June 27th, 2008

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SCOTUS Great Chain of Being: Gov, Individuals, Corporations

What is astounding about the recent spate of cases that closes out this term is the extent to which the Court rather narrowly determines that the rights of individuals have precedence over the power of government, but that corporations are superior to both. This last term in particular boggles the mind in the aggressive nature with which this court pursues a new Lochner regime in which economic activity is regarded as sacred and corporate power its highest expression of good.

The Court upheld an individual right to own firearms, the rights of individuals to to file writs of habeus corpus if held in U.S. custody even if not on U.S. soil, held that a man who murdered his wife could exclude statements made by her previously under the Sixth Amendment confrontation clause, and held that execution where no one actually died violates the 8th Amen. In all of these cases is the inehrent notion of the right of the individual as against government power.

But when individuals went up against corporate interests, they consistently lost. The court held that punitive damages paid by corporations must be limited, held that contracts entered into via negotiation are nevertheless subject to the "filed rate" doctrine and must be presumed valid -- despite the absence of the safeguards which induced the Court to create the filed rate doctrine in the first place. Lawsuits against corporations were consistently harder to maintain. And antitrust continues to take a beating.

I suppose Congress is merely being presceint in privileging teleocms to break the law with immunity to FISA.
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I Could Be Wrong (Lord Knows It Has Happened Before)

It appears there is a core group of disaffected Hilary supporters willing to go on fighting. According to the article, they call themselves PUMAS ("Party Unity My Posterior"). The question is, is it the makings of a social movement, a bunch of real pissed of people determined to ruin someone else's party because they are pissed, or a bunch of people determined to recreate the fate of the Trigati?

Part of the problem is that what exists is a lot of anger and not much cohesion. Oh, and let us pause to savor the irony that these same people would have expected the Obama supporters to lay down their weapons and surrender gracefully if it had gone the other way, would have called refusal by Obama supporters to do so misogynistic and sexist, and no doubt will bitterly resent when Obama supporters call them racists who need to get over themselves. As a member of an oft marginalized and angry movement myself (several, really), I recognize that anger is always a good starting point (go read Heinlien's Moon Is A Harsh Mistress). But as I like to say, the difference between a movement and a mob is intent. Right now, it's a mob that hates the fact this uppity [N-word] managed to steal the nomination from Hilary.

But meanwhile, a confident Obama is busy tacking to the center and pissing off his progressive allies. Charles Krauthammer has this piece on Obama's recent drifting away from some of his progressive positions on campaign financ reform, FISA, NAFTA and negotiations with Iran. While Krauthammer is a conservative columnist eager to portray Obama in the worst light, he makes a good point. In the last two weeks, he has seriously annoyed/disappointed a fair number of folks who had supported him.

For the moment, at least, the Netroots are primarily directing anger and activity at Steny Hoyer and the Democratic leadership, despite the rather patronizing chiding from Obama supporters. Yes, we are pragmatic and want to win blah blah. As Jane Hammsher over at FiredogLake, what this shows is the need to elect "more and better Democrats."

But there are two trends here that are worth following. If Obama manages to piss off or disillusion enough people, he is going to find himself in trouble as the election goes on. He is rolling in dough and volunteers at the moment because he has excited a lot of folks. What happens if they become less excited? Not at the level of "I'll vote for McCain" or even "I'll stay home," but at the level of "I was going to donate and volunteer to do canvassing on a weekend, but now I'll skip it." Obama's current strategy assumes he can maintain his current level of fundraising and volunteer labor force. And maybe he can (especially as machine Dems and corporate funders take up the slack). But while he is in a position to pick and choose between factions, he cannot afford to annoy all factions.

The other trend is the far more important one -- what happens after the election and going into 2010. Focusing on the election of Obama is short term and pointless. And Dems are poised to take major terrain in the House and Senate. But as the Bushies demonstrated, you still have to actually govern at the end. Even control of both Houses of Congress will be insufficient if the party is riven with internal feuds. But unlike the Republicans, who faced a truly irreconcilable feud between libertarians/fiscal conservatives and social conservatives, the conflict in the Democratic party is far more avoidable. It derives not from an inherent contradiction in goals (get government off our backs/use government to promote moral behavior), but from a difference in both priorities and methods. The question is whether the Democratic leadership will continue to act as if it can safely ignore the netroots or not, because the Dems should take a good look at what happened to the Rs after their triumph in 2004.

In a way, Bab 5 provides a useful analogy. The Trigati didn't amount to much on its own. But the same forces that prompted the Trigati to refuse to surrender, try to start another war, and ultimately destroy themselves also created a civil war between the warrior caste and the religious caste. I'm inclined to regard the PUMAS as in the same class as the Trigati, and expect them to enjoy the same fate. But I still hope we can avoid breaking the Council.

Now if you'll excuse me, I see a chrysalis with my name on it and I am due for a nap.