By John Aloysius Farrell, Thomas Jefferson Street blog
In June, 1891 Supreme Court Justice David Brewer was called to New Haven to address the graduates of Yale University. Brewer knew the key to success at such occasions, and told the sons of the Gilded Age just what they wanted to hear. "From the time in earliest records when Eve took loving possession of even the forbidden apple, the idea of property and sacredness of the right of its possession has never departed from the race," Brewer said.
"Human experience," he said, "declares that the love of acquirement, mingled with the joy of possession, is the real stimulus to human activity."
Given the recent Supreme Court decision on corporate campaign spending, with its twisted view of corporations as the building blocks of liberty, Brewer might feel right at home on the current court.
So, kudos to Barack Obama, that former constitutional law professor, for saying it right to the justices' faces last night.
"With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.
"I don't think American elections should be bankrolled by America's most powerful interests or, worse, by foreign entities," said the president. "They should be decided by the American people."
Brewer was a member of a Supreme Court known for its slavish devotion to the economic interests of the Robber Barons, and for its philosophical commitment to the uglier tenets of social Darwinism. It was a court led by the mediocrities, Chief Justices Morrison Waite, Melvin Fuller and Edward White--names justly forgotten, as Americans have chosen to honor, instead, the great dissenter of the times, Oliver Wendell Holmes.
In the years after the Civil War, greed was "the awful compulsion of the age," said the novelist Brand Whitlock. Before the war, the hired hand sat at the family table, and could court and marry his employer's daughter. But the great inventions of the industrial age allowed a very few men to acquire outrageous fortunes, and reduced the hired hands to the status of serfs or, as they called themselves, wage slaves. Americans had always held Europe's great class consciousness in contempt; now it had its own plutocracy.
And the plutocracy had the Court. The representative case of this particular band of jurists was the shameful 1896 decision, Plessy v. Ferguson, which stripped black Americans of the protection of the 14th Amendment and sanctified segregation.
Such was not the case for corporations, of course; in 1886, the court declared that the rapacious Southern Pacific Railroad, and other corporations, were "people" deserving of the protection of the 14th amendment, which called for equality under the law.
There were other abysmal decisions. This was the court that--putting its declared faith in judicial restraint aside--interceded to invalidate a New York law which limited to 10 hours the daily shift that workers could be required to work by companies. The statute interfered with "the right of contract," the court said. An employee who didn't want to work 60 hours a week could simply find another job.
This was the court that outlawed the income tax, a folly which an outraged citizenry had to cure with the passage of a Constitutional amendment. It was a court that endorsed the perverse use of the Sherman Anti-Trust Act (which had been passed to limit corporate power) against striking labor unions. This court struck down child labor laws, and kept children working in sweatshops.
Early in our history, in a case involving Dartmouth College, Chief Justice John Marshall described the status of a corporation in the eyes of federal law:
A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it.
We the People, acting through our legislatures, get to do with our creations what we think best. And in a 1978 case, a group of dissenting judges led by Byron White explained why the communications of these "creatures" needed to be regulated.
Corporations are artificial entities created by law for the purpose of furthering certain economic goals. In order to facilitate the achievement of such ends, special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets are normally applied to them. States have provided corporations with such attributes in order to increase their economic viability and thus strengthen the economy generally. It has long been recognized, however, that the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process…The State need not permit its own creation to consume it.
And even that most conservative justice, William Rehnquist, agreed.
The State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere….Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed.
The special dangers that Rehnquist warns of are compounded today, when so many corporations answer not to Americans, but to foreign owners. With a single, stupid decision, the ideological zealots on the Roberts Court have concluded that the business corporation has reached such an exalted status in American democracy that even wealthy Arabs, Europeans or Asians--interested solely in their own greed and national interests--have an unbridled "right" to buy members of Congress and other American elected officials.
If this is not remedied, this Court may do what all the armies of the Kaiser, the fascist gangsters and the communist empire could not, and open American democracy to destruction from within.
The Court deserved the smackdown it got from the President of the United States last night, and Justice Sam Alito's rude protest--this year's Joe Wilson outburst--was just further proof of what a bunch of political hacks the justices have become.