A Corporatist Constitution:The Roberts Legacy

In direct contrast to its original iteration, The U.S. Constitution adopted in 1787, (which replaced the original document declared by George Washington as “contrary to ideals of the new republic” and forebodingly named the “Articles of Confederation” (see chart below for comparisons) emphasized that the U.S. Supreme Court should be the “supreme law of the land”; decisions from which were to be binding upon state and federal officers alike. But the Roberts-led group of conservative activist justices are, according to Thom Hartmon, “….kings in black robes deciding our laws”and they have been tenacious in decimating individual rights in favor of corporate plutocracy. images

1. States are sovereign 1. People of the whole nation are sovereign–exercise of sovereignty is divided between states and the central government.
2. No independent executive 2. Independent executive chosen by electoral college.
3. No federal courts-all laws enforced by state courts. 3. Separate federal court system, with power to resolve disputes between the states.
4. No taxing power given to Congress. 4. Congress has power to “lay and collect taxes, duties, imposts, and excises.”
5. Congress has no power over interstate or foreign commerce. 5. Congress has power to regulate commerce with other nations and among the states.
6. Congress consists of one body and each state has one vote. 6. Congress consists of two bodies. Number of Reps in House is based on population and each state has two Senators.
7. Amended only by approval of ALL the states. 7. Amended with approval of 3/4 of states.
8. Congress has only specific, delegated powers. 8. Congress has implied as well as specific powers.
9. Only state governments act directly on the people.  9. Both central government and state governments acts directly on the people


To this concept of the Constitution, the Supreme Court, after testing the waters with one or two  tippy-toe dips, boldly announced in 1803 in the case of Marbury v. Madison that it was the heart of government to maintain the supremacy of the Constitution and that in the exercise of its judicial work of applying the law in cases brought before it, it would invalidate acts of Congress which were in conflict with the Constitution. Whether or not the framers of the Constitution intended the Supreme Court to exercise this power of “judicial review” in enforcing the supremacy of the Constitution, or whether the Court “usurped” it, has provoked many a bitter argument which we need not enter into here.

However, the incontrovertible pinnacle of the disagreement between those citizens who viewed the “Articles” as the true law of the land and those who considered the U.S. Constitution the true law of the land was, of course, the Civil War. One thing remains certain despite the bloodiest and deadliest war in the relatively short history of the United States…the differences of opinion have not abated; they have merely adopted political party labels as the line of demarcation rather than individual state or regional boundaries. Conservatives are and always have been masters of figuring out ways to keep skinning the same damn cat. Please, no nasty comments from cat lovers, it’s just a saying.

That being said, I personally think that the vast preponderance of average U.S. citizen has a very wholesome respect for the Constitution of the United States; and that respect for the Constitution isn’t borne of clear, accurate knowledge of the document itself; it only matters if it agrees with your opinion on any given subject.

By no means excluding myself from the above verbal caricature, the past three decades have been unkind to my belief system, though, because in the current five-to-four majority of the radical conservative protectors of their chosen “version” of the U.S. Constitution–as decided by that bloody and deadly Civil War–are corporatists who will twist their legal arguments into any damn pretzel logic necessary to recognize, and expand, the legal and Constitutional rights of corporations (and the very wealthy), while minimizing or alleviating entirely, the legal and Constitutional rights of natural human beings. Corporations are simply not people(my friend), any more than we are all just water bags with skin even though water comprises 50-75% of our bodies.

Whatever you call them, having passed the five-year anniversary of the Citizens United decision this week, it should be clear to any semi-objective observer that the five Justices in the Conservative majority on the United States Supreme Court — Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito — are arguably the most radical extremists ever to sit on the Supreme Court bench.

You have to look back to the Supreme Courts of the now-infamous Lochner era (1897 to 1937) to find a group of judicial extremists to even remotely approach the level of today’s “felonious five” in their disregard for precedent and their willingness to “legislate from the bench” as they impose highly misunderstood – and nationally damaging – laissez-faire economic theories on the country.

Like the Lochner era Courts, which created bogus legal doctrines such as “substantive due process” and “liberty of contract,” and then used those newly-invented legal doctrines to strike down any legislation that burdened corporations or disturbed the existing economic hierarchy, today’s Supreme Court has expanded its own baseless legal doctrines. “Corporate constitutional rights” and “money as speech” have bestowed inalienable Constitutional rights, and legal rights comparable to those of sovereign countries, on corporations and the moneyed elites who profit from them while spurning the rights of individuals for whom the original “fathers” intended.

