Bertolt Brecht wrote in his 1928 play, The Threepenny Opera:
“What is the robbing of a bank compared to the founding of a bank?”
With the slight modification of ‘bank’ to include more modern financial institutions, Brecht’s question actually seems to have aged pretty well. The upward transfer of wealth the United States has seen since the mid-1980s should underscore that the line was never merely rhetorical. And as in the 20s, it’s again become impossible to ignore the role that class plays in determining which transfers of wealth we deem legitimate and which we label as illegal or ‘socialist.’ Nowhere is this more readily visible than in the government’s response to the 2008 crisis.
Another quote from Brecht’s Threepenny Opera helps clarify how law and political institutions can become an instrument of privilege protection:
“The law was made for one thing alone, for the exploitation of those who don’t understand it or are prevented by naked misery from obeying it.”
This Brechtian view of law as a form of social/class control is not unfamiliar to scholars, progressive-era legal realists, or to more recent critics of America’s criminal justice system. But the impact of legalized expropriations have begun once again to reach America’s middle class, most notably in the recent mortgage crisis, and the extent to which legal structures benefit narrow class interests is becoming more genrally recognized.
There is a fantastic structural account of the way that legal and political systems have been commandeered by narrow private interests in a new book by Jacob Hacker and Paul Pierson, Winner Take All Politics. (There’s a great review at Crooked Timber). Their point is, roughly, that American inequality is not a result of market forces, but is at its base political—that is, it’s the result of legislation lobbied for by financial industry insiders and other private interests at the expense of an uniformed and unengaged public. And in making this point, they expose a longterm commitment — first by the right and later by Democrats who need to keep up — to building an organizational infrastructure that has strengthened corporate lobbying efforts and facilitated the delivery of rents to already powerful economic entities. The inability of elected leaders to resist campaign contributions has provided the critical mechanism whereby private interests capture regulators and obtain structural advantages by manipulating the legal system.
For a certain subset of the American population, disparities in the law and enforcement are seen as largely culturally acceptable. Take for instance, the Smith Barney veil fund manager, Martin Joel Erzinger, who allegedly ran over a cyclist with his Mercedes, but will not be facing felony charges because, according to District Attorney Mark Hurlbert, “Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession.” The failure of prosecutors to enforce existing law against America’s favored class becomes even more problematic when it comes to the mortgage fraud and other financial offenses that helped sink the global economy. But like this Colorado County district attorney and legislators across the country, law enforcement officials feel more beholden to a narrowly-conceived financial elite than to the constituency that pays his salary whose interests he purportedly represents.
The instrumentalization of law represents a fundamental breakdown in what is typically meant by rule of law, and it reveals a lot about how power is actually configured in the early 21st century American democracy. With income inequality at the highest levels seen since the onset of the Great Depression, US law makers and politicians are going to have to start trying harder if they want the public to go on believing that our legal system does more than accommodate itself to the desires of the wealthy. Structurally, massive reforms and an infrastructural overhall are likely necessary if the country’s governing institutions are to be brought back under democratic control.