So the Supreme Court has been igniting passions, has it? Of its
Citizens United decision, people cried: “shameless
hypocrisy,” “nothing short of fraud . . . ,”
“Truly frightening . . . ,” “a narrow elite is
imposing itself through the legal system . . . ”
There are mobilizings to amend the constitution, impeach
“the Supreme Court 5,” instruct the president on
Justice Stevens’ replacement. Senator Schumer, here in the
Empire State, is working on a bill that would force business and
nonprofit corporations to reveal their involvement in elections!
If Schumer and others are determined to confront the Supreme
Court, maybe they are unearthing the sources of Citizens United
and related constitutional infelicities, formulating research
questions like: By what flimflam did the 1787 “Miracle in
Philadelphia” convention deny the majority of humans in
this new nation standing before the law? Why did the people who
were people in the early 1800s let Supreme Court justices seize
the authority to amend the Constitution?
But Schumer isn’t very determined. He told the NY Times
Company the other day: “What we’re trying to do first
is make sure everything we do is within the constitutional
mandate set by the Court.”
What’s with such obeisance? Why allow humans in black robes
to limit our aspirations, supply our words, command our deeds?
It’s not so hard to ask: So, what IS the United States
Supreme Court? What has been the Court’s role in valiant
human struggles to nullify England’s and the USA’s
defining of whole classes of people – the majority,
actually – as unequal, inferior, invisible? How often has
it invoked the Anglo-Saxon’s unique reverence for law to
instruct the rabble on progress and civilization?
When slaves, free Africans, Native peoples, women, indentured
servants, immigrants, birth control and sexual orientation
advocates appealed to the Constitution for remedy, how did our
honorable justices craft the law of the land? When farmers,
workers and whole communities built a mass movement to form a
cooperative commonwealth instead of a corporate-industrial order,
whose values, sayeth the Court, wielded the Constitution against
When people opposing US government imperialism and wars vexed
white, male, propertied elites privileged with constitutional
head starts, who, ruled the Court, properly called upon the armed
might of the nation?
It’s not a pretty story.
If the constitutional law professor who is president were
somebody else, he might jump into this teaching moment. His first
“Uncolonizing Our Minds” Chat could go like this:
“We can avoid careless analysis. Here’s something I
found in an otherwise astute critique of Citizens United:
‘Congress passed reasonable regulations [on corporate
spending in elections]. And over the decades the Courts have
affirmed these regulations over and over, to keep the voice of
actual citizens from being drowned out . . . ’
“Alas, this does not pass the straight face test.
“Campaign finance laws regulating corporations (like laws
legalizing corporate lobbying, like laws legalizing corporate
domination in the workplace and corporate poisoning of the
Earth), have been cheesy from birth. The ‘good
precedent’ campaign spending cases Citizens United modified
– such as Austin – were no less whimsical than
Citizens United . . . and incoherent to boot. Court opinions on
corporations and the Constitution – starting with the
Dartmouth College case in 1819
– have consistently affirmed
the authority of a corporate few to do the real governing in
these United States. So many of the Court’s decisions in
amendments cases violated those amendments’
clear intent and explicit language.
“Like, BEFORE Citizens United, our corporate class
didn’t drown out public debate? Didn’t dictate the
framing of issues and legislation? Didn’t filter out
candidates? BEFORE Citizens United, financial corporations were
not transferring unimaginable wealth from the many to the few?
BEFORE Citizens United, people could relatively easily stop US
government wars and preparations for wars? End this
government’s manipulations of other peoples, flora, fauna,
mountains, oceans, seeds, genes and governance?
“Majorities used to have constitutional authority to
instruct their representatives to launch sane and just
transitions in energy, health, agriculture, finance,
manufacturing, media, the workplace? Majorities enjoyed
constitutional authority to define business corporations as state
actors? Render them subordinate to municipalities and states?
“Like, BEFORE Citizens United, the United States of America
wasn’t a minority-ruled corporate-imperial empire?
“I’m delighted that people have been reading Citizens
United. For those shocked at its lack of logic, argument by
assertion, manipulation of precedent and juridical legerdemain, I
suggest you read a few score more opinions.
“I commend to you the venerated Chief Justice Marshall
– in my book, he’s Mr. Argument-By-Assertion. Of
course, he’s in good company: Taney, Bradley, Waite, Brown,
Field, White, Fuller, Brewer, Story, Swayne, Rehnquist and many
more justices ably justified injustice. Holmes from his Brahmin
perch deftly mocked appellants’ working class origins and
perspectives. Taft saw anarchists lurking behind every blade of
grass. And check out Chief Justice Warren – you might be
surprised at the imperious well-settled law the Warren court
chose not to trifle with.
“Read what the Court actually wrote in response to
constitutional claims by slaves, women, workers, free speech and
human rights petitioners across two centuries and into this 21st.
Don’t miss the cases adjudicating Native people’s
struggles in every generation, or those addressing people’s
efforts to make peace with our planet.
“I realize that some advise caution about opening up
dangerous floodgates. But as far as I’m concerned, people
yearning to be free and self-governing are the floodwaters.
We’ve been kept in check by grand myths and relentless
agitprop about the nation’s founding, Anglo-American legal
traditions, our Constitution, the rule of law. But those gates
are made of fairy tales. They exist only in our minds.
There’s no time like our time to start tearing them down.
“Then if we ever DO finally turn ourselves into free
people, maybe we’ll know better than to let our sovereign
governing authority be snatched from our hands by a few people in
black robes . . . ”
RICHARD GROSSMAN’s work on the law, corporations and
governance includes the books Defying Corporations, Defining
Democracy (2001); the best-selling pamphlet
Taking Care of
Business: Citizenship and the Charter of Incorporation
(1993) and Fear
At Work: Job Blackmail, Labor and the Environment
(1982) [See also these book reviews:
The Myths of Environmental Regulation and
Job Blackmail (3-page PDF)].
Copyright © Richard Grossman, 2010.
Reprinted with permission of the author.