For a long time now in America, the legislative and executive branch have been steadily chipping away at our liberties from the edges by bills and rules both at the national and state level. This process, as the founding fathers warned continually, was inevitable without constant, strident effort to restrain government.
Yet it is the judicial department which has done a great deal of damage too, usually without notice or remark. Typically they so by confirming encroachment on liberty by the other two branches. The most classic examples lately come from the federal government with Citizens United and the ACA "Obamacare" upheld by the Supreme Court.
Unfortunately, the default position of almost all courts in the land is to support, defend, and uphold what the government does. It has been this way for a long time, and saw its most clear establishment in the years of FDR where the courts after initial constitutional concerns buckled under and started to rubber stamp socialist schemes we're still burdened with.
An examination of how this works showed up on Instapundit, by Elizabeth Price Foley. She writes about a case in Arizona where a milk producer called Sarah Farms is suing over a regulatory change:
The Supreme Court is being asked to review a very interesting case coming out of Arizona, in which a milk producer, Sarah Farms, is challenging the constitutionality of a federal law, the Milk Regulation Equity Act of 2005, which required them to abide by a minimum price for milk (they were previously exempted from this federal minimum milk price because they were “producer-handlers” who bottled and distributed their own milk). There is evidence that the 2005 federal law was passed at the behest of large, competing milk producers, who wanted to subject Sarah Farms to federal minimum pricing. The owners of Sarah Farms assert that the federal law represents an unreasonable (and hence, unconstituitonal) interference with their business.Why is there a minimum price for milk? Well it has to do with a scheme to protect farms - a lot of these came up in the early 20th century under a string of Republican governments who established a lot of subsidies and regulations at the federal level. In this case, Mrs Foley argues that the price was set up to help big time dairy operations.
Like most cronyism, this system would be a powerful business concern or group of businesses are using federal law and regulation to undercut competition. If everyone has to charge at least a certain amount for milk, that means no small organization can produce milk cheaply and put it on the market under a certain level. Cronyism isn't simply about getting rich, its often more about crushing potential competition and problematic smaller businesses - big corporations can eat losses and costs better than little ones who often are barely making money as it is.
However, I don't know what the big time dairies would argue on this topic, so I reserve judgement whether this is actually cronyism or not. In principle I'm opposed to the government setting minimum or maximum prices in any setting. Stay out and let the market handle it is almost always the best approach over the long term. But I'd need to know more before making any confident statement on the issue.
What I do want to note, however, is the next bit Mrs Foley writes:
Under today’s jurisprudence, lawsuits alleging infringement of economic rights are presumed constitutional, and the citizen must prove that there is no rational basis for the law. As a result, laws that regulate the economy are rarely overturned.In other words, the courts do not presume that liberty is foremost and businesses should be as free as possible. Their starting point is that the government is probably right and businesses have to prove otherwise. Its like the theoretical system for criminal law: you are presumed innocent and the state has to prove guilt. Except in this case, its in reverse: the state is presumed right and you have to prove otherwise.
That the courts have gotten to this point at all demonstrates the corrosive effect governments have on liberty. Tiny inch by inch they infiltrate and seep into the system until they've established such a foothold they've turned liberty on its head. I doubt courts started out presuming the government was right, but over time ruling by ruling and precedent by precedent, they ended up reaching that point, and now its very difficult to reverse.
The left would have you think the US Supreme Court is packed with radical right wing freaks who gave Bush the presidency and are lusting to ban fun, but the truth is the court rules against liberty nearly as often as it does for it. This is essentially the same composition if ideas on a court that ruled governments can seize property to give to businesses in the name of economic development. The same court that ruled that governments have absolutely no power under the constitution to consider any sexual act illegal. The same court that ruled on Citizens United and the ACA as I noted above. So I just don't trust the Supreme Court to rule in the name of liberty and a free economy whatsoever. Not only would it mean a reversal of decades of accrued legal presumption, but it would be a major shift in the direction of economic law for the United States.
And if there's one thing Chief Justice Roberts has proven, its that he's terrified of being considered radical or criticized by the legal community - he wants his legacy to be glowing and saintlike, not controversial and troubled. And he's willing to have people outside the bulk of the legal profession be upset and argue as long as the guys who write his history like him.
So I don't have any confidence whatsoever that the Supreme Court will rule that telling an industry it can't charge under a certain amount is in any way a violation of liberty, the constitution, or good practice even when it plainly is.