Today I was listening to Scott Galloway, a professor at University of California-Berkeley, make an argument for breaking up the “Big Four”: Amazon, Apple, Facebook, and Google. His premise was that given their public mantra of trying to make the world a better and more connected place, in the end, their only reason for being was “to sell Nissans.” The FANGS, when all is said and done, are not vehicles for altruism, but instruments of capitalism. They are media companies that either use free content (Facebook) or create or pay for content (Amazon) to grab eyeballs for advertisers.
I can say the same thing about the United States. Between now and November 11th, during the political party conventions, campaign rallies, and debates, America’s candidates for elected office will attempt to sell Americans on how much better they are at creating jobs, keeping Americans safe from criminals, being transparent about governance, and carrying themselves in a decent, trustworthy manner. And pursuant to the rule of law, all citizens, entities, and institutions are accountable to laws that are publicly promulgated; equally enforced; independently adjudicated; and consistent with international human rights principles.
Like Professor Galloway, I have cut through the “Madison Avenue” selling points of the United States. I believe that an accurate general theory of law relies on a cogent and clear history of the United States. The United States is a result of an opportunity taken by its wealthy elite to create its own country while the mother country, Great Britain, was distracted by competition with its European neighbors. The original thirteen colonies were a trading post for Great Britain, surrounded by other trading posts established by France and Spain.
To exploit resources and benefit from trade, opportunistic Anglos created the United States. As part of the narrative that promoted independence, America’s founders created fear in the colonists by describing a tyrannical monarch that interfered with the passing of legislation in the colonies; repeatedly dissolved colonial houses of assembly ; impeded the naturalization of immigrants, and imposed taxes on colonists where colonists were not represented in Parliament.
After selling the fear narrative and winning a military battle, it was off to the politics of creating a government that would not unreasonably infringe on the commercial and human rights of its citizens in exchange for said government’s right to manage the exploitation of resources; to tax its citizens, and to secure the infrastructure necessary for the movement of commerce.
As a political and legal document, the current Constitution captures this history, but I think what is lost on the courts is the obligation they have under precedent to interpret political law under this narrative; the narrative of the winner. Interpretation of political law should be based on the winner’s world view of the political-economic environment.
What is that environment? That first, the United States is a customs union with a government responsible for protecting infrastructure and via economic policy, the management of natural and human resources. Second, it is a trading nation. It was birthed out of the vision of traders, merchants, and explorers coming to North America to first and foremost provide returns to the capital spent on exploring America in the first place. Third, any and all law is a passed with the primary intent of regulating behavior in order to maintain an environment for increasing returns to capital. Rights are the collateral damage the investor has to endure to see her returns. America’s projection of altruism, morals, etc., are just part of a marketing campaign that sells America as the place where you come, work, and are taxed. The optics, while necessary are secondary.