Litigating Against Subsidies: Bleg

My last post on agriculture subsidies got me wondering, particularly in combination with my support of judicial "activism" in the sense of overturning laws. The question I was wondering about is this: Has there ever been an attempt to overturn pork barrel spending through a lawsuit where the basis for the suit was the spending's non-budgetary consequences?

The last part of this question is the important part. There have been numerous attempts to overturn various government programs in the past; however, they almost never work because the person suing the government rarely has legal standing to sue (the courts have repeatedly found no standing where the basis for standing is the plaintiff's status as a taxpayer). What I am not aware of, however, is a situation in which someone sued the government because the government's spending policy had a direct, negative effect on them.

Specifically, has there ever been an instance where the government was sued on the grounds that a subsidy had direct negative effects on a taxpayer in the form of higher costs? If so, was there standing? It's been a few years since I delved into that area of law, but I seem to recall precedent from law school that would suggest there would be standing.

If there is legal standing, then the second question would be: what causes of action, if any, would have the best chance of success in overturning agriculture subsidies?

The Evil of Agriculture Subsidies

Publius at Obsidian Wings hits on something that I've been meaning to post on for a couple of weeks:

Instead, farm bill opponents should have spent more time arguing that it’s a substantively bad bill — more precisely, it’s a bill that jeopardizes health and
increases hunger. For one, the subsidies of corn, sugar, and meat play a huge
role in our nation’s obesity problem (not to mention in the broader lack of nutrition). Ezra Klein in particular has been criticizing the meat subsidies lately (see here and here). Second, the ethanol subsidies are, quite literally, about the worst policy you could imagine. They not only actually harm the environment (mostly through land use changes/deforestation), they are quite literally starving people across the globe.... In fact, you could easily imagine a progressive-evangelical political coalition forming around this issue.

I believe that this issue is one that provides the blogosphere an actual opportunity to have an effect on the real world. Although I lack the time, prestige, or influence to lead such an effort, I am hereby proposing an organized blogosphere campaign against agriculture subsidies, especially Demon Ethanol. As I wrote in a comment to Publius' post:

I've been meaning to write about this myself for about a week now. The estimates I have seen have attributed at least 25% of the increase in food prices to ethanol; the other factors are largely out of anyone's control. I read last fall that the food crisis could cause literally hundreds of millions of deaths over the next decade worldwide. Even using the low end of that estimate, it's likely that 25% of that number would still be in the tens of millions. Which means that ending ethanol subsidies (and Western agriculture subsidies more generally) could save tens of millions of lives.

Frankly, if ever there was an issue where the blogosphere actually could have a positive impact on a policy, it would be this. The interests causing the subsidies are small in number; they are successful only because: 1. (Most importantly) Almost no one cares about the farm bill other than the people who seek to benefit from it, meaning that there is no political risk in supporting the farm bill; 2. They are well organized; and 3. The size of the subsidies makes it rational for them to spend an unbelievable amount of money lobbying on the issue and making campaign donations. Without those factors, it would be irrational for politicians to support the subsidies, especially considering how tiny in number the subsidy advocates are. An organized internet campaign against subsidies would actually have a chance of success in a way that other organized internet campaigns can only dream of, because the main reason these subsidies exist is that there is no political risk in supporting them. An organized internet campaign would change that equation substantially by raising awareness of the issue. This is not like other issues where there is or would be a vocal and sizable constituency on both sides no matter what you do, thereby making an organized campaign highly unlikely to succeed.

Moreover, this is an issue that ought to have appeal to just about every part of the blogosphere: Liberals ought to be motivated by it because it is an actual opportunity to strike a blow against corporate interests. Conservatives ought to be motivated by it because it is such an egregious example of government waste. Libertarians ought to be motivated by it because it is the epitome of everything we view as being wrong with government. And most importantly all sides ought to be motivated by the fact that it has such devastating effects on people all over the world.

One more thing- for those seeking an apolitical contribution to helping the world's hungry, Dyre Portents is conducting an internet blogosphere food drive that I highly recommend.

Disturbing Admission by Camden, NJ Police Dept.

This post is far from my usual subject matter, but I think the events described in it are worth publicizing so others might do something with it.

