Skip to main content

  It is has been pointed out by others that when the Republicans chose to organize the reading of the Constitution on the House floor, they conveniently left out parts they didn't like. But, they have intellectual--and I use "intellectual" loosely--support for this from Justice Scalia and his wing of convenient Constitutionalists who choose to find things in the document they so revere like rights of Corporations.

  The point I am making is not a new one. But, it rises today thanks to a fabulous blog post by Linda Greenhouse whose regular legal commentary and coverage for The New York Times of the Supreme Court was a pearl and is missed now that she has moved on. But, she is a blogger there and she writes today on "Problems of Democracy". Let me build up to the critical part, from my vantage point, with her first example of the convenient way in which Scalia views the Constitution:

My own beef is not that the members of Congress chose not to acknowledge inconvenient parts of the document as written, but that their show of reverence for the written text obscured much of what really matters in our constitutional culture...

There is nothing inherently liberal, progressive or even ideological one way or another about acknowledging that the Constitution we have today is the multilayered product of original understanding mediated over time by perceived need. Nor is Justice Scalia himself, his protestations aside, immune from this reality. One of his opinions from the Supreme Court’s last term is my favorite recent example of how even this most original of all originalists sometimes bends toward the practical in his constitutional interpretation.[emphasis added]

  Greenhouse then proceeds to describe a case, Maryland v. Shatzer, which involved the interrogation and then the re-interrogation of a prisoner. Scalia and the majority decided that 14 days was enough of a time period between a prisoner's invocation of his right not to answer questions and the next time the police could come at him again"

Fourteen days? Where did that come from as a constitutional principle? Fourteen days, Justice Scalia explained, provide "plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody." That sounds an awful lot like constitutional policy, not constitutional interpretation.

  The point Greenhouse makes is simple: strict interpretation is conveniently in the eye of the beholder and, in particular, in the eye of Scalia.

   And the main point that is really important:

Last month, before the new Congress opened for business, Representative Darrell Issa, a California Republican and the soon-to-be chairman of the House Oversight and Government Reform Committee, wrote to 150 companies and trade associations asking them to let him know about any federal regulations that they would like to see removed. Perhaps Mr. Issa was emboldened to send such a letter by the business-friendly vibrations emanating from the Supreme Court these days. It was just last January, in the Citizens United case, that the court granted corporations a robust First Amendment right, as citizens, to spend money in support of or against candidates in federal elections.

House Republicans could read the Constitution every day between now and July 4 without finding a word about corporate citizenship. Funny, but it just doesn’t seem to be there. Call it a problem of democracy[emphasis added].

  I can say what maybe Greenhouse thought. The Supreme Court conservative majority has become the legal bagman for the corporate world. In the midst of the great class warfare in 100 years and the greatest divide between rich and poor, corporations have no fear from having their wings clipped by the judiciary--because, ultimately, when any key case comes to the final arbiter, Scalia and his gang will deliver the payoff. The health care bill will likely be the next payoff.

  So, let's step back and take a measure of where we are, in real-life, when it comes to the economic crisis we face in America. If we think of the three branches of government and the vaunted separation of powers outlined in the Constitution:

The Supreme Court majority has sold itself to the corporate world, which is principally responsible for the implosion of the American Dream. With the important caveat that I am not a lawyer and have a layperson's interest in the law, it strikes me that the Court has divined new rights to corporations that actually are not only not to be found in the Constitution but are precisely counter to the idea of guarding against any King or concentrated power ruling America.

The Congress--our legislative branch--is largely on the take as well because of the unholy alliance between the career of a Member of Congress and campaign contributions, a process that only gets worse because of Citizen's United.

The Executive Branch, while professing to speak for the "middle-class" (whatever happened to the poor, by the way) is much more focused on appeasing the business world, hiring one of the most visible, enduring, NAFTA-promoting, financial-sector operatives.

  Who, then, will speak for the people?

Originally posted to Tasini on Thu Jan 13, 2011 at 10:11 AM PST.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Who? The Branch Elected Without Needing Corporate (5+ / 0-)
    Recommended by:
    chuckvw, Tasini, Kitsap River, corvo, millwood


    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu Jan 13, 2011 at 10:15:55 AM PST

  •  Some state AGs are doing better. (4+ / 0-)
    Recommended by:
    chuckvw, Kitsap River, corvo, millwood

    It's difficult to be happy knowing so many suffer. We must unite.

    by War on Error on Thu Jan 13, 2011 at 10:24:10 AM PST

  •  Corporate personhood (5+ / 0-)

    An amendment intended to protect the rights of newly-freed slaves became a vehicle to protect the rights of corporations.  Talk about judicial activism.

    End hate radio. Bring back the fairness doctrine.

    by Paleo on Thu Jan 13, 2011 at 10:24:21 AM PST

  •  Scalia's interpretive theory is a sham. (10+ / 0-)

    Scalia claims that we have to look at the text of the Constitution itself, and he often criticizes concepts like the right to privacy because they are not explicitly mentioned in the Constitution.  Yet when it suits his political objectives, he's perfectly fine with reading stuff into the Constitution that simply isn't there.

    If you need any proof of this, just check out where he stands on things like the interpretation of the Eleventh Amendment or on constitutional limitations on punitive damages awards.  In both of these areas, his apparent theory of constitutional interpretation is of the "let's just make shit up" variety.  

    Or look at how he voted in Bush v. Gore.  A guy who's consistently opposed an expansive reading of the equal protection clause and who's always attacked federal interference in matters of state control, suddenly finds a new application for the equal protection clause and has no problem telling a state supreme court what to do about the state's own electoral process.

