By Joshua Holland, AlterNet
Posted on November 25, 2011
Perhaps there were truly free markets before the industrial
revolution, where townspeople and farmers gathered in a square to
exchange livestock, produce and handmade tools. In our modern world,
such a market does not exist. Governments set up the rules of the game,
and those rules have an enormous impact on our economic outcomes.
In 2007, the year of the crash, the top 1% of American
households took in almost two-and-a-half times the share of our nation's
pre-tax income that they had grabbed in the 40 years folliwing World
War Two. This was no accident – the rules of the market underwent
profound changes that led to the
upward redistribution of trillions in
income over the past 30 years. The rules are set by Congress –
under a
mountain of lobbying dollars – but they are adjudicated by the courts.
The
Supreme Court (SCOTUS), with a right-wing majority under
Chief Justice
John Roberts, has become a body that leans too far toward the “1%” to be considered a neutral arbiter. So whether they know all
the ins and outs of the court's profound rightward shift or not, those
protesting across the country as part of the Occupy movement are
motivated by its corruption as well.
While conservatives constantly rail against judges "legislating from
the bench,"
it is far more common for right-leaning jurists to engage in
“judicial activism” than those of a liberal bent. That's what a 2005
study by Yale University legal scholar Paul Gewirtz and Chad Golder
found. According to the scholars, those justices most frequently labeled
"conservative" were among the most likely to strike down statutes
passed by Congress, while those most frequently labeled "liberal" were
the least likely to do so.
A 2007 study by University of Chicago law professor Thomas J. Miles
and Cass R. Sunstein looked at the tendency of judges to strike down
decisions by federal regulatory agencies, and found a similar trend. The
Supreme Court's "conservative" justices were again the most likely to
engage in this form of "activism," while the "liberal" justices were
most likely to exercise judicial restraint.
The most notorious case of activism by the Roberts court was its ruling in
Citizens United v Federal Election Commission, which
overturned key provisions of the McCain-Feingold campaign finance law,
rules that kept corporations -- and their lobbyists and front groups (as
well as labor unions) --- from spending unlimited amounts of cash on
campaign advertising within 60 days of a general election for federal
office (or 30 days before a primary).
At a 2010 conference, former Rep. Alan Grayson, D-Florida, put the potential impact of Citizens United
in stark terms. “We’re now in a situation,” he told the crowd, “where a
lobbyist can walk into my office…and say, ‘I’ve got five million
dollars to spend, and I can spend it for you or against you. Which do
you prefer?’”
To arrive at their ruling, the court’s conservative majority
stretched the Orwellian legal concept known as
“corporate personhood” to
the limit, and
gave faceless multinationals expansive rights to
influence our elections under the auspices of the First Amendment.
“They wanted to hear the possibility that that’s the way the
constitution would read to them,” said Grayson. “So they picked an issue
out of the air that nobody had conceived of [as a
First Amendment case]
because 100 years of settled law meant that corporations cannot buy
elections in America, and
they not only allowed corporations to buy
those elections, but they made it a Constitutional right.”
Early on, the plaintiffs themselves had decided not to base their
case on the
First Amendment. It was the conservative justices themselves
who ordered the case re-argued fully a month after a ruling had been
expected, asking the lawyers to present the free speech argument they’d
earlier abandoned.
In his dissent,
Justice Stevens noted that it was a highly unusual
move, and that the court had further ruled on a Constitutional issue
that it didn’t need to consider in order to decide the case before it --
the diametric opposite of the principle of “judicial restraint.”
He
charged that the conservative majority had "changed the case to give
themselves an opportunity to change the law."
That's nothing new. The
Citizens United decision simply
advanced a bizarre legal doctrine, developed during the last 150 years,
that effectively codifies the power of corporate interests.
Corporate personhood's origin in English law was reasonable enough;
it was only by considering companies “persons” that they could be taken
to court and sued. You can’t sue an inanimate object.
