Cross posted at our new beta site Voices on the Square and The Stars Hollow Gazette
I don't know what to do. This is pretty daunting and I think half of the Democratic electorate still thinks that most of the dissenting 4 Liberal SCOTUS Justices voted against Citizen's United because they reject corporate person-hood. They didn't yet somehow we're all pretending they did using it as a rallying cry in this election. I have to wonder why.
After all, Corporate person-hood is the basis as to why our so called Representative Democracy is bought and a sham, really. It started with how the 14th amendment to free African American slaves passed after the Civil War was used for this pernicious purpose as documented in The Corporation.
Our fake Representative democracy has been bought for quite some time even before Citizen's United made things worse. In Glenn Greenwald's piece about the Chick Fil-A controversy he gave us an important reminder too often overlooked in this campaign and overall talk of swinging the Roberts Court back.
Free speech and donations
Leave aside the fact that all 9 justices of the Supreme Court — from the most liberal to the most conservative — believe, and in Citizens United said, that corporations have free speech rights under the First Amendment, and that restrictions on how they spend their money for political advocacy can violate the First Amendment’s free speech clause.
It's worth noting to whoever chagrin's or surprise that I disagree with Glenn Greenwald(it's not often that I do) completely in his sympathetic view of 1st amendment rights for corporations. I will expand on why later, but I have to point out right now that he's not talking directly to me here even though I take the position he doesn't agree with. Why?
As I have documented, Democrats are largely responsible for creating the Roberts Court in the first place so you won't see me out there pretending Democrats are going to do what's right by the Supreme Court as a campaign issue. It's not a given that any of the swing retirements are going to happen, and our country can't wait much longer nor can the planet.
I agree with Greenwald's point that it's disingenuous to think the Liberal Justices are going to overturn corporate person-hood, specifically anti-Miranda and pro cutting Medicaid Kagan. So Glenn makes a good point despite my disagreement; indeed, let's stop pretending that is the case that the "liberal" 4 oppose corporate personhood.
Follow-up on the Citizens United case
More important, I want to note one extremely bizarre aspect to the discussion yesterday. Most commenters (though not all) grounded their opposition to the Supreme Court’s ruling in two rather absolute principles: (1) corporations are not ”persons” and thus have no First Amendment/free speech rights and/or (2) money is not speech, and therefore restrictions on how money is spent cannot violate the First Amendment’s free speech clause. What makes those arguments so bizarre is that none of the 9 Justices — including the 4 dissenting Justices — argued either of those propositions or believe them. To the contrary, all 9 Justices — including the 4 in dissent — agreed that corporations do have First Amendment rights and that restricting how money can be spent in pursuit of political advocacy does trigger First Amendment protections. Here’s what Justice Stevens himself said in his dissent (p. 54-55):
Let’s repeat that. As Justice Stevens says: “of course . . . speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation,” and ”no one suggests the contrary.” The fact that all nine Justices reject a certain proposition does not, of course, prove that it’s wrong. But those who argue that (1) corporations have no First Amendment rights and/or (2) restrictions on money cannot violate the free speech clause should stop pretending that the 4 dissenting Justices agreed with you. They didn’t. None of the 9 Justices made those arguments.
Sadly Greenwald is right about that, but let's get to why he is wrong on the issue. Citizen's United is not the case we need to concern ourselves with, because if a more pernicious case is examined and by some miracle overturned as we look back, Citizen's United has no basis anyway.
Santa Clara County v. Southern Pacific Railroad
Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886) was a matter brought before the United States Supreme Court - but not decided by the court - which dealt with taxation of railroad properties. A report issued by the Court Reporter claimed to state the sense of the Court - without a decision or written opinions published by or of the Court. This was the first time that the Supreme Court was reported to hold that the Fourteenth Amendment equal protection clause granted constitutional protections to corporations as well as to natural persons
You read that right. Here's Lawyer and CNN's legal analyst Jeffrey Toobin to expand on that point when he was on the Colbert Report during the Citizen's United preceding.
Yes, a court reporter off hand mentioned corporate person-hood and equal protection under the 14th amendment for corporations(which doesn't really still exist for African Americans in part because it exists for private prisons) and it became written as legal precedent ever since even though it didn't exist! The court reporter doesn't have that authority! That's not what I call Jurisprudence.
That is what I call a joke; something a Kangaroo Court would let happen. That's not something the highest court in the United States should have done and recorded as precedent perverting our entire system altogether. This omission from Greenwald and Turley among other legal minds I normally agree with is extremely disappointing on this issue. This decision needs to be overturned like Plessy vs Ferguson was.
Perhaps what's most disturbing is how our Judicial system as a whole only selectively puts historical context into effect whenever upholding the 1st amendment. Greenwald and others argue that the 1st amendment only talks about the freedom of speech and not which entity it belongs to. Well technically it doesn't explicitly talk about a wall between church and state either. However it's been upheld and rightfully so, because of the context from Thomas Jefferson's and James Madison's letters and writings about the matter.
So why not look at more drastically important historical context when it comes to the 1st amendment only belonging to real people who can live, cry, and die as Elizabeth Warren articulates? Thomas Hartman has done some of the best research on this issue so I'm going to end with this long piece he wrote on the same kind of context behind the 1st amendment's real intent even if it's not specifically spelled out in text form in the Bill of Rights.
