Activist Supreme Court

Ever since large industrial corporations and financial institutions emerged during the late-19th Century, the role of government in the economy, and the role of money and corporations in politics have been the subjects of some of the most important and bitter constitutional struggles in American history. Economic inequality today is at its highest level since the early 20th Century. Often referred to as the “new Gilded Age,” there are growing concerns that rising inequality has become incompatible with a functioning and sustainable democracy. In the domain of constitutional law, many political and legal commentators draw parallels between the today and the Lochner Era of the late-19th and early-20th Centuries. Strikingly, the Court has most forcefully protected the political and economic interests of corporations and wealthy individuals during periods of extreme economic inequality. Now, a popular backlash appears to be intensifying against “crony capitalism,” dysfunctional governmental gridlock, and perceptions of government corrupted by and the captive of self-serving special interests, politicians, and parties. With the recent death of Justice Antonin Scalia, the Supreme Court and constitutional law has reached a moment of potential transformation. Under the circumstances, we should take stock of the current state of constitutional law, along with its political and economic consequences, and contemplate how constitutional law should develop going forward.

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Write an 8-9 page essay assessing the following claims:
1. We are living through the second coming of the Lochner Era characterized by an arrogant and activist Supreme Court that has created or resurrected free speech, Commerce Clause, and federalism doctrines that rest on weak and dubious constitutional interpretations and/or theories.
2. The Supreme Court’s 1st Amendment doctrines originating with Buckley and culminating (so far) in Citizen’s United and Arizona Free Enterprise Club have taken the place of the Lochner Era’s substantive Due Process right to liberty of contract—and are arguably more damaging.
3. If the Supreme Court’s 1st Amendment doctrines foreclose effective direct regulation of campaign finance, Congress can address the problem of corporate spending on political campaigns through economic regulation (such as, but not limited to, a federal corporation law effectively precluding corporate campaign contributions).

In addressing these questions, place current constitutional doctrines in the context of broader historical trends and developments going back to the Lochner Era and the New Deal crisis. Use the theories/modes of constitutional interpretation we have covered in this class in your analyses.

Writing style counts along with content. Papers should be thoughtful, well organized, clearly written, and spell/grammar checked. Do not restate the facts of cases unless absolutely necessary for your analysis or argument. Papers should be double-spaced in 12-point font and have 1-inch margins.
Grading Rubric categories:
1. argument
2. organization
3. evidence
4. citations
5. prose

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