While doing research this morning for a case I'm working on, I stumbled across a recent decision out of the US District Court for New Jersey. The case, Monaco v. City of Camden, 2008 U.S. Dist. LEXIS 10455 (D. N.J. Feb. 13, 2008) contains a revealing insight into the way in which internal affairs investigations are conducted when it comes to allegations of police brutality and harassment. The case itself stems from a fight in 2002 outside of a concert to which police responded. The plaintiff in the case was not involved in the fight, but was nonetheless allegedly brought to the ground, beaten, and arrested, suffering numerous injuries in the process. He was then allegedly detained for two hours before being interrogated. During the interrogation, he was allegedly accused of drinking in public (of all things), ordered to confess to this "crime," and then threatened with additional charges should he choose to fight the public drinking charge in court. He eventually pled "not guilty" to the charge, and the Department refused to provide him with information substantiating the charge upon his request; as a result, the charge was eventually dismissed for lack of prosecution. The plaintiff ultimately filed suit against the City (and the relevant, but mostly unnamed, police officers) for civil rights violations and for malicious prosecution. After discovery, the City and police officers moved for summary judgment, which the court wound up denying in part and granting in part (the reasons for which are unimportant for purposes of this post).

The decision on the summary judgment motion contained the following paragraphs, which suggest some deep-seated problems with the way in which complaints against the police are handled.

Shortly after the incident at the [concert] occurred, Plaintiff and Police Department Captain Joseph Richardson were each interviewed on television by a news reporter about the fight and the police officers' response. Captain Richardson stated in the interview that if Plaintiff submitted a complaint about the events of May 31, 2002, the Police Department would investigate the matter.

It appears that the Police Department did not investigate Plaintiff's allegation that he had been the victim of police misconduct until February 2005, after Plaintiff filed his Complaint in this action. Detective Xemaril Cruz, who works in the Police Department's Internal Affairs division, was assigned to investigate Plaintiff's allegations. As part of her investigation, Detective Cruz conducted what she referred to during her deposition as "interview[s]" of the police officers who might have come into contact with Plaintiff on May 31, 2002. Detective Cruz did not ask the officers any questions at these interviews, but instead simply informed them that an Internal Affairs investigation was underway and that they were required to submit reports to her summarizing their recollections of the [concert] incident. Based on the information she received in these reports, Detective Cruz determined that Plaintiff's allegations had not been sustained, which, as she explained during her deposition testimony, meant that "there was an incident and there was an assault involved, but it could not be determined if it was the officers who . . . committed the assault . . . due to the large fight that took place." Detective Cruz did not speak with the officers in order to clarify these indeterminate findings or clarify the contents of their reports. When asked during her deposition why she did not speak with the officers and relied exclusively upon the contents of their reports, Detective Cruz replied that "that's the way that we do it."

(my emphasis).

As disturbing as I find the fact that a police department would wait three years to investigate a complaint, only after that complaint was the basis for a lawsuit, and that the "investigation" would be no more than a request for the officers to provide their own written reports of the incident, it is the last sentence that is most disturbing. That sentence makes clear that the standard practice of the Camden Police Department (and most likely many other departments) for investigating complaints is to merely give the officers involved a pen and paper to describe the events at their leisure. No questioning each officer individually, no requiring the officers to answer questions on the spot, just a report that the officers could work on at their leisure and on which they could easily collaborate.

One More Post on Judicial Activism

Marc Moore at the Poligazette has a thoughtful response to my two recent posts arguing in favor of a kind of judicial activism. His response warrants a couple of clarifications on my part:

1. Not all judicial activism is "good." There are instances where the courts in fact do make new "law" without simply ruling on the constitutionality or unconstitutionality of a law or a part of the law. In such instances, the courts are actually having a coercive effect on private citizens. The example provided by Marc is directly on point here: it was one thing for the courts to overrule "separate but equal" laws, but quite another to then mandate school busing. My point about judicial activism being a nearly-exclusive good is limited to situations where the court is overturning a law/executive action or significantly limiting its application. I am extremely suspicious of instances where the court acts "passively" and chooses to uphold a law under popular pressure (think, e.g., of the New Deal cases), but I am equally suspicious of judicial "activism" wherein the court goes beyond protecting a less-powerful faction and actually makes that less-powerful faction the more powerful faction. In the case of the California decision, though, the court is simply insisting that the law be "blind" as to the two factions in issue, which is precisely the purpose of "equal protection."

