A “Right” To Corporate Profit? Tea Party Constitutional Hypocrisy On Display.

by Michael Matheron · October 17, 2011

“We’ll talk to our [customers, teammates and shareholders and]

they’ll understand what we’re doing —

understand we have a right to make a profit.”
Brian Moynihan, CEO Bank of America

addressing the $5.00 ATM fee controversy

October 5, 2011

Brian Moynihan’s no Tea Partier, by any means. He contributes to mostly Democratic party candidates, for example. But as Bank of America’s CEO, he’s a heavyweight member of the herd – of bankers, that is – whose excesses trampled our economy into the dirt back in the housing (Ka)boom. Consequently, he and his kind, are not well-liked around Main Street. In fact, BOA owns – to its great regret – Countrywide, the mortgage company that was among the leaders in dispensing toxic mortgages. In any event, I think that
Moynihan was speaking of a general “right” for BOA to generate profit, not a legal right embedded in the U.S. Constitution.

Far too many Tea Partiers disagree with that assessment, and see no contradiction or hypocrisy in doing so. Their views put self-interest well above the common good. In fact, it’s hard to speak to them about the general welfare of the country’s citizens, so distant are these Ayn Rand wannabes from accepting even the validity of the concept. Their self-interest is their defining attribute, it’s absolute in its effect and its reach.

These folks, though, would have no luck finding the term “corporate right to profit” in the non-Biblical document they revere above all others, the U.S. Constitution and the Bill of Rights (which they do not hold in very high regard at all, excepting the 2nd, 9th, and 10th Amendments).

As for the right to profit, corporations or individuals, where then do they find this “right”? Here’s an example from the inimitable RS Redstate:

“We believe that everyone in the country has the right to profit by their own hard work and effort. Profits lawfully gained are no sin, they are celebrated.”

The Penumbra Of Tea Party Hypocrisy

This commenter believes in an expansive right to profit, one and all. This is surely not a legal argument, although I’d guess he or she believes it is. Notwithstanding, Tea Partiers en masse are quick to contend they are making legal – constitutional – arguments, when they are not. The Tea Party boasts that it’s happily overrun by constitutional literalists. And as “originalists,” they loudly and angrily decry others who find “general” rights within the so-called penumbra of the text, i.e. “a body of rights held to be guaranteed by implication in a civil constitution.” The best known example of this is the long debate over the “right to privacy” that presently, for example, protects a woman’s (more and more) limited right to be free from most government intrusion into her decision to consider and seek an abortion.

This, and other privacy rights, developed as a result of one of the more famous Supreme Court decisions, 1965’s Griswold v. Connecticut. Here is the memorable wording of Justice William O. Douglas:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those [specific constitutional] guarantees that help give them life and substance. Various guarantees create zones of privacy. GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)

J’Accuse!

So, my Tea Party nemeses, where exactly do you find the words specifically creating a right to profit from business activities? After all, you claim three manifest virtues: constitutional literalism, consistency of values, and honesty. Please then, reveal the specific “right to profit” section or clause of the Constitution. We’d all be very pleased should you do that.

Then, if our bakeries or toy stores have a bad quarter or two, wed have standing to sue someone or other in federal court – or the public in general? – for violating our constitutionally guaranteed right to profit . . .