Conservatives love the Constitution so much that they want to return the country to 1787, the year it came into existence. Oh, they still want jet travel and smart phones and instant trading on the stock market. You know, everything that money can buy.

What conservatives do not want is to maintain the changes and improvements in our lives since that date that money cannot buy.

Conservatives are quick to talk of “original intent” of the penners of the Constitution. But to them, this original intent is what they believe should still be the purpose and application of that great document which arose out of a small group of men, much wealthier than the folks still back on the farms, and who had a god-given right to rule.

That is the essence of what writer Ted Frier tries to convey in History Repeats Itself In New Gilded Age.

He focuses especially on how this view dominates the current Supreme Court under Chief Justice John Roberts.

Just 55 well-to-do white guys wrote the US Constitution during that Philadelphia summer of 1787. And to hear the conservatives of the current Roberts Court tell it, the Founding Father’s “original intent” was for  small groups of wealthy white guys to rule America ever since.

His conclusion is to be expected, given many recent SCOTUS decisions such as the infamous Citizens United case declaring corporations to be persons. Likewise he fears that the Affordable Care Act will be felled by another 5-4 partisan decision.

Actions by the Supreme Court that advance personal freedom — such as the rights of women to control their own bodies, or the rights of non-believers not to be proselytized to in public places, or the rights of criminal defendants to justice – are denounced by conservatives as assaults against The Natural Order of Things and subversive of both democracy and majority rule itself.

However, based on the behavior of these very same conservatives, judicial “activism” doesn’t refer the actions of judges at all but rather to a state of non-conformance with the way conservatives think societies ought to be organized, with most power placed in just a few hands. And this is why conservatives don’t look at their judicial power grabs as “activist” at all, but rather “restorative,” in the same way Bush v. Gore wasn’t “activist” because it restored Republicans to the White House or Citizens United wasn’t “activist” because it restored plutocratic control to the American political process.


As they defend their timeless and “immutable principles” — written in the very nature of the universe — conservatives have also shown themselves to be uncommonly adaptive and flexible when it comes to inventing arguments out of whole cloth that advance their own self-interest.

Ever since Earl Warren was Chief Justice and the Court issued a series of landmark rulings on individual rights conservatives have condemned this “judicial activism”. Yet the current court, not quite dominated by conservatives but with the so-called swing votes frequently going their way, has been just as judicially active, only proceeding in the opposite direction to narrow the protections offered the masses.

The severely right wing worldview that underlies the decisions of the Roberts Court fits loosely within a school of judicial thought known as “The Constitution in Exile,” which Jeffrey Rosen in the New York Times defines as the belief that the entire social welfare and regulatory state in force since the New Deal “is unconstitutional as well as immoral.”

In the Reg Henry blog, Reg On Wry, in the Post-Gazette, a few conservative posters were quite adamant in their opinion that Social Security and Medicare were unconstitutional and that the Constitution never intended for Congress to regulate interstate commerce beyond essentially serving as a referee to forestall potentially internecine conflicts between states over trade issues.

We ain’t in Kansas any more, Toto. Nor are we stuck in 1787 when the quickest transit between points A and B was accomplished by a wheeled vehicle pulled by a team of strong and speedy horses. over largely rutted roads.

Just as we laugh at these archaic concepts of public transportation so should we laugh at the archaic concepts of interstate commerce that existed in a heavily agrarian society; that had no means of mass communication or the ability of individuals to convey news to anyone far away save by writing on paper and mailing it or sending by courier.

Likewise the archaic concepts of who had human rights are alien to the citizenry of today. Back then slaves were not free and were not counted as whole persons in the census, women could not vote, and lord help you if your color was other than that of white.

Frier himself projects more of a comparison of today to America’s “Gilded Age”.

All restoration fantasies have their Golden Ages, says Rosen. And for the Constitution in Exile movement, that fondly-remembered yesteryear is the dominance the Republican Party enjoyed from the Gilded Age through the Roaring Twenties when business-friendly courts “steadfastly preserved an ideal of free enterprise” by routinely striking down laws meant to protect workers from the ravages of the unregulated market.

It was here that Mitt Romney’s idea of a public corporation as a “person” first took root as conservatives sought to fashion the 14th Amendment’s due process protections into what economic historian Kevin Phillips called “a sword conservative judges could use to cut down state and federal legislation for ‘unreasonably’ interfering with property and contracts.”

Indeed, says Phillips, while judicial decisions voiding laws as unconstitutional were few and far between before 1850, during the Gilded Age they became commonplace as business-controlled state courts between 1885 and 1899 struck down more than a thousand local laws meant to protect workers.

