Just 55 well-to-do white guys wrote the US Constitution during that Philadelphia summer of 1787. And to hear the conservatives of the current Roberts Court tell it, the Founding Father's "original intent" was for small groups of wealthy white guys to rule America ever since.
As we anxiously wait to see whether a Republican-dominated Supreme Court has the audacity to strike down the signature accomplishment of the elected Democratic branches and throw 30 million recently-insured Americans back on the street in what would almost certainly be a narrow 5-4 partisan decision, it's becoming increasingly obvious that in conservative eyes not all "judicial activism" is created equal.
Actions by the Supreme Court that advance personal freedom -- such as the rights of women to control their own bodies, or the rights of non-believers not to be proselytized to in public places, or the rights of criminal defendants to justice - are denounced by conservatives as assaults against The Natural Order of Things and subversive of both democracy and majority rule itself.
However, based on the behavior of these very same conservatives, judicial "activism" doesn't refer the actions of judges at all but rather to a state of non-conformance with the way conservatives think societies ought to be organized, with most power placed in just a few hands. And this is why conservatives don't look at their judicial power grabs as "activist" at all, but rather "restorative," in the same way Bush v. Gore wasn't "activist" because it restored Republicans to the White House or Citizens United wasn't "activist" because it restored plutocratic control to the American political process.
To wage class warfare you must first believe, as only conservatives do, that America is, and should always be, divided into separate and distinct classes, each with its own responsibilities and prerogatives.
That is why, says the Alliance for Justice, the Roberts Court "consistently pursues a political agenda that favors powerful corporate interests" while conservative Justices display a "striking willingness to engage in judicial activism to fulfill their ideological goals."
As they defend their timeless and "immutable principles" -- written in the very nature of the universe -- conservatives have also shown themselves to be uncommonly adaptive and flexible when it comes to inventing arguments out of whole cloth that advance their own self-interest.
Thus, ever since John Roberts became Chief Justice in 2005, the Alliance says the Supreme Court has "demonstrated an increased readiness to do whatever it takes to twist the law" in order to achieve the conservative movement's "decades-long campaign to elevate corporate profits and private wealth over individual rights and personal freedoms."
The severely right wing worldview that underlies the decisions of the Roberts Court fits loosely within a school of judicial thought known as "The Constitution in Exile," which Jeffrey Rosen in the New York Times defines as the belief that the entire social welfare and regulatory state in force since the New Deal "is unconstitutional as well as immoral."
Because the collapse of the capital markets in 2008 and those corporate scandals like Enron have provoked an important debate about the relative merits and dangers of the free market, while making chances of the political transformation conservatives seek seem "remote," Rosen says conservatives now appear "content, even eager, to turn to the courts to win the victories that are eluding them in the political arena."
This has produced what Rosen calls the "troubling paradox" of conservatives denouncing liberals for using the courts to "thwart" the will of the people while "succumbing to precisely the same temptation" themselves.
George F. Will is a perfect exemplar of this type. You will not find a conservative more hostile to, or contemptuous of, "the right to privacy" supporting a woman's right to choose than George Will. And yet, in his column just this week Will defends the right of the rich "to be left alone" as he insists a "vast" portion of life should be "exempt from control by majorities." And when our democratic system does not "respect a capacious zone of private sovereignty," Will thinks the courts need to step in to "police that zone's borders."
Conservatives cringe whenever they hear Thomas Jefferson's words insisting that "all men are created equal," which is why conservatives have always made the distinction between the "revolutionary" Declaration and a "conservative" Constitution that brings institutional order out of revolutionary chaos.
And yet, here is the conservative George Will saying the Constitution is a "companion" of the Declaration in that the whole point of government is to "secure pre-existing rights" not to "confer" new ones -- which is all beautiful poetry intended to obscure the reactionary recipe Will is concocting for preserving rank and privilege against popular agitation and change.
All restoration fantasies have their Golden Ages, says Rosen. And for the Constitution in Exile movement, that fondly-remembered yesteryear is the dominance the Republican Party enjoyed from the Gilded Age through the Roaring Twenties when business-friendly courts "steadfastly preserved an ideal of free enterprise" by routinely striking down laws meant to protect workers from the ravages of the unregulated market.
It was here that Mitt Romney's idea of a public corporation as a "person" first took root as conservatives sought to fashion the 14th Amendment's due process protections into what economic historian Kevin Phillips called "a sword conservative judges could use to cut down state and federal legislation for 'unreasonably' interfering with property and contracts."
Indeed, says Phillips, while judicial decisions voiding laws as unconstitutional were few and far between before 1850, during the Gilded Age they became commonplace as business-controlled state courts between 1885 and 1899 struck down more than a thousand local laws meant to protect workers.
One of the most notorious judicial power grabs was 1895's Pollock v. Farmer's Loan and Trust Co. in which the US Supreme Court invalidated the federal income tax. To the man on the street, the question before the bar was whether "consumption should pay all the taxes of the federal government or whether investment and speculation should bear their fair share of public burdens," writes William Swindler in his Court and Constitution in the 20th Century.
The New York World called the Court's decision "a triumph of selfishness over patriotism and another victory for greed over need."
A former Oregon governor said the ruling signified that "our constitutional government has been supplanted by a judicial oligarchy."
The St. Louis Post-Dispatch editorialized that "the corporations and plutocrats are as securely entrenched in the Supreme Court as in the lower courts which they take such pains to control."