2. My argument that the judiciary exists "primarily" as a means of protecting the minority against the tyranny of the majority is based on a couple of logical steps that I did not lay out in the original post. Marc would have preferred that I wrote "that the judiciary’s primary function was to defend the Constitution against increasing irrelevancy in the face of excessive expansions by the other two branches. To define and defend the fundamental laws and values of the nation, in other words." In a sense, Marc's version is accurate; however, my view- based largely on my unhealthy obsession with Federalist #10 - is that the protection of less-powerful factions from more-powerful factions is a (maybe even "the") central "fundamental value of the nation" as expressed in the Constitution. Put another way, the American experiment in self-governance is in my view fundamentally based on the desire for self-government wherein the government is hamstrung as much as possibly from acting tyrannically. Because the legislative and executive branch have the sole power to make and execute* the law as they see fit, it falls on the courts to ensure that they are not doing so in a way that can be construed as tyrannical under concepts like "equal protection,"** freedom of speech and religion, etc.

3. Marc also writes that:

The issue that conservatives have with the ruling is the recent tendency for courts to drive change into every state in the union, whether it’s wanted locally or not. The Constitution is also supposed to divide powers between the state and federal level, a division that, to the framers, had been made quite clearly in the language of the document. Unfortunately, the balance of power has tilted dramatically in favor of the federal government.

Conservatives do no disdain the Constitution as Mark suggests. But many do disapprove of actions taken in its name without justification. If the gay marriage debate were to end with the California case I suspect that most conservatives would be happy enough to let the ruling stand. But it won’t and that’s the rub.

My dispute with this statement is that what we are talking about here is a state court decision, not a federal court decision. I, for one, most certainly agree that the balance of power has tilted far too dramatically in favor of the federal government on most issues. But this is why I do not understand the desire of so many conservatives to seek federal intervention (in the form of a Constitutional amendment) on an issue that is being decided on a state level. It is these conservatives who, consciously or not, are showing a disdain for the very Constitutional principles they once sought to uphold.

Moreover, if you view the Constitution (and most state constitutions) as a document that seeks to protect the political rights of less-powerful factions vis-a-vis more-powerful factions (I again refer to Federalist #10 here), then the California court's action is hardly without justification. This, mind you, is not an issue of reading rights out of "penumbras" and whatnot, but instead flows directly from words such as "equal protection" and "privileges or immunities" (I am one who remains appalled that the Slaughterhouse Cases were never overturned).

Also, we cannot and should not forget the 9th Amendment (as is too often done), which makes very clear that individual rights are not limited to what is stated in the Constitution and its amendments; instead, the powers of government are supposed to be restricted to those powers specifically enumerated in the Constitution. To be sure, I doubt that there is a 9th Amendment-like clause in the California constitution; my point is simply to show the way in which the foundations of American government demonstrate a distrust of governmental power and a desire to protect less-powerful factions against more-powerful factions.

*In the post-New Deal, and especially post-Chevron era, the difference between "execution" of the law and "legislation" is extremely small, perhaps close to non-existent.

**Not an endorsement of the entire body of equal protection doctrine, much of which has become arbitrary thanks to affirmative action jurisprudence. But affirmative action jurisprudence demonstrates the importance of judicial activism- an "activist" judge would be willing to overturn affirmative action laws as unconstitutional under "equal protection" or, if they had the courage to overturn the Slaughterhouse Cases, the "privileges or immunities" clause.

Conservatives Show Their Disdain for the Constitution

***UPDATE***The original version of this post included a quote from Patterico. Patterico left a comment to the effect that his inclusion for criticism in this post did not make sense. Looking at his quote again, I realized that his complaint was justified, and that I should not have singled his post out for criticism within the context of this post (although I obviously disagree strongly with his position nonetheless). I apologize for that, and have removed that portion of this post.

The other day, I wrote a defense of "judicial activism" in which I showed how "activism," in the sense of judges overturning laws, is in fact one of the two primary purposes of the judiciary (along with the obvious job of arbitrating criminal and civil cases). In support of my contention, I quoted extensively from Alexander Hamilton's Federalist #78 (and if you recall your history, Hamilton was far from a libertarian, at least in relation to the other Founding Fathers).

To be sure, it is the job of the judiciary to "interpret" the Constitution (or the state constitution in the case of the gay marriage decision). But the job is substantially larger when it comes to statutory or administrative law rather than Constitutional law - in that case, the job of the courts is to both "interpret" the law AND, if the interpretation runs afoul of the Constitution (or state constitution), to either overturn the law or interpret it so that it does not run afoul of the Constitution. If the courts do not have this power then, as Hamilton pointed out, the legislature, executive, and/or temporary popular majority faction are able to disregard the Constitution (or state constitution) as they please. Indeed, it's worth pointing out that consideration of the constitutionality of a statute or referendum is almost never considered by a legislature or in a public debate.

