Politicians, Economists and the Supreme Court at Work

Politicians, Economists and the Supreme Court at Work

The Founders Betrayed

Timothy P. Roth

Presented as an engaging thought experiment, Politicians, Economists and the Supreme Court at Work examines the metastasizing federal role through two different means: first, as it relates to the increasing concerns of a contemporary nation, and second, the depth to which that nation’s Founders would be appalled by the actions of their successors. Additionally, the book provides a critical appraisal of the burgeoning federal enterprise and the federal government’s ‘on-, off-, and off-off’ budget activities – ultimately answering the question, ‘What would the Founders do?’

Chapter 4: The ‘New Court’ at Work

Timothy P. Roth

Subjects: economics and finance, law and economics, political economy, law - academic, law and economics, politics and public policy, political economy


THE PROGRESSIVE AGENDA The constitutional jurisprudence of the ‘New Court’ was, in many ways, a reflection of the Progressive view of social progress. While, as we shall see (in Chapter 5), an emergent conception of the transcendental autonomous self is itself partially responsible for the growth of the federal enterprise, immediate interest centers on two ‘progressive’ ideas. Simply stated, Progressives questioned both the structure of US federalism and the conception of individual liberty that animated much of the Old Court’s constitutional jurisprudence; in particular, the liberty of contract (Epstein, 2006, pp. 7–8). Characteristically, Progressives espoused an economic nationalism whose central principle is that the ‘extensive interconnection of all aspects of the American economy crie[s] out for federal regulation’ (ibid., p. 8). On this logic, they insisted upon what I argue is an expansive understanding of the federal role. Interestingly, James Madison reacted in 1819 to an early expression of the ‘extensive interconnection’ mantra: In the great system of Political Economy having for its general object the national welfare, everything is related immediately or remotely to every other thing; and consequently a Power over any one thing, if not limited by some obvious and precise affinity, may amount to a power over every other. Ends and means may shift their character at will & according to the ingenuity of the [federal] Legislative Body. ([1819] 1999, p. 734) For present purposes, the essential point is that, in Progressive hands, the ‘extensive interconnection of all aspects of the American economy’ was, along...

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