Constitutionalism and Democracy by George Skouras

Author:George Skouras
Language: eng
Format: epub
ISBN: 9783031669064
Publisher: Springer Nature Switzerland

Labor contracts, Adair v. United States37 (1908) and Coppage v. Kansas38 (1915), were curtailed by the Supreme Court. The Court sort of appointed itself as the overseer of a society undergoing rapid change from agriculture to industry.39 Justice Holmes was cognizant of the fact that the Court was acting like a super-legislator during this period and found himself, along with Justice Brandeis, in dissent in many cases.40 In short Justices Holmes and Brandeis did not fit in well with a laissez-faire and social Darwinian Supreme Court in early Twentieth century America.

What is clear is that a Supreme Court, with the power of judicial review is in a position, to re-order society according to its own plans, not by the will of We the People.41 Where property protection becomes the standard of the good society, all that interferes with private property protection is bad. Legislation aimed at ameliorating the pain and suffering of the unskilled and propertyless worker was not in the capacity or within the scope of the legislator authority because the legislator tipped the scales of justice in favor of the propertyless over the propertied—those that want to help the propertyless, at the expense of the propertied, are deemed as illegally interfering with the sacred rights of property ownership. “Support for laissez-faire philosophy simply reflected hostility by businesses to increase government regulation that accompanied the industrial revolution—regulation that was designed to protect workers, women, consumers, and competitors.”42

The mechanical and Newtonian principles embodied in the Constitution regarding the priority and centrality of property protection were applied regardless of conditions on the ground. The Newtonian mechanics, embodied in the American Constitution, were rigid enough to allow the Supreme Court to serve as the ultimate decider as to how property is to be distributed in the United States—to withstand the need for legislative and regulation change and reform on the ground level. Combine this rigid Newtonian mechanics with Social Darwinism philosophy, and it entails an asymmetrical challenge for living animals to survive the experience in the urban jungle of industrialism. It was nature’s way of weeding out the weak, and the judges using the Constitution as a scalpel to finish off the propertyless commoners. The Justices were simply carrying out their duty to protect society from any unnatural assistance (by Regulators/Legislators) and the redistribution of property from one group to another or from one class to another.

Nothing was off the table for the Supreme Court, not even sick chickens! “In A.L.A. Schecter Poultry Corp. v. United States (1935), often referred to as the “sick chicken case,” the Court declared a federal law unconstitutional based on an insufficient direct effect on interstate commerce. The National Industrial Recovery Act of 1933, a key piece of New Deal legislation, authorized the president to approve “codes of fair competition” developed by boards of various industries.”43 Before Roosevelt threatened to pack the Court, most of Roosevelt’s New Deal legislation was struck down as in one way or another interfering with commerce or property. That is, again the Court was behaving in a mechanical and Newtonian way as it did during the Gilded Age.

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