American Justice and the Common Good

Justice has always been in short supply in the United States. This has never been news to poor, native, or enslaved Americans. As imperfect as our courts have been until the last 25 years or so, we had experienced more fairness, protection of civil liberties, more of “We the People” actually recognized as persons under the law, and treated as such. It had seemed that the “great moral arc of the universe” while long actually does bend toward justice. Then, in the 90’s the conservatives of the Republican party decided it was time to turn back the clock, through ruthless partisan tactics to appoint radically conservative judges to the Federal courts.

The United States Federal courts are not supposed to be the forum where we as a society enact social policy. Our courts are supposed to rule on the cases before them, deciding on the merits of the law and the facts of the case, whether the litigants before them have been wronged and should be compensated or if the judgement against them was correct. The United States Supreme Court has for many decades, abandoned this role, instead seeking cases to rule on to establish precedent – the litigants seeking Justice before them be damned. Precedent is supposed to provide continuity to law in our United States. If a Federal court decides that the precedent to this point was wrong – that is a big deal – as in the decisions that “Separate is not Equal: in Education – which it plainly was not (and still is not), in many schools throughout our United States when predominately white schools have ample money, facilities and books, and schools which are in poorer white or brown communities make do with much, much less.

The six radically conservative Republican, and three liberal Democratic associates of our United States Supreme court are itself an artifact of a Republican Senator, the Honorable Addison Mitchell McConnell III, who in his position of Senate Majority leader blocked President Barack Obama’s supreme court nominee Merrick Garland from consideration in the Senate. Senator McConnell and the Republican majority prevented this position on the supereme court from being filled for 12 months, until after the election of President Donald Trump.

Republican Senator McConnell then displayed that perfect hypocrisy which demonstrates that no Republican can be trusted in the modern Republican party by reversing his rational for preventing consideration of President Obama’s supreme court nominee ( that there was an election coming up in 8 months ) to rush through confirmation hearings for Amy Coney Barrett, President Trumps third nominee to the supreme court, less than 2 months before the 2020 presidential election.

Through these Republican machinations, President Trump was able to seat 3, radically conservative Republican “Justices” to the Supreme Court of our United States. Supreme Court decisions were already getting decidedly more radically conservative. Some examples follow:

• That women are not people after all – deserving of making their own decisions with their doctors about whether or not to carry pregnancies to term.^{1 2}
• That police officers need to be protected from anything more than cursory investigation, let alone prosecution from the deaths they cause in the line of duty. ^{3 4}
• That with mass casualty shootings almost every day, the second amendment has been construed to mean that any person in our United States has a personal right to carry a firearm in spite of the wording and meaning of the actual second amendment.⁵
• That corporate persons rights are more important that the rights of the people that work for those corporations.⁶

Not only has the Supreme Court of our United States been corrupted by this sort of partisan ideology which supports moneyed interests over people, and gives no consideration of fact, or truth, or even basic common sense in favor of the strict legal arguments where both thumbs are firmly on the scales of Justice to construe the law to favor those self-same moneyed interests. An entire educational system of law schools, foundations, and professional societies have been established to advance the ideal of an absolute right of property to those few who hold the most wealth in our country. This idea originated in the early 19th century of the United States, when property included the enslaved persons who collectively represented 20% ^{7 8} of the wealth of our United States before the Civil War. The reforms of the 20th century: safe food and drug reforms of the Progressive era at the beginning of the century, the labor and finance New Deal reforms after the great Depression as well as the voting, civil rights, environmental and consumer protections of the 60’s through the 80’s, are all anathema to these self proclaimed “Public Choice”, “Economic Libertarians”. These proponents of extreme self-reliant, personal liberty believe that we all would be better off if workers were prevented from organizing and business’s are freed from financial and environmental regulation. Restricting government to providing domestic security ( basic policing ) and sovereign security ( military protection of the country ). Where the poorer among us – the Takers are denied any government services, while the wealthy Makers are not taxed of their well-earned wealth.

Who are these puppet masters who have through Republican Senator McConnell have put these radical conservative Jurists on most of the Federal Courts throughout our United States?

I recently read a book – Democracy in Chains, The Deep History of the Radical Right’s Stealth Plan for America, by Nancy MacLean. It was the reason this Part 3 took so much time for me to post. This book details the life and work of James McGill Buchanan and his influence on Charles and David Koch, using their resources to found the infrastructure necessary to destroy the liberal reforms accomplished by our United States in the 20th Century. To make our United States more like Chile under the dictator Augusto Pinochet Ugarte, and more importantly ( Buchanan was an advisor to Pinochet ) to create constitutional blocks to changing government policy, such that Chile even 30 years after Pinochet’s death still struggles with enacting more liberal policies.

This political and legal infrastructure which is attempting to impose this economic radical personel liberty on all of us, whether we like it or not; consists of the following institutions. Anyone who is half-aware of conservative policy will recognize some if not all of these institutions.

• George Mason University – Mercantor Center
• Mont Pelerin Society
• The Federalist Society ^{9 10}
• The American Legislative Exchange Council
• The Cato Institute

As these public choice policies have been implemented, the regular working public is increasingly having to shoulder more responsibility of our health care, our retirement, our consumer/worker health and safety. While the wealthy in our country pay less of a percentage of their income in taxes than the rest of us. Especially since most of their compensation is paid to them as stock rather than monetary wages. Public Choice personal “Liberty” can only be enjoyed by people with enormous wealth, who can buy for themselves all the protections, services, and security which we liberals believe should be enjoyed by everyone who lives and contributes to our country.

Paradoxically, this public choice, personal liberty movement seeks to increase the size and control of government over American society rather than as it purports, to shrink government control over our lives. The problem of public choice is that to provide the personal “liberty” for the wealthy among us, the rest of us must be prevented from electing public officials who will raise taxes on the wealthy to provide services to everyone.

The Republican party has been entirely captured by this point of view. Republican ideology is that government is the problem, so that the more incompetent, less effective Republican officials are: only better proves their thesis that government of the people does not work. Why should anyone vote for any Republican who promotes the tax cutting, government services cutting, anti-government ideology of our current Republican party? Why should anyone support a political party that instead of doing positive things for our country is only interested in obstruction?

Government is not our problem. Our problem is the Republican party and their ideological puppet masters, the architects of public choice, establishing the liberty of the wealthy on the backs of the rest of us.

1. 19-1392 Dobbs v. Jackson Women’s Health Organization (06/24/2022)
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2. Slate.com, Conservatives now talking openly about national abortion ban ↩︎
3. New York Times, How the Supreme Court Protects Bad Cops ↩︎
4. Plumhoff v. Rickard (2014) U. S. Reports: 572 U.S. 765 ↩︎
5. oyez.org, New York State Rifle & Pistol Association Inc. v. Bruen ↩︎
6. oyez.org, Burwell v. Hobby Lobby Stores ↩︎
7. Total Wealth of the United States 1859 – $15.2 Trillion – US Census Data page 9, Series A 2. ↩︎
8. Total value of enslaved persons, United States 1859 – $3 Trillion – The Economics of the Civil War – eh.net , Figure 1 ↩︎
9. https://theintercept.com, LEONARD LEO BUILT THE CONSERVATIVE COURT. NOW HE’S FUNNELING DARK MONEY INTO LAW SCHOOLS. ↩︎
10. https://www.propublica.org/, Podcast: We Don’t Talk About Leonard ↩︎