Speaking for the Court minority, Justice John Marshall Harlan - "the Great Dissenter," who gave us the idea of a "colorblind" Constitution in his dissent the following year in Plessy v. Ferguson - said the Court's "disregard" for a century or more of history and practice "may well excite the gravest apprehensions" for it "strikes at the very foundations of national authority, in that it denies to the general government a power which is, or may at some time in a great emergency, such as that of war, become vital to the existence and preservation of the Union."
The late 1880s were a period of social unrest and class warfare - most of it provoked by the rich whose exploitations against the poor produced that great backlash known as the Progressive Movement.
And yet in the face of these mounting tensions, Harlan said the practical and direct effect of the Court's decision to invalidate a tax that had been in force since the Civil War "is to give certain kinds of property a position of favoritism and advantage that is inconsistent with the fundamental principles of our social organization -- and to invest them with power and influence that may be perilous to that portion of the American people upon whom rests the larger part of the burdens of government and who ought not to be subjugated to the domination of aggregated wealth any more than the property of the country should be at the mercy of the lawless."
So, how could it be that after more than a century of political, economic and legal evolution we have arrived right back where we started 100 years ago, with our political and legal branches once again beholden to -- and corrupted by -- plutocratic influences?
Well, to quote a famous American philosopher: "It's the economy stupid."
The late 1800s were a time very much like our own. A massive government jobs and stimulus program -- called The Civil War -- revolutionized the American economy and transformed a provincial agrarian society into a modern industrial one stitched together with government-subsidized transportation and communications networks.
During the 1870s and 1880s, the US economy expanded faster than ever before in the country's history, where between 1865 and 1898 the output of wheat increased 256%, corn 222%, coal 800% and railroad track mileage 567%.
Corporations - which are not "people" as Mitt Romney would have us believe but creatures of law and state -- became the dominant form of business organization.
And like any period of rapid economic change, new elites emerged to replace old ones, hardening into a new American plutocracy whose concentrated wealth helped elect a nearly unbroken succession of business-friendly Republican presidents.
From Abraham Lincoln in 1861 until Howard Taft in 1912, the Republicans occupied the White House for more than half a century, interrupted only by the split terms of Bourbon Democrat Grover Cleveland, whose hard money economic policies made him a Republican In Everything But Name.
This, in turn, led to the appointment of conservative Supreme Court justices drawn mostly from the ranks of corporate and railroad legal practice, whose views on the superiority of capital over labor were reflected in the priority given by the courts of this era to capitalists, private property and freedom of contract.
Just like today.
Michael Lind, author of the new book, Land of Promise: An Economic History of the United States, argues that it often takes American politics, government and the law a generation or two to catch up with technology-induced economic change -- like the unchallenged power exercised by the Robber Barons of the Gilded Age.
Lind lists three such revolutions in recent American history: The first, based on steam, produced the railroad, steam-powered factory and telegraph. The second was built around the internal combustion engine. And the most recent is the one we are experiencing today, based on the information technology that Lind says is rapidly transforming the way we work and play.
Lind says that the changes wrought by the IT revolution in our own time are undermining the political and legal structures of the New Deal by creating a new kind of "global corporation" that draws heavily on labor and supply chains extending across many nations but regulated by none.
The misalignment between political and economic power can grow for decades, says Lind, until the abuses and exploitations the political system finds itself powerless to address explode in a cataclysm of long delayed reform, such as the Civil War and Reconstruction, the Progressive Movement and New Deal and, perhaps today, Occupy Wall Street.
Essential reforms today are being filibustered and delayed because conservatives "mindlessly cling to the half-century-old dogmas of right-wing opponents of the New Deal," says Lind.
And the reason they do, says New York Times economist Paul Krugman, is "soaring inequality."
The huge wage gaps that have opened over the past 30 years as incomes have tripled at the top while stagnating at the middle and bottom is at the root of both America's polarized politics and the country's inability to adequately respond to crisis, says Krugman.
Rising incomes at the top have created a New American Plutocracy that has warped the nation's intellectual and political life, says Krugman, as the super-rich have bought themselves a political party as insurance against the future -- like some kind of credit default swap.
As the wealthy become ever more aware of themselves as a distinctive and, in their own minds, embattled class, this disengaged plutocracy begins to exhibit all the classic defensive characteristics of a reactionary caste, whose inability to relate to those outside their charmed circle is perfectly manifested in Mitt Romney's wooden and socially inarticulate behavior around other human beings.
The widening gap between the parties, which is directly related to higher income inequality, is occurring because Republicans are moving far to the right not because Democrats are moving left. Krugman says we see this most obviously in the Republican proposals for health care reform that the President adopted as his own template for Obamacare only to see Republicans denounce their own ideas as Marxist-Leninist "Socialism!"
What all of this adds up to is that Republicans, and their appointees on the Supreme Court, are no longer engaged in the task of genuine governing but in the narrow protection of privilege at all cost.
We have no way of knowing for certain how the Roberts Court will rule on the constitutionality of Obamacare or its individual mandate.
But it's possible that the rigor mortis of class and caste thinking is so far advanced among the Court's reactionary majority that it might foolishly provoke what Justice Harlan cautioned his own colleagues against more than a century ago when he warned that by privileging power over people the Court's conservatives were inviting "a contest which in some countries has swept away, in a tempest of frenzy and passion, existing social organizations, and put in peril all that was dear to the friends of law and order."