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The End of the Cold War: Can American Constitutionalism Survive Victory?

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The End of the Cold War: Can American Constitutionalism Survive Victory? University of Wyoming College of Law Law Archive of Wyoming Scholarship Faculty Articles UW College of Law Faculty Scholarship 8-13-2015 The End of the Cold War: Can American Constitutionalism Survive Victory? Stephen Matthew Feldman University of Wyoming College of Law, [email protected] Follow this and additional works at: https://scholarship.law.uwyo.edu/faculty_articles Recommended Citation Feldman, Stephen Matthew, "The End of the Cold War: Can American Constitutionalism Survive Victory?" (2015). Faculty Articles. 128. https://scholarship.law.uwyo.edu/faculty_articles/128 This Article is brought to you for free and open access by the UW College of Law Faculty Scholarship at Law Archive of Wyoming Scholarship. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Law Archive of Wyoming Scholarship. The End of the Cold War: Can American Constitutionalism Survive Victory? STEPHEN M. FELDMAN* TABLE OF CONTENTS I. Introduction................ ........ 262 II. Pluralist Democracy Evolves: Free Expression, Judicial Conservatism, and the Cold War.......... ............ 268 A. The Early Cold War, Free Expression, and Moral Clarity......268 B. The Flip Side of the Cold War: Liberty and Equality in an Emerging Consumers' Democracy........... ........ 275 1. Civil Rights and Democracy.......... .......... 275 2. Capitalism and Democracy......... ......... 282 III. Democracy, Inc., and the End of the Cold War.......................297 A. The Rise of Democracy, Inc.: An Attack on Government......300 B. The Roberts Court in Democracy, Inc............ ....... 314 IV. Why We Should Worry About Democracy, Inc.....................324 V. Conclusion.....................................337 Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. I thank Scot Powe, Mark Tushnet, Howard Gillman, and Sam Kalen for their comments on earlier drafts. Parts of this Essay are derived from papers I presented at the 2013 Yale Law School Freedom of Expression Scholars Conference and a 2013 University of Virginia Constitutional History Conference (focused on Charles Beard's Economic Interpretation of the Constitution). I thank the participants at both workshops for their suggestions and am especially grateful to Vincent Blasi and Mel Urofsky for their detailed comments on my papers. 261 Electronic copy available at: http://ssrn.com/ abstract=2642445 262 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 41 I. INTRODUCTION The nation's Cold War battle against the Soviet Union pervasively influenced American law and society, as numerous scholars have observed.' The Cold War, for instance, spurred the strengthening of civil rights and the capitalist economy. 2 The federal government needed to protect civil rights, at least symbolically, to deflect Soviet denunciations . of democracy.3 Meanwhile, the ostentatious exhibition and use of American consumer products contrasted American economic prosperity with Soviet struggles. Thus, during the Cold War, the government and the capitalist leaders were bonded together in a struggle against the communist enemy.5 The overriding desire for Cold War victory tempered potential political demands for laissez-faire governance.6 Despite the scholarly attention showered on the Cold War, a shockingly small number of authors have even considered the effects of the end of the Cold War on American law and society.7 This article takes on that task. In fact, the end of the Cold War, in the late 1980s and early 1990s, profoundly influenced national development.8 Most important, the nation's Cold War victory generated unanticipated and perverse changes in American democracy.9 The national victory unleashed corporate wealth from its Cold War strictures.10 The government and capitalists were no longer fighting 1. Some helpful sources on the Cold War include the following: H.W. BRANDS, THE DEVIL WE KNEW: AMERICANS AND THE COLD WAR (1993); GREG CASTILLO, COLD WAR ON THE HOME FRONT: THE SOFT POWER OF MIDCENTURY DESIGN_(2010); RICHARD B. DAY, COLD WAR CAPITALISM: THE VIEW FROM MOSCOW 1945-1975 (1995); MARY L. DUDZIAK, COLD WAR CIVIL RIGHTS: RACE AND THE IMAGE OF AMERICAN DEMOCRACY (2000); JOHN LEWIS GADDIS, THE COLD WAR: A NEW HISTORY (2005); MELVYN P. LEFFLER, A PREPONDERANCE OF POWER: NATIONAL SECURITY, THE TRUMAN ADMINISTRATION, AND THE COLD WAR (1992); RICHARD SAULL, THE COLD WAR AND AFTER: CAPITALISM, REVOLUTION AND SUPERPOWER POLITICS (2007); MARTIN WALKER, THE COLD WAR: A HISTORY (1993). 2. See DUDZIAK, supra note 1, at 6; see CASTILLO, supra note 1, at viii-xi. 3. See DUDZIAK, supra note 1, at 6. 