Constitutions exist to ensure that everyone plays by the same rules- rules that must be respected both by powerful majority and tiny minority factions. When one faction - usually the powerful majority - fails to play by those rules, then it is the duty (not option, not prerogative, but actual duty) of the courts to turn that majority back.

What is so disturbing about conservatives' reactions to the California decision is the way in which it shows they have so utterly abandoned their stated respect for the Constitution in the 1980s for a form of self-serving majoritarianism in which the sole power capable of overturning local legislative action is through the Presidency of the United States (Oregonians know of what I speak). In the 1980s, Justices Scalia, Rehnquist, and others became folk heroes of the conservative movement for their willingness to overturn laws whenever they (correctly, I might add) found those laws violative of the Constitution (typically in the arena of federalism jurisprudence). By almost any definition those decisions, which interpreted laws in such a way as to find a conflict with the Constitution and which significantly departed from about 50 years of SCOTUS jurisprudence, were "activist." And conservatives and libertarians alike celebrated these decisions. During the several years I considered myself a conservative, it was this view of the role of the courts to which I thought I was signing on. But that all changed, most notably with the Terry Schiavo ridiculousness, but really well before that even.

The reactions to the California court's decision demonstrate just how far the conservative view of the judiciary has strayed.

For instance:


Robert Stacy McCain:

"What Justice George overlooks is the question of who makes the laws in a democratic polity. It is not up to judges to arbitrarily re-write the laws that the people have enacted through their freely elected representatives. If the people of California wished their state laws to recognize same-sex unions, they could petition their legislature to enact such laws."

NRO's Editorial Board:

"But in a representative democracy, everyone ought to agree that any changes should result from legislation, not from activist judges who twist and distort constitutional text to their own ends."

But - giving credit where credit is due - there is also Allahpundit, giving an analysis that represents the conservative legal philosophy as I once understood it:

"All they’re doing is denying gays the label of marriage to preserve a sense of stigma, which is almost a paradigm case of what equal protection is meant to prevent. I have no problem with the ruling as long as other states aren’t compelled to recognize Cali marriages per full faith and credit, which, needless to say, is the battleground on which this decision’s going to be fought in the presidential race. Taking the federalist approach and letting each state decide for itself is an easy call for Maverick; what about the Prince of Peace?"

That all said, there is one thing I am finding quite noteworthy about this decision. That is the relative indifference that is meeting it from the conservative blogosphere on the whole. Oh, to be sure, they're still not happy about it. But they seem to have bigger fish to fry, something which suggests that gay marriage opponents are going to have a mighty hard time mobilizing voters to overturn the court's decision in November.

More at memeorandum.

Obligatory Post on CA Marriage Equality: In Defense of Judicial Activism

Actually, obligatory suggests that I don't actually want to write about this, which is false. There is no doubt that the California decision is a landmark, and what I read of the 162 page set of opinions was quite well-reasoned. For the most part, neither dissent resorts to demagoguery (which is pretty typical when you have relatively independent judges doing the decision-writing), with the most vehement dissent taking great care to complement the majority on their sensitive and considered approach to the issue. The second, less vehement, dissent raises some important issues though that I want to address more.

But first - after all the claims of the Religious Right over the last few years that same-sex marriage would destroy marriage as an institution, I'll admit my commute home from work this evening was filled with fear. Would my wife and child still be home, waiting for me? Would my wife still be wearing her wedding ring? Would my wedding ring begin to fade away, as if it were a photograph in the hands of Marty McFly? By the time I was home, I was in a cold sweat. When I walked in the door, my worst fears appeared to be coming true - my wife wasn't wearing her wedding ring! I immediately broke down into tears, begging Chri....err, the Ghost of Jerry Falwell for forgiveness. My confused wife then informed me that she had just taken her ring off to take a quick shower. In other words: California now allows same sex marriage, but my marriage didn't fall apart! Shocking, I know. But also true.

Anyways, on to the issue raised by the dissent in the CA marriage cases. This specific issue was the argument that it is not the role of the courts to overturn as unconstitutional the will of the people. It is essentially an argument against so-called judicial activism.