    In short, Scalia and his clone, Thomas, are largely political animals.  Their jurisprudential principles almost always yield to the result they want to reach in a given case.  

    Maladie d'Amour, Où l'on meurt d'Aimer, Seul et sans Amour, Sid'abandonné

    by FogCityJohn on Thu Jan 13, 2011 at 10:25:32 AM PST

  •  Need an effort to strip personhood status (10+ / 0-)

    from corporations.  Even if there is no chance in the forseeable future.  A constitutional amendment, legal essays and books, etc.  Start to lay the groundwork for such a movement.

    End hate radio. Bring back the fairness doctrine.

    by Paleo on Thu Jan 13, 2011 at 10:27:57 AM PST

    •  yup n/t (5+ / 0-)

      Follow me on Twitter @jonathantasini

      Visit Working Life.

      by Tasini on Thu Jan 13, 2011 at 10:31:43 AM PST

      [ Parent ]

    •  When I see a whole corporation go to (2+ / 0-)
      Recommended by:
      Kitsap River, joe shikspack

      prison, I'll believe it is a "person." Likewise when I see a corporation enter a voting booth and select a member of Congress. The whole fiction of corporate personhood is just that, a legal fiction with no basis in reality.  And definitely no basis in the  constitution.

      •  corporations are artificial bodies, (0+ / 0-)

        regardless of whether they are public or private.  Public corporations are responsible for authorizing the establishment of private ones.  If they have failed to set proper standards as to function, tenure and social obligations, that's probably because the officers of the public corporations prefer it to be that way.  By not setting uniform criteria, lawmakers retain a handle by which to manipulate private corporations and extort support (both monetary and electoral) from them.

        While some congresscritters are doubtless corporate candidates, it's my guess that the extortion actually runs from Washington to the corporate enclaves.  It may well be that so much congressional legislation ends up in the trash bin is because it was simply an extortion mechanism in the first place.

        If you think that's far-fetched, what's all the recent targeting of the electorate for monetary contributions but a form of extortion?  Send me money or the Repugs/Dems will get you!

        The conservative mind relies mainly on what is plain to see.

        by hannah on Thu Jan 13, 2011 at 12:09:06 PM PST

        [ Parent ]

  •  I agree with your diary, but not the Executive (0+ / 0-)

    branch sentence.

    This is an issue that has fundamentally changed our democracy while simultaneously being ignored.


  •  Justice Scalia is either (0+ / 0-)

    Intellectually dishonest or not very bright.

    I do not believe it is the latter.

    Justice Scalia does what all ideologues do, he gets rid of the difficult bit in the title.

    In this case, he claims to be a strict constitutionalist, then gets on with legislating from the bench.

    I have a Constitutional amendment to propose:

    "That we substitute, in the text of the Constitution of the United States of America, the words "Natural born person or people, for every instance of "person" or "people" currently therein".

    We do not forgive our candidates their humanity, therefore we compel them to appear inhuman

    by twigg on Thu Jan 13, 2011 at 11:09:17 AM PST

  •  The Constitution does not "grant" (1+ / 0-)
    Recommended by:

    rights, personal or corporate; nor is it designed to protect them.  The Constitution outlines the responsibilities and obligations of the agents of government and assigns "limited" powers (they may do so much and no more) with the intent of insuring that, if the provisions of the Constitution are followed, the people who govern will not be compromised.

    In that context, the first ten amendments are anomalous in that, instead of focusing on the agents' powers and duties, they enumerate some specific activities they may not engage in, unless there's good reason -- i.e. they are warranted.  That exception is the source of much difficulty because the agents of government are good at arguing that their behavior is "reasonable" and, therefore, warranted.  Besides, the prohibitions are barely supported by sanctions.  That information gained through unauthorized methods cannot be used as evidence at trial is hardly punitive and certainly doesn't inhibit violations.

    More worrisome is the evolution of the provision that individuals cannot be coerced to provide testimony against themselves -- a provision that does not preclude trickery.  And, while it was supposed to be buttressed by the finding that arrested persons (but not detainees) are entitled to legal counsel and need not speak, if they don't want to, this guarantee has somehow morphed into the position that "voluntary" submission can justify all kinds of abuse.  Not to mention that "consent" can be interpreted as a one-time event that holds true ever after, much as marital vows used to be for life, regardless of how much injury was inflicted by a spouse.

    The Catholic attitude towards authority and hierarchy is significant, I think.  Government by the people is not a principle that Thomas, Scalia or Kennedy believe in.  Kennedy, more and more, strikes me as enamored of the rule of law because it leaves no finger-prints.  When the rule of law is invoked, authoritarians don't have to wash their hands like Pontius Pilate.  The rule of law is a bloodless, implacable tyrant.  When you top it off with the importance of "correct procedure" over all, the individual person doesn't have a chance.

    The rights of private corporations are another matter.  That the legislatures have chosen not to regulate them properly is a scandal.  But, IMHO, it's not something the SCOTUS can address.

    The conservative mind relies mainly on what is plain to see.

    by hannah on Thu Jan 13, 2011 at 12:00:13 PM PST

  •  new name for supreme court: (0+ / 0-)

    "citizens united for corporate dominance"

    you might be interested in this article about a study that shows that the robbers roberts court has sided with the chamber of commerce about 2/3 of the time.

    professional sanctimonious purist

    by joe shikspack on Thu Jan 13, 2011 at 12:12:43 PM PST

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site