4. See CASTILLO, supra note 1, at viii-xi. 5. See supra notes 1-4 and accompanying text. 6. ROBERT L. KERR, THE CORPORATE FREE-SPEECH MOVEMENT: COGNITIVE FEUDALISM AND THE ENDANGERED MARKETPLACE OF IDEAS 32-33 (2008). 7. See DUDZIAK, supra note 1, at 15. 8. See id. 9. See id. 10. Helpful sources discussing the development of corporations as well as globalization include the following: see generally JOEL BAKAN, THE CORPORATION: THE PATHOLOGICAL PURSUIT OF PROFIT AND. POWER (2004); RICHARD FRANKLIN BENSEL, THE POLITICAL ECONOMY OF AMERICAN INDUSTRIALIZATION, 1877-1900 (2000); BARRY EICHENGREEN, GOLDEN FETTERS: THE GOLD STANDARD AND THE GREAT DEPRESSION, 1919-1939 (Robert W. Fogel & Clayne L. Pope eds., 1992); JEFFRY A. FRIEDEN, GLOBAL CAPITALISM: ITS FALL AND RISE IN THE TWENTIETH CENTURY (2006); LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW (2d ed. 1985); KERMIT L. HALL & PETER KARSTEN, THE MAGIC MIRROR: LAW IN AMERICAN HISTORY (2d ed.2009); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW, 1836-1937 (1991); JAMES WILLARD HURST, THE LEGITIMACY OF THE BUSINESS Electronic copy available at: http://ssrn.com/ abstract=2642445 2015] THE END OF THE COLD WAR 263 together against a common foe." To the contrary, capitalists now seemed to view government as its enemy.1 2 Demands for laissez-faire policies became common and overt, as did denigration of democratic government.13 As a result, American democracy transformed into Democracy, Inc., a government system dominated by wealthy individuals and corporations.14 The conservative justices on the Supreme Court-John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy- have stamped Democracy, Inc., with a constitutional imprimatur." In a wide variety of cases, the Court has promoted business, especially corporate business, and protected the economic marketplace from government regulation." In fact, under the approving eye of the Robert's Court, the private sphere has become so bloated with power that it has, in effect, CORPORATION IN THE LAW OF THE UNITED STATES 1780-1970 (1970); JOHN MICKLETHWAIT & ADRIAN WOOLDRIDGE, THE COMPANY: A SHORT HISTORY OF A REVOLUTIONARY IDEA (2003); KENICHI OHMAE, THE END OF THE NATION STATE: THE RISE OF REGIONAL ECONOMIES (1996); JOSEPH E. STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS (2002); BENJAMIN R. TwIss, LAWYERS AND THE CONSTITUTION: HOW LAISSEZ FAIRE CAME TO THE SUPREME COURT (1962); LEVIATHANS: MULTINATIONAL CORPORATIONS AND THE NEW GLOBAL HISTORY (Alfred D Chandler, Jr. & Bruce Mazlish eds., 2005) [hereinafter LEVIATHANS]; Oscar Handlin & Mary F. Handlin, Origins of the American Business Corporation, 5 J. ECON. HIST. (1945); Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 GEO. L.J. 1593 (1988) [hereinafter The Classical Corporation in American Legal Thought]; Pauline Maier, The Revolutionary Origins of the American Corporation, 50 WM. & MARY Q. 51 (1993); Charles W. McCurdy, American Law and the Marketing Structure of the Large Corporation, 1875-1890, 38 J. ECON. HIST. 631 (1978). Helpful sources discussing economic development in general (or in the United States) include the following: see generally JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY AND OTHER WRITINGS 1952-1967: AMERICAN CAPITALISM, THE GREAT CRASH, 1929, THE AFFLUENT SOCIETY, THE NEW INDUSTRIAL STATE (James K. Galbraith ed., 2010); ROBERT HEILBRONER & WILLIAM MILBERG, THE MAKING OF ECONOMIC SOCIETY (Leah Jewell et al. ed., 10th ed. 1998); ROBERT HEILBRONER & AARON SINGER, THE ECONOMIC TRANSFORMATION OF AMERICA: 1600 TO THE PRESENT, (David Tatom et al. eds., 4th ed. 1999); RONALD E. SEAVOY, AN ECONOMIC HISTORY OF THE UNITED STATES FROM 1607 TO THE PRESENT (2006). 11. See KERR, supra note 6, at 32. 12. Helpful sources on the relationship between democracy and capitalism include the following: see generally FRED BLOCK & MARGARET R. SOMERS, THE POWER OF MARKET FUNDAMENTALISM: KARL POLANYI'S CRITIQUE (2014); TIMOTHY K. KUHNER, CAPITALISM V. DEMOCRACY: MONEY IN POLITICS AND THE FREE MARKET CONSTITUTION (2014); THOMAS PIKETTY, CAPITAL IN THE TWENTY- FIRST CENTURY (Arthur Goldhammer trans., 2014); DANI RODRIK, THE GLOBALIZATION PARADOX: DEMOCRACY AND THE FUTURE OF THE WORLD ECONOMY (2011); SIDNEY A. SHAPIRO & JOSEPH P. TOMAIN, ACHIEVING DEMOCRACY: THE FUTURE OF PROGRESSIVE REGULATION (2014); JOSEPH E. STIGLITZ, THE PRICE OF INEQUALITY (2013). 13. See KERR, supra note 6, at 32-35. 14. DEMOCRACY INCORPORATED is the title of a book by Sheldon S. Wolin, SHELDON S. WOLIN, DEMOCRACY INCORPORATED: MANAGED DEMOCRACY AND THE SPECTER OF INVERTED TOTALITARIANISM xi (2008), while DEMOCRACY, INC., is the title of a book by David S. Allen. DAVID S. ALLEN, DEMOCRACY, INC.: THE PRESS AND LAW IN THE CORPORATE RATIONALIZATION OF THE PUBLIC SPHERE 1, 12 (2005). 15. See, e.g., Citizens United v. FEC, 558
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