THE ENDURING TENSION — SEEKING LIBERTY WITHOUT JUSTICE:
Citizens United and the U. S. Supreme Court’s Plutocratic Ideology
Lon Clay Hill, Jr.
Citizen
SUPPLEMENT A - HISTORICAL PRELIMINARIES
Post of January 21, 2011; A preliminary to a full Citizen's critique of Citizens United.
ON THE DOCKET: Citizens United v. Federal Election Commission, US Sup Ct #08-205. A case decided on January 21, 2010. The Court held that “Corporations” were privy to certain Constitutional protections and “free speech rights” which had hitherto been restricted to living human beings. (Referred to here as “Citizens United.”)
SOME HIGHLITES OF AMERICAN HISTORY OF THE UNITED STATES:
The Declaration of Independence, the Privileges and Temptations of Liberty, and the Gettysburg Address.
The history of the United States has been one of continuing tensions between those who benefit and profit from the political and economic status quo and those who believe themselves to be improperly and unjustly treated by the contemporary societal, economic, or political institutions of the day. Perhaps it would be more accurate to say that our tensions reflect our vary beliefs about the legitimacy of contemporary institutions — recognizing that such beliefs invariably overlap, however imperfectly, with the actual interests embodied in those institutions. Perhaps, it is not presumptuous to assert that most Americans believe that the history of the United States has been a History of Expanding Liberty. Americans like to point out that Jacksonian democracy brought suffrage to the common man, the Civil War brought citizenship to slaves, the Women’s Suffrage movement brought citizenship to women, the New Deal brought more tolerable working conditions to ordinary workers, and that the Civil Rights Movement brought more substantial equality to the descendants of slaves. Furthermore, many persons — including this author — tend to believe that our nation’s history has been marked by incomplete and imperfect, but significant progress towards the putting into practice the principe that “All men are created equal.” Slowly, but surely we have accepted the principle that the term “All men” includes poor men as well as rich men, black, brown, and yellow men as well as white men and with the 19th Amendment we now say and believe that in some significant and politically potent manner all men-and-women (not just ‘man”) are created equal. Without getting too specific about what “true political equality” really means, most Americans believe that the Declaration of Independence represents the fundamental step in establishing both the reality and the purpose of these United States. In addition, many of us — again including the author — believe that the Declaration of Independence expresses the morally indispensable principles which are the foundation of legal and political legitimacy.
However, what is frequently partially or even completely ignored in American political discourse has been a continuing tendency to frame our most political controversies in exclusively in terms of individual liberties and rights - so that genuine content is distorted and subverted by partisan interests, desire, and ideology. As a general rule, it is much easier to talk about one’s rights than to attend to the demands of justice. The most obvious example of this partisan and hypocritical distortion of language was seen in much of the Southern defense of slavery before the Civil War. Besides being seen as an example of Christianizing pagan Africans, in the South slavery was often seen legally as simply a form of property and the recovery of runaway slaves as a simple admission of state’s rights. In point of fact, the tensions between freedom and slavery were so great that they occasioned a great Civil War. Our Civil War brought about a need to articulate some of those Principles of Justices needed to preserve our Liberties — principles embodied in the Constitutional Amendments of the post-Civil War era (Amendments #13, #14, #15) and in Lincoln’s Gettysburg Address. Indeed, in spite of the Civil War and the post-Civil War Amendments, the white South was able to impose legal segregation in the former Confederacy for about a Century after the Civil War.
The relationships between political power, moral legitimacy, and Constitutional Provision is complex and certainly not one of one-to-one correspondence. Nevertheless, since the Ratification debates that preceded the adoption of the Constitution in 1788, political debate in these United States has frequently been colored by Constitutional language. In the case of the Jacksonian movement, a national Constitutional Amendment was not required for poor white men to receive the right to vote. But for women and slaves to receive such rights changes in the Constitution were required. To better insure that poor black men could vote, Amendment #24, outlawing the Poll Tax, was added in 1964. One might also argue that Amendment #17, requiring the direct election of senators, was a natural outgrowth of the Jefferson-Jacksonian movements.
While Constitutional Text, including Amendments, provide a means to embody and further the nation’s sense of justice, there are clearly some important complicating factors. One important complicating factor is that the Founders viewed stability as an important component of a Constitution written “for the ages.” Our Constitution can be amended, but it is quite difficult to amend. This has had both fortunate and unfortunate consequences. The original U.S. Constitution was written by educated, foresightful, politically ambitious, and — for the most part — wealthy individuals. While the Framers differed among themselves (thus the Constitution as written had some broad provisions of indefinite, but arguable range), these wealthy individuals, both consciously and unconsciously, looked after their own interests and the interests of their class. A Written Constitution is a marvelous thing as it can articulate important principles which the people can refer to in their struggles for justice and their own “rightful place in the sun.” Simultaneously, however, a Written Constitution is also a dangerous thing as it has been and continues to be used to provide apparent moral justification for camouflaged institutional inequalities and inequities. Thus the Constitution as originally written could be referred to in defense of slavery; even after slavery was abolished, legal segregation was successfully defended by Constitutional arguments for nearly a Century; and today (2011) a second class national health system is vigorously — even vehemently — defended with law suits and Constitutional arguments by partisans, corporations, and politicians with a vested interests in the status quo.
This leads us to a most important principle needed in the evaluation of Constitutional politics in these United States. Constitutional Text and Supreme Court decisions provide opportunities to create ideologically tainted language and precedential authority which may present irresistible temptations for those judges and lawyers already predisposed to support the status quo and its power base. And while, in my own mind, it is by no means always the most important matter for individual attention or societal reform, it is apparent to me that the protection of corporate greed has been a clearly identifiable and persistent component of American Constitutional jurisprudence. In particular, this tendency has been present in some of the most notorious Supreme Court decisions. The epitome of this tendency was the Dred Scott decision (Scott v. Sanford, 1857). The Court, in attempting to resolve the controversies occasioned by slavery, tried to protect slavery — and helped to initiate the Civil War. Treating a person as property is about as clear example of greed as we can find. Two other unusually reprehensible decisions were those of Lochner (1907) and Adkins (1923) in which the Court, purporting a defense of “Contract Rights” overthrew minimum hour and wage laws. Lochner was doubly notorious because it was one of several U.S. Supreme Court decisions which “applied” the 14th Amendment to corporations several decades before the Supreme Court in Brown v. Board of Education (1954) definitively applied the 14th Amendment to the descendants of slaves — the ‘original intent’ of the 14th Amendment. And, as we will see below, Citizens United, belongs to this tradition which confuses economic privileges with human rights. {Citizens United depends at its core on an extension of a defensible fiction (a legal “corporation’) into the morally indefensible proposition that all corporations have “legal rights” tantamount in significant respect to the rights of living human beings. Camouflaged in the Court’s argument are the ruling’s consequences. Those human beings who possess corporate stock [with state granted financial advantages] can now extend their political influence [with their new “rights”] to have even more political power, to be “more [politically] equal” than their fellow human citizens.}
OTHER CASES CITED HERE:
Adkins v. Children’s Hospital, 261 U.S. 525 (1923)
Brown v. Board of Education, 347 U.S. 483 (1954)
Lochner v. New York, 198 U.S. 45 (1905)
Scott v. Sanford, 19 Howard 393 (1857)