But judicial activism is good, perhaps even close to an unqualified good, at least as far as it refers to a willingness of the courts to overturn public policy and laws. "But we live in a democracy - what can possibly be more undemocratic than a couple of old fogies in black robes overturning the popularly expressed will of the People?" This complaint is the quintessential argument against so-called "judicial activism"; it also demonstrates a complete lack of understanding of the proper function of the courts.

As many libertarians are quick to point out democracy is a means, not an end in itself - democracy without freedom is meaningless; freedom without democracy is not (think Monaco here, for example). Moreover, we do not live in a pure democracy, but in a constitutional republic; a republic which, according to Madison's Federalist #10 (you knew this was coming), is set up to prevent any one group from gaining dominance over any other group. The constitutional republic that is the United States, and which forms the template for many, even most, state constitutions (including, I think, California's, despite its bad habit of direct democracy), is specifically intended to prevent the tyranny of the majority. In other words, our system of government is supposed to distrust mob rule every bit as much as it distrusts the rule of a king. Indeed, the authors of the Constitution viewed the legislature as the most dangerous branch of government precisely because it was susceptible to the tyranny of the majority.

So, how to defend against this most dangerous branch of government that poses the greatest threat of imposing the tyranny of the majority? The answer, of course, is the judiciary. Indeed, in many ways the very purpose of having an independent judiciary (such as exists in California and on the federal level) is to deter the tyranny of the majority as expressed through the legislature (as well as the tyranny of the Presidency). And the only tool that the courts have at their disposal to accomplish this critical end is to overturn legislation.

In other words: far from being anathema to Constitutional principles, judicial activism is itself a critical Constitutional principle. An independent judiciary does not exist solely to "interpret" the law; it actually exists primarily as a means of defending the minority against the tyranny of the majority. As such, gays seeking to overturn bans on gay marriage through the courts rather than or in addition to the legislature are not seeking to "subvert the will of the people," but are instead following the precise path that the Constitution intends them to take.

Those who complain that judicial activism somehow subverts the Constitution would therefore do well to re-examine their Federalist Papers. Especially Federalist #78 (and it pains me that this is Hamilton essay rather than a Madison essay), in which Hamilton writes:

"[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter....The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority: such for instance as it shall pass no bills to attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights and privileges* would amount to nothing."

And if you still aren't convinced, how about this, also from Federalist #78:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body."

And finally:
"It is not to be inferred . . . that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing constitution, would on that account be justifiable in a violation of those provisions....But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community."


*I note that at the time Hamilton wrote this, the Bill of Rights, including the 9th and 10th Amendments, did not exist as part of the proposed Constitution. However, he argued that the pre-Bill of Rights Constitution actually protected rights better than a Constitution with a Bill of Rights since a Bill of Rights would be construed to create exceptions to powers which the government did not have, thereby implying that the government actually did have those powers. So when Hamilton refers to "particular rights and privileges," he is talking about far more than just enumerated rights and privileges of the People.

A Challenge to My Progressive Friends

Megan McArdle comments on the farm bill passed yesterday, and explains how it will provide almost no benefit to the small farmers that Dems and Progressives purport to care so much about, while continuing to provide massive benefits to huge agri-business (aka "the rich").

As commenter Will Allen, in response to Megan's post, points out:

"The bill that passed yesterday, with overwhelming support of Democrats, and mixed support of Republicans, is so bad it can barely be described. Truly disgusting, and the next time Democrats start yammering about Republicans being in the pocket of the rich (which they often are, of course), this bill should be shoved in their faces."

Given the massive food shortages being caused by subsidies like this, and given the fact that on this issue, for once, President Bush is actually siding against big business, I have two questions for my Progressive friends:

1. Will you join in denouncing these subsidies as being horrific examples of the Dems siding with the "rich" in a manner that actively makes the lives of countless millions of destitute people worldwide worse?
2. If not, can you explain how continuing these subsidies to farmers with adjusted income up to $950,000 is a good idea?

Return of the Realignment Watch: Dem Edition

I've been making a conscious effort to avoid discussing the increasingly cynical Democrat primary, at least to the extent it has become focused on utterly silly issues. However, I have argued that the lengthening of the Dem primary campaign, particularly in light of Obama's increasingly inevitable victory, is bad for both the Dems and the country as a whole. My rationale for this was that the drawn-out campaign, particularly with Hillary Clinton's have-to-see-it-to-believe-it working class hero act, has increasingly forced the candidates into an economic populism from which they will not be able to back down in the general election. This is bad for the ultimate Dem candidate as it makes them less able to move to the center in the general election. But it is equally bad should the Dem candidate still win the general election since it will be almost impossible for that candidate to completely back off from their newfound economic populism.

