Imagine a radical idea of a Supreme Court acting as a check on markets to protect individual liberty as opposed to a check on government to protect markets. That is what Noah Feldman explores in this thought provoking article
Imagining a Liberal Court

Conservatives are usually upset when liberals discover rights where they see none. Nonetheless, conservatives have accomplished a judicial feat over the last half of the century to discover rights of corporations on par with the rights of individuals and make it into a commonly accepted axiom.

Long post under the cut:

Civil libertarian commitments, meanwhile, have become increasingly absolutist, leading some liberals to favor extending basic rights to corporations, not just to individuals. The American Civil Liberties Union, for example, has long urged the Supreme Court to treat corporations just like individuals when it comes to political speech.

Amazing how the political pendulum swings not only in a form of changing parties in power but also in the judicial approach. Originalism, as a strict adherence to Constitution or at least how they see it, is now the realm of Scalia and Thomas, but in early 20th century it was a liberal idea. But as liberals on the Court began to push equality and individual rights in the mid 20th century, conservative came up with brilliant idea to equate corporate interests to individual liberty. Now, according to the article, progressive judicial thought would have to try to justify why government regulation can be a way to promote constitutional values of self-government and individual freedom. Now imagine dangling this idea in this political climate. I rather not think about it. It’s going to be more toxic than “death panels”. I can already hear “they are going to take your house away and give it to the ni a poor black person!”

Perhaps, the pendulum has swung so far to the right that it is the individuals who have to be awarded the same rights as corporations. Corporations are very smart to try to play victim all the time – they have amassed rights that are unavailable to a mere mortal. Have you heard the expression – it’s much easier to steal millions with a stroke of a pen than a few dollars with a gun. If corporations are treated as individuals then who goes to jail if a misconduct or crime is found? And for how long? Is selling a dimebag of pot a more serious crime than selling a subprime mortgage? Right now it is. Because of the government concern for the well-being of the buyer, who obviously doesn’t know what he’s doing. As opposed to subrime mortgage bonds buyers who do. Individuals should be able to default every now and then with no consequences, get government bailouts in the form of cash injections, make unlimited political donations, have more ways to avoid paying taxes. As you have probably seen in my previous post about Republicans and regulation, all of a sudden the sanctity of contract is not that sacred anymore in Republican circles if it gets a little guy off the hook.

There can be hundreds of different arguments for and against this approach but to make matters simple we just have to look at who benefits and who pays?

It is true that corporate political speech is still speech, as Justice Kennedy and the A.C.L.U. alike have insisted. But that speech serves different ends than individual speech. Organized to use all lawful means to generate profit, corporations have the means and opportunity to try to capture the operation of government to serve this objective. Campaign-spending lets them do it directly. That is why Congress must be able to limit the effects of corporate speech during elections. It is a matter of defending democracy against the risk that business interests will come to dominate government decision-making — an interest that derives from the constitutional commitment to republican government.

Perhaps this battle of the titans – government vs corporations and the upholding of the sanctity of contract could be reduced to the simple question of who pays? When, in the extraordinary event like AIG case, the contract is repudiated is it better that the institution and its’ shareholders bear the monetary burden or the taxpayers? I would think that taxpayers should be respected at the expense of the contract, but that would make me a socialist, using a simplistic tea party definition. In the end I do think that taxpayer is more important than shareholder, because shareholder is knowingly taking risks in return for possible profits and he should be prepared to take some kind of loss. Taxpayer on the other hand does not gamble and has no expectation of ever seeing that money again, at least not in the form of positive cash flow to his bank account. I just realized that this approach makes me simultaneously a true free marketer (read capitalist), because I think gamblers should not be bailed out and a commie, because I would support violating a contract (i.e. making Goldman take less than 100 cents on the dollar for AIG contracts)

But in the meantime, let’s wish Elena Kagan smooth sailing through confirmation process.