Five years after Citizens United, corporations continue to run roughshod over the rights of “We the People”, and as a result, our small “d” small “r” democratic republic is being legally changed, before our eyes, into a corporate plutocracy.

The pro-corporatist activism promulgated by today’s Supreme Court has its roots in a 1971 memorandum (“The Powell Memo” or “The Powell Manifesto”) written for the U.S. Chamber of Commerce by an attorney named Lewis Powell, then a corporate lawyer and member of the boards of 11 corporations. The memo, which was entitled “Attack on the American Free Enterprise System,” called on the Chamber to engage in a sustained and concerted campaign to use an “activist-minded Supreme Court” to shape big business-friendly social, economic and political change.

That same year, Richard Nixon arguably the most corrupt and paranoid President of all time, nominated the same Lewis Powell, to the Supreme Court. The same Justice Lewis Powell who later authored “The Powell Memo” and later joined the Court’s per curium decision in Buckley v. Valeo (1976), in which the Court created the bogus legal doctrine of “money equals speech,” and then used that legal doctrine to strike down the federal government’s first ever attempt at regulating political fundraising and political spending through the use of comprehensive campaign finance reform.

Not surprisingly, the Powell Memo, did not become available to the public until long after his confirmation to the Court. It was leaked to Jack Anderson, a liberal syndicated columnist, who stirred interest in the document when he cited it as reason to doubt Powell’s legal objectivity to the same extent with which is openly expressed about today’s Antonin Scalia (spuriously nominated by Ronald Reagan) and Clarence Thomas (of Anita Hill fame), nominated by George H. W. Bush.

Interestingly, Thomas, whose Supreme Court nomination remains one of the most bitterly contested of the modern era, hasn’t uttered a single spoken word on record nor posed a single official question since 2006, despite being an unapologetically, politically conservative activist on the Court, second only to Scalia.

Later, in January 2011, Thomas was exposed by the liberal advocacy group Common Cause for failing to disclose $686,589 in income earned by his wife (between 2003 and 2007) from the ultra-conservative advocacy group, The Heritage Foundation. Thomas instead reported “none” where “spousal noninvestment income” would be reported on his Supreme Court financial disclosure forms.The following week, Supreme Court Justice Thomas, one of nine supposed legal scholars charged with interpreting, defending and enforcing the Constitution of the United States, stated that the disclosure of his wife’s income had been “inadvertently omitted due to amisunderstanding of the filing instructions“.

When Chief Justice Roberts and Justice Alito were elevated to the Supreme Court in 2005, the all-out judicial assault on the rights and the interests of the American people began in earnest. Here is a short, non-inclusive list of the havoc-wreaking cases that the ultra-corporate Roberts’ Court has decided:

  • District of Columbia v. Heller (2008):At the urging of well-funded lobbyists from the National Rifle Association, the Supreme Court “found” an individual has the right to keep and bear arms under the 2nd Amendment. The court’s landmark 5-4 decision wiped away years of lower court decisions holding that the clear intent of the Second Amendment was to tie the right of gun possession to service in a “well-regulated militia.”
  • Citizens United v. Federal Election Commission (2010):The Supreme Court, again in a 5-4 decision, ignored decades of legal precedent to strike down those parts of the McCain/Feingold campaign finance reform law that regulated “independent expenditures” and “electioneering communications” made by corporations. The Supreme Court based its decision on the specious “finding” that corporations, including nonprofit corporations such as Citizens United, Inc., have inalienable rights of free speech equal to those of individuals under the First Amendment, by equating donated money to constitutionally protected speech rather than properly equating monetary donations to non-constitutionally protected property.
  • Shelby County v. Holder (2013):The Supreme Court again overstepped Constitutional boundaries when, in a 5-4 decision, it overturned Section 5 of the Voting Rights Act of 1965, which requires certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices. The Supreme Court’s decision is unprecedented in that it was a flagrant violation of the separation of powers. After holding wide-ranging hearings on the matter, Congress reauthorized the Voting Rights Act in 2