to look, that he used them before they spoiled, else he took more than his share, and robbed others. And indeed it was a foolish thing, as well as dishonest, to hoard up more than he could make use of.”

Someone who took so much that it spoiled before he could use it did a foolish, dishonest thing and robbed others. In short, if you take so much that it rots, it was never yours to take.

How does Money nullify that limitation? The person who gathers more perishable goods than he can use can exchange it for durable Gold or Silver. Problem solved.

Locke was a staunch metallist who insisted on the intrinsic value of Money as represented by its weight and fineness. This is not some incidental biographical trivia. Locke’s well documented views on Money were decisive in the monetary reform and re-minting of British coinage in the 1690s.

According to Locke, it was not the absolute quantity of Gold and Silver a nation held that determined its wealth but the proportion of Gold and Silver it held relative to the holdings of the rest of the world:

“Riches do not consist in having more Gold and Silver, but in having more in proportion, than the rest of the World, or than our Neighbours, whereby we are enabled to procure to our selves a greater Plenty of the Conveniencies of Life than comes within the reach of Neighbouring kingdoms and States, who, sharing the Gold and Silver of the World in a less proportion, want the means of Plenty and Power, and so are Poorer.”

A zero-sum game. What was “one man’s gain is another’s loss” in useful things is mitigated by its transmutation into metal Money where one man’s gain is still another’s loss but is at least not a net loss (through waste). This later proviso, though, only holds good for Money with an intrinsic value of specified weight and fineness.


Some readers may have wondered at the parenthetical reference to John R. Commons back in the second paragraph. Commons didn’t specifically address the passages I cited from the Essay on the Law of Nature. In fact, it wasn’t published until 20 years later. Nor did he discuss Locke’s influential writings on Money. But he did make a point in a reply to a critic that is germane to my argument here.

The context of Commons’s observations is crucial to the significance of his remark, so I will reproduce a substantial excerpt here:

My point of view is indeed personal, as was said by Professor Homan of all institutional economists. It is simply my own experience in collective action from which I drew a theory of the part played by collective action on individual action. It may or may not fit other people’s ideas of institutionalism. It started, indeed, with my trade-union membership and my later participation in labor arbitration; then turned to drafting a public utility law designed to ascertain and maintain reasonable values and reasonable practices; then to drafting and participating in administration of an industrial commission law with the similar purpose of reasonable practices applied to employers and employees; then to representing the western states before the Federal Trade Commission on the Pittsburgh Plus case of discrimination; then to aiding the House Committee on Congressman Strong’s bill for stabilization of prices; meanwhile administering and developing a plan for unemployment insurance finally enacted into law.

I do not see how anyone going through these 45 years of participation could fail to arrive at two inferences, conflict of interest and collective action. Even the state itself turned out to be merely collective action of those in possession of sovereignty.
Meanwhile I was necessarily studying hundreds of decisions, mainly of the United States Supreme Court, endeavoring to discover on what principles they decided disputes of conflicting interests under the clauses of the Constitution relating to due process, to taking property and liberty, and to equal treatment. I found that none of the economists had taken this point of view, and none of them except Professor Ely, had made any contributions that would make it possible to fit legal institutions into economics or into this constitutional scheme of American judicial sovereignty.

Drumroll… Now here’s his point:

Going back over the economists from John Locke to the orthodox school of the present day, I found they always had a conflicting meaning of wealth, namely a material thing and the ownership of that thing. But ownership, at least in its modern meaning of intangible property, means power to restrict production on account of abundance while the material things arise from power to increase the abundance of things by production, even overproduction.

A simple point but a profound and subtle one. Ownership is not the same as the material thing owned. But beyond that, the restrictive implication of ownership is contrary to the abundance implication of the material things owned.

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