One of the most notorious judicial power grabs was 1895’s Pollock v. Farmer’s Loan and Trust Co. in which the US Supreme Court invalidated the federal income tax. To the man on the street, the question before the bar was whether “consumption should pay all the taxes of the federal government or whether investment and speculation should bear their fair share of public burdens,” writes William Swindler in his Court and Constitution in the 20th Century.

The New York World called the Court’s decision “a triumph of selfishness over patriotism and another victory for greed over need.”

Aside from the realm of the Supreme Court this retro effect of present conservative mores manifests in our tax system. It has been well-noted that individual income tax rates, at least the top marginal rates, are at near historic lows while during prveious periods of great American prosperity they were nearly confiscatory.

Likewise much blame for our present economic malaise has been laid at the foot of allegedly too high corporate taxes. Yet, as found here, federal revenue from the corporate income tax has dwindled to the equivalent of a slight blip on GDP even as many companies squirrel away huge profits or park them overseas.

Revenue from the corporate income tax fell from between 5 and 6 percent of GDP in the early 1950s to 1.3 percent of GDP in 2010.

And take a look at the sources of revenue in 2010.

The payroll tax portion consists not only of Social Security and Medicare taxes but also railroad retirement, unemployment insurance, and federal workers’ pension contributions.

That segment of revenue is the only source that has experienced steady growth as a percentage of GDP. Though personal income tax averages 8% of GDP, in this example it is just above 6.2%.

But what is the noise emanating from the houses of Congress and from conservative politicians and their flunky pundits everywhere? It is that the corporations and the rich—the “job creators”— are paying too much in taxes and need to pay less. Again that means an increased burden on the masses.

Remember Mitt Romney’s tax returns? In  two years he earned around $45 million. How much did he pay in payroll taxes? Zero. They are not charged on interest or dividend income.

Frier continues his analysis of the Gilded Age and the similarities to it we are currently undergoing. What could happen as a result?

The misalignment between political and economic power can grow for decades, says Lind, until the abuses and exploitations the political system finds itself powerless to address explode in a cataclysm of long delayed reform, such as the Civil War and Reconstruction, the Progressive Movement and New Deal and, perhaps today, Occupy Wall Street.

And while liberals are accused of being too far to the left, the reality is something distinctively different.

As the wealthy become ever more aware of themselves as a distinctive and, in their own minds, embattled class, this disengaged plutocracy begins to exhibit all the classic defensive characteristics of a reactionary caste, whose inability to relate to those outside their charmed circle is perfectly manifested in Mitt Romney’s wooden and socially inarticulate behavior around other human beings.

The widening gap between the parties, which is directly related to higher income inequality, is occurring because Republicans are moving far to the right not because Democrats are moving left. Krugman says we see this most obviously in the Republican proposals for health care reform that the President adopted as his own template for Obamacare only to see Republicans denounce their own ideas as Marxist-Leninist “Socialism!”

Today’s conservatives in their Ayn Rand inspired  quests for few taxes and no restraints on corporations and the wealthy seek to roll back any progress in our society except the evermore imaginative ways they can gain pelf while any random benefits to the masses are unsecured if not deliberately withheld.

I am not prepared to go along for this ride in the conservative version of H.G. Welles’ Time Machine. Are you?

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  • Penelope Miller  On April 24, 2012 at 8:45 PM

    Well said, UMOC. You should edit this and submit it as an OP ED to the Gazzer.

    Cheers mate.

    • umoc193  On April 24, 2012 at 9:54 PM

      Thanks. I had read the article and was merely going to give the link to Minx who had commented on another post, but then I thought I could make something of it.

      I would like to “spread the joy” so to speak but I’m not familiar with the Gazzer.

      Too, all the comments I’ve gotten have been on content, not as a critique of my writing skills. Any suggestions?

      Glad you finally made the comments page here. I miss my old commie comrades!

  • little_minx  On April 24, 2012 at 10:40 PM

    Well done, UMOC; pity that Centinel isn’t around any more so we could watch his head explode (or even implode). I suspect “The Gazzer” must be some sort of Anglo-Yinzer slang for the P-G.

  • little_minx  On April 27, 2012 at 2:52 PM

    This gem, from the 4 April “Times of London,” as quoted by Calvin Trillin in “The New Yorker”:

    “Aides want to illustrate to skeptical voters that Mr. Romney is a ‘real guy,’ but his gaffe-prone campaigning has convinced handlers to keep him behind a protective ring, known to insiders as the Mittness Protection Programme.”

    You’re welcome 😉

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