Tonight, however, it occured to me that the polarization of the Dem campaign may actually be good for the country in the long run, and may create a situation in which libertarians will be better able to influence the Democrats than ever before. Why do I say this? It's the juxtaposition of two things: this interview at The Art of the Possible with Glenn Greenwald, and the staggering number of Clinton voters tonight who said they would either vote for McCain or not vote at all should Obama win the Dem nomination (around 35-40% in both North Carolina and Indiana, it looks like). The bitterness engendered by the Dem nomination battle may result in the departure of a substantial portion of the Dem voter base for the Republican party. As I will explain below, this portion of the Dem voter base also happens to be the least libertarian-friendly, and may allow the Dem Party to liberalize its agenda on issues of importance to libertarians (including trade) without having the union bosses looking over their shoulder so much.

The Greenwald interview, by itself, doesn't break much new ground, though it does help reinforce the notion that cooperation between Progressives and libertarians is, at least in the short term, a good idea. As is usually the case with Greenwald, the interview is well worth a read, even though there are several items about which I could not disagree with him strongly enough. But the passage that clicked for me is this:

I think that many liberals have become much more skeptical of government power and the notion of trusting government leaders as a result of the abuses of the last eight years. Obviously, there are some of them who will quickly lose that skepticism and distrust if there is a Democrat in the White House, but — while recognizing this is just speculation — I honestly believe that’s a minority. I think the radicalism of the last eight years in terms of expansive government power has engendered a real political realignment and made liberals and libertarians far more natural allies than libertarians and those on the Right.

(My emphasis).

In large part, at least, I think Greenwald is right on this point, though I should be more hesitant to allow him to speak for Progressive/liberals as a group, and he clearly underestimates the importance of free market economics to libertarianism as a philosophy. Still, the point that libertarians in recent years have increasingly found common cause with the American Left is nothing new, as the very existence of a site like the Art of the Possible can attest.

Indeed, the biggest hurdle to such an alliance is the American Left's deep discomfort with free market economics (or, put another way, libertarians' deep discomfort with the economics of the American Left).

Should the bitterness of the Dem primary campaign actually result in a large swath of Hillary Clinton voters switching sides to vote for McCain, then we legitimately could see a small but important political realignment take place. This is because the voters and groups most likely to support Sen. Clinton without being willing to back Obama in a general election campaign are the voters with the most anti-free market positions (and, for that matter, the least understanding of economics of any sort- look at the idiotic pandering that is Hillary's gas tax holiday proposal and you'll get the picture).

As these anti-trade economic populists move to the McCain camp, Obama will have less incentive to go through the motions of being an economic populist. This is because his remaining supporters are likely to be more educated about the issues of free trade, and at least willing to accept the notion that free markets can play a valuable role and are often (if not always) better than the alternatives.

To be sure, Obama will need to find a way of building a sufficient coalition to win the election. To do so, he could try to win the populists back over, but he will be trying to convert an extraordinarily skeptical crowd whose opinion of him has been poisoned (fairly or unfairly) beyond repair. Moreover, in doing so, he will lose a huge chunk of his ability to snatch independent voters from the claws of apathy while having no chance of winning over a sizable portion of the lost Hillary voters. The other, perhaps more likely, way for Obama to build a winning coalition will be for him to create a new Dem coalition that maintains his stronghold amongst intellectuals and highly educated liberals while also appealing to the millions of educated disgruntled Republicans who have only slightly more love for McCain than they have for Bush. These disgruntled ex-Republicans are likely to be war opponents, or at least harsh opponents of the Bush-era expansions of executive power, socially liberal, and fiscal dissidents of the Bush spending sprees- a group that roughly includes most libertarians these days.

Without the need to maintain the economic populists, who Obama has already lost, Obama would be much more able to return to the generally pro-free market positions he most likely actually holds (based on his relationship with respected economist Austan Goolsbee). Such a newly formed coalition would not be libertarian, taken as a whole. However, it would be a coalition that would be far more cohesive than, say, the existing Republican coalition wherein so-called "libertarians" are often just war mongering theocrats who like lower taxes.

This isn't to say that the above-described realignment will happen, or even that it is likely. Just that it's a possibility should the deep divisions caused by the Democratic primary campaign not heal relatively quickly.