Suppose an entrepreneur invents something that hasn’t yet existed. He will then have a monopoly on that product, because no one else produces it. For example, Steve Jobs invented the iPhone, which had not previously existed. Is his invention anti-competitive and therefore in violation of the antitrust laws? Should he be forced to give it away to anyone else who wants to produce it? If not, then what justifies the antitrust prohibition on monopoly power?
Recently, Amazon's acquisition of Whole Foods has come under fire as vulnerable to antitrust legislation. The leftist website Slate is now demanding that we "Crack Down on Amazon." But what law did Amazon violate that permits the government to step in and interfere with the company's business practice? What Jeff Bezos did by acquiring Whole Foods and increasing Amazon's market power was entirely legal.
Therefore, isn’t antitrust essentially ex post facto law, and doesn’t it, therefore, violate the Constitution? Indeed it does. Article 1, Clause 3, Section 9 of the U.,S. Constitution expressly prohibits ex post facto laws, to wit: “No bill of attainder or ex post facto law shall be passed.” Antitrust law is retroactive, and penalizes companies for actions that at the time they were taken were entirely legal.
Moreover, if a business outcompetes its rivals, how can we say that its action is "anti-competitive”? Isn’t the purpose of competition to win — to beat one’s rivals? Yet antitrust law penalizes companies for doing precisely that — for being successful at what is the very purpose of competition. Suppose that, instead of being rewarded, tennis pro Rafael Nadal were penalized for winning the French Open ten times, on the grounds that his continued success was anti-competitive. Of course, that would be absurd. But how is it any less absurd to penalize a company like Amazon for besting its competitors on the grounds that its action is anti-competitive?!
As Ayn Rand would say in assessing a moral or legal theory: Check your premises!
(Edited by William Dwyer on 11/14, 11:42am)