To Restore Democracy: First Abolish Corporate Personhood
Thus, Paine and others of the Revolutionary Era reasoned, any institution made up by and of humans - from governments to churches to corporations - must be subordinate to individual living people in terms of the rights and powers held by the institution.
Because of the unique frailties and depths of passion unique to humans, just after the United States Constitution was ratified Thomas Jefferson and James Madison began a campaign to amend it with a 12-point explicit statement that would clearly and unambiguously place humans - who had created government - above their creation. This was the birth of what would become the Bill of Rights, and it originally had twelve - not ten - protections for citizens’ rights.
On December 20th, 1787, Jefferson wrote to James Madison about his concerns regarding the Constitution. He said, bluntly, that it was deficient in several areas. “I will now tell you what I do not like,” he wrote. “First, the omission of a bill of rights, providing clearly, and without the aid of sophism, for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land, and not by the laws of nations.”
Such a bill protecting natural persons from out-of-control governments or commercial monopolies shouldn’t just be limited to America, Jefferson believed. “Let me add,” he summarized, “that a bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inference.”
By mid-summer of 1788, things were moving along and Jefferson was helping his close friend James Madison to write the Bill of Rights. On the last day of July, he wrote to Madison: “I sincerely rejoice at the acceptance of our new constitution by nine States. It is a good canvass, on which some strokes only want retouching. What these are, I think are sufficiently manifested by the general voice from north to south, which calls for a bill of rights. It seems pretty generally understood, that this should go to juries, habeas corpus, standing armies, printing, religion, and monopolies.”
But on the issues of banning a standing army and blocking corporations from gaining monopolistic control over industries, Jefferson was getting resistance. The nation had just fought a bloody war against England, and there was little sentiment for completely dismantling the army. And the Federalists who were in power - a party largely made up of what Jefferson called “the rich and the well born” - were opposed to government constraints on business activities.
Thus only ten of his twelve visions for a Bill of Rights - all except “freedom from monopolies in commerce” and his concern about a permanent army - were incorporated into the actual Bill of Rights.
During this same period, because everybody understood Paine and Jefferson’s argument that human-made institutions must be subordinate to humans themselves; virtually every state had laws on the books that regulated the behavior of corporations.
The corporate form is, after all, just a legal structure to facilitate the conversion of products or services into cash for stockholders. As Buckminster Fuller wrote in his brilliant essay The Grunch of Giants, “Corporations are neither physical nor metaphysical phenomena. They are socioeconomic ploys-legally enacted game-playing-agreed upon only between overwhelmingly powerful socioeconomic individuals and by them imposed upon human society and its all unwitting members.”
Thus, states made it illegal for corporations to participate in the political process: politicians were doing the voters’ business, and corporations couldn’t vote, so it didn’t make sense they should be allowed to try to influence votes. States made it illegal for corporations to lie about their products, and required that their books and processes always be open and available to government regulators. States and the Federal government claimed the right to inspect companies and investigate them when they caused pollution, harmed workers, or created hazards for human communities, even if in the early years that right was unevenly used.
There it is. All states had laws on the books regulating corporations from this so called money "speech" some people think they were entitled to by the 1st amendment. Wrong. Corporations are chartered by states and by the state ever since the East India Company was chartered by Queen Elizabeth I.
As far as Greenwald's hypothetical questions go, they don't scare me. As much as I respect the work of the ACLU, they couldn't spend enough money as "speech" to stop the NDAA or shut down Guantanamo or Bagram air base. Unions(not the same as for profit corporations and they are more democratic) can't compete and never will be able to compete in the money game by Wall St barons and the Chamber of Commerce.
Only legal protection can protect the dwindling labor movement; the ability to spend more money as speech has done and will do nothing for the dwindling hanging by a thread union movement in this country. Laws need to protect them and laws killing them need to be overturned. Joining a union needs to be a civil right. The NLRB can't really protect workers. Taft Hartley and right to work laws need to be overturned. We need rights, not fear mongering over speech equaling money, because most of us barely have any money and don't have a future because the billionare's purchase of this nation is now codified.
I'm not saying the SCOTUS is a non issue in general, but like our economic problems, unless you're willing to identify the problem and have the right debate, you're not helping the real issue at all. There was a time when the New Deal was constantly struck down by the SCOTUS, until FDR, despite losing, threatened to pack the court. Though that threat failed it did eventually change the trajectory of the court as the Four Horsemen lost their grip on it when Justice Owen Roberts's switch in time that saved nine happened, and much of the New Deal was then able to become law putting an end to the Lochner era.
So you want to use the SCOTUS as a campaign issue? Advocate for finding real Liberal SCOTUS Justices who actually know the Santa Clara County vs. Southern Pacific Railroad was a sham that is costing lives, livelihoods, and our whole Republic. Advocate for politicians that are aware of this law and the history behind it in the Executive and Legislative branch, even if they don't exist yet. Don't believe anyone is going to even begin to solve this problem unless they're really talk about it.
Identify this problem and think critically while alerting the masses. What's left of our republic depends on it, specifically the real non corporate persons living and suffering in it.