During the 19th century, however,
the robber barons, aided by a few
corrupt jurists deep in their pockets, took the concept to a whole new
level in the United States. According to legal textbooks, the idea that
corporations enjoy the same constitutional rights as you or I was
codified in the 1886 decision
Santa Clara County v. Southern Pacific Railroad. But historian
Thom Hartmann dug into the original case documents
and found that this crucially important legal doctrine actually
originated with what may be
the most significant act of corruption in
history.
It occurred during a seemingly routine tax case: Santa Clara sued the
Southern Pacific Railroad to pay property taxes on the land it held in
the county, and the railroad claimed that because states had different
rates, allowing them to tax its holdings would violate the
Equal
Protection Clause of the
14th Amendment. The railroads had made the
claim in previous cases, but the courts had never bought the argument.
In a 2005 interview, Hartmann described his surprise when he went to a
Vermont courthouse to read an original copy of the verdict and found
that the
judges had made no mention of corporate personhood. “In fact,”
he told the interviewer, “the decision says, at its end, that because
they could find a California state law that covered the case ‘it is not
necessary to consider any other questions’ such as the constitutionality
of the railroad’s claim to personhood.”
Hartmann then explained how it was that corporations actually became “people”:
In the headnote to the case—a commentary written by the clerk, which
is not legally binding, it’s just a commentary to help out law students
and whatnot, summarizing the case—the Court’s clerk wrote: “The
defendant Corporations are persons within the intent of the clause in
section 1 of the Fourteenth Amendment to the Constitution of the United
States, which forbids a State to deny to any person within its
jurisdiction the equal protection of the laws.”
The discovery “that we’d been operating for over 100 years on an
incorrect headnote” led Hartmann to look into the past of the clerk
who’d written it,
J. C. Bancroft Davis. He discovered that
Davis had
been a corrupt official who had himself previously served as the
president of a railroad. Digging deeper, Hartmann then discovered that
Davis had been working “in collusion with another corrupt Supreme Court
Justice, Stephen Field.” The railroad companies, according to Hartmann,
had promised Field that they’d sponsor his run for the White House if he
assisted them in their effort to gain constitutional rights.
Hartmann noted that even after the ruling, the idea of corporate
personhood remained relatively obscure until
corporate lawyers dusted
off the doctrine during the Reagan era and used it to help reshape the
U.S. political economy.
Nike asserted before the Supreme Court . . . as Sinclair Broadcasting
did in a press release last month, that these corporations have First
Amendment rights of free speech. Dow Chemical in a case it took to the
Supreme Court asserted it has Fourth Amendment privacy rights and could
refuse to allow the EPA to do surprise inspections of its facilities.
J.C. Penney asserted before the Supreme Court that it had a Fourteenth
Amendment right to be free from discrimination —the Fourteenth Amendment
was passed to free the slaves after the Civil War—and that communities
that were trying to keep out chain stores were practicing illegal
discrimination. Tobacco and asbestos companies asserted that they had
Fifth Amendment rights to keep secret what they knew about the dangers
of their products. With the exception of the Nike case, all of these
attempts to obtain human rights for corporations were successful, and
now they wield this huge club against government that was meant to
protect relatively helpless and fragile human beings.
Such is the power of a
corrupt judiciary.
Returning to the present, while
Citizens United is arguably
the Roberts court's most widely criticized ruling, it was not the only
time the majority has bent over backward to protect the interests of
corporate America and the 1%. Legal reporter
Dahlia Lithwick,
writing on
Slate, condemned the court's “systematic dismantling
of existing legal protections for women, workers, the environment,
minorities and the disenfranchised.” Those who care about spiraling
inequality, she wrote, “need look no further than last term at the high
court to see what happens when—just for instance—one’s right to sue
AT&T, one’s ability to being a class action against
Wal-Mart, and
one’s ability to hold an investment management fund responsible for its
lies, are all eroded by a sweep of the court’s pen.”
The takeaway is that those camping out in town squares across the
country must direct their energy not only at Wall Street, but also at
its enablers, in Congress, and ultimately, at the high court.
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