Power & Market

The Supreme Court and the Right to Not Bake a Cake

The Supreme Court and the Right to Not Bake a Cake

Anyone who claims there's too much democracy in the United States needs to keep in mind that American law and policy is ultimately decided by five millionaires at the Supreme Court. 

This week, we're being reminded that the Supreme Court of the United States is hearing arguments in the case of a small-time baker who refused to bake a cake for a gay wedding. This, apparently, is a matter of such importance that it requires the intervention of the federal government and its court system to decide for whom a tiny small business shall be forced to bake desserts. In other words, the court's majority of five people will decide for 320 million people what is mandatory for anyone who wants to open a small business in the United States. 

The fact that Americans regard this sort of thing as perfectly natural and legitimate illustrates just how thoroughly Americans have abandoned all notions of self government and any opposition to rule from distant, powerful elites. 

Opponents of Donald Trump may be wringing their hands about the rise of populism, but the public's continued deference to the Supreme Court illustrates quite well that populism in the United States, far from growing out of control, is quite timid and of no threat to anyone currently in power. 

In the discussion of the Court's decision to hear the case, we're reminded of two important issues:

1. The Supreme Court's ability to decide the Constitutionality of every law in the United States — from local ordinances to federal statutes — is based on a fanciful myth.

2. The American legal concept of "public accommodation" essentially abolishes property rights. The proper remedy is to restore property rights — and to steer clear of endless and pointless debates about religious freedom or freedom of speech. 

On the first point, see:

"The Mythology of the Supreme Court" by Ryan McMaken - A discussion of how the Supreme Court jealously protects its political power and encourages an aura of manufactured majesty with measures such as prohibiting television cameras in its chambers. 

"Abolish the Supreme Court" by Ryan McMaken — in the wake of the death of Justice Scalia, we examined how appointments to the court have always been political appointments, and often have been done for purposes of political payback and pandering to certain special interests. Judges are not, and never have been, lofty legal scholars who steer clear of partisan politics. 

"Scalia's Fate" by Jeff Deist: Deist reminds of of several important points about the Court: 

Culture wars should not be legal wars. As Ron Paul explained time and again during his years in Congress, the public remains deeply misinformed about several key points:   

  • The concept of judicial review is a fabrication by the Court, with no basis in Article III. 
  • Constitutional jurisprudence is not constitutional law.
  • The Supreme Court is supreme only over lower federal courts: it is not supreme over other branches of government.
  • Congress plainly has constitutional authority to define and restrict the jurisdiction of federal courts.

And on the matter of public accommodation, we've taken a look at the several ways that micromanaging the actions — and even the imagined intent — of small business owners has long been an especially pointed assault on private property orchestrated by the Courts and Congress. 

"The Trouble with Public Accommodation" by Ryan McMaken - if we're worried about the availability of resources for disfavored minority groups, the answer lies in more freedom, not less. 

"'Discrimination' Isn't About Religion, It's About Private Property" by Ryan McMaken - framing a baker's of photographers as a matter of "religious freedom" ignores the fact the issue is really just about property rights. 




All Rights Reserved ©
Support Liberty

The Mises Institute exists solely on voluntary contributions from readers like you. Support our students and faculty in their work for Austrian economics, freedom, and peace.

Donate today
Group photo of Mises staff and fellows