Constitution Betrayed: The Endangerment of the American Democratic-Capitalist System

Abstract

In numerous constitutional and non-constitutional cases, the early Roberts Court conservatives fully accepted and bolstered Democracy, Inc. With the conservative Neil Gorsuch having replaced the late Justice Scalia, the new Roberts Court is unlikely to change direction in any substantial way. Nevertheless, this chapter explains how the early Roberts Court’s neoliberal libertarian interpretation of the Constitution is problematic on multiple counts. In fact, with the Court’s support, our American constitutional democracy is now weaker than at any point since the mid-1930s. The election of Donald Trump as president is a symptom of Democracy, Inc. Most likely, without Democracy, Inc., and the Court’s approval of it, Trump would not be president. But the ascendancy of the thin-skinned and authoritarian Trump only increases the vulnerability of our Constitution. In this crisis, will the new Roberts Court abet in the potential demise of our democratic-capitalist system? This chapter critiques the early Roberts Court’s interpretation of the Constitution from three perspectives: the framing and originalism; social and political theory; and the practical effects of laissez faire in history.