Tuesday, October 20, 2009

Old Glory Is So Yesterday

The U.S. Supreme Court will soon decide a case - Citizens United v. Federal Election Commission - that started as a narrow dispute over whether federal election laws should have applied to a pay-per-view cable TV documentary savaging Hillary Clinton that was to air during the 2008 presidential primary elections.

As previously noted, Chief Justice John Roberts expanded the court's review to include two earlier Supreme Court rulings upholding restrictions on corporate spending in elections. Many court observers believe five of the nine justices favor reversing those precedents.

So at a time of corporate excess and irresponsibility not seen in our land since the Gilded Age, the court appears poised to rule that corporations do not have enough political clout and should be allowed to spend even more freely in elections. And rule thusly in the name of the First Amendment.

Never mind the word "corporation" does not appear in the First Amendment. Nor does the word appear even once in the entire U.S. Constitution for that matter. These justices who call themselves "strict constructionists" and claim to be faithful to the original text of the Constitution are getting ready to sweep away century-old laws banning corporate election spending.

Roberts and his ideological soulmates will not be able to base such a decision on what the Constitution actually says. Nor will they be able to find any predecessor on the nation's highest court who wrote a decision proclaiming that corporations are people and possess the same rights as flesh-and-blood citizens, including those rights spelled out under the First Amendment. Instead, the Roberts court will have to take this guy's word for it.

Bancroft Davis. Former president of a railroad company. As the court reporter for the U.S. Supreme Court, he gave railroad companies a great gift in 1886 when he added a comment to the high court's ruling in a case involving the taxation of railroad properties. And in so doing, this one man gave all corporations a great gift by inventing the pseudolegal doctrine of corporate personhood. Out of thin air.
If the current Supreme Court rules in Citizens United the way many legal experts expect, the handiwork of Bancroft Davis will be affirmed and further cemented in place.
If the Roberts court does this, it will not just be naked judicial activism. It will not simply be the very thing they claim to abhor - legislating from the bench. These "strict constructionists" will be effectively rewriting the Constitution.
What next? Redesign the flag? To capture the essence of the Roberts court's mindset, it will need to look this one.


Anonymous said...

you forgot to include the MSN symbol!!

Anonymous said...

The Congress should be preparing a Constitutional Amendment to put corporations in their place, and while they're at it, how about "term limits" for the Supreme Court and Congress?

apexcutter said...

It does not matter that the word "corporation" fails to appear in the 1st Amendment, as the amendment does not attempt to specify WHO gets the freedom to speak. The amendment, rather, speaks to a prohibition on Congress' interference with free speech -- regardless of who is speaking. McCabe seems to have a contorted notion of the Bill of Rights -- these amendments specify limits and prohibitions on the federal government, not a narrow or limited list of what is permitted by citizens, states, local governments or institutions.

Anonymous said...

Apexcutter, I'm afraid it's not Mike McCabe who has the twisted notion of the Constitution and the Bill of Rights. The first three words of the Constitution are "We the People," not "We the People and the Corporations." The Bill of Rights further enumerates the rights of citizens under the Constitution. Those first 10 amendments were ratified in 1791. As McCabe rightly points out, it wasn't until 1886 that corporations were effectively granted legal status as citizens by a single man, who was neither an elected representative of the people nor a justice of the supreme court.

Anonymous said...

Yes, apexcutter, the Constitution absolutely does spell out who enjoys the rights that are outlined. As the previous comment notes, no time was lost in making it clear. The first 3 words say it all.

apexcutter said...

"Congress shall make no law ... abridging the freedom of speech,"

Pretty simple.

It doesn't say: Congress shall make no law ... abridging the freedom of speech, excepting that Congress shall make laws governing the speech of certain institutions".

Nope, doesn't say that at all. If you want it to say that, start your petitions for amending the Constitution. Short of amending it, it means what it says.

Anonymous said...

Boy, are you thick or what, AC? It's as if you see the 1st Amendment standing alone in isolation rather than what it is - an addendum to the Constitution.

The Constitution mentions the rights of the people repeatedly but does not cite corporations. That was no accident. While they chose to make no mention of corporations in the Constitution, many of the founders wrote copiously on the topic elsewhere and expressed deep wariness about corporate power and made clear their concern about the dangers of corporate political influence.

In 1819 John Marshall, who is considered the nation's greatest chief justice, wrote that a corporation is "an artificial being, invisible, intangible." He went on to say "Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence."

How very far his successors have strayed from that view. Indeed, Marshall's conception, not to mention the spirit and letter of what the founders crafted, was thrown on the scrap heap in 1886, as Mr. McCabe very accurately points out.

All of this does not mean that corporations have no rights. The law gives corporations special legal status: limited liability, special rules for the accumulation of assets and the ability to live forever. These rules put corporations in a privileged position in producing profits and aggregating wealth. If given the full array of rights that people have under the Constitution, their influence would be overwhelming.

One of the main areas where corporations’ rights have long been limited is politics.

The founders of this nation knew what they were doing when they drew a line between legally created economic entities and living, breathing human beings. The current court should stick to that line.

It is both ironic and outrageously hypocritical that the bloc on today's court that seems bent on erasing that line is one that proclaims fidelity to the original text and intent of the Constitution. Mr. McCabe hits the nail right on the head when he points that out, too.

Anonymous said...

I've got one of those flags, but my condo association won't let me fly it. So much for free speech.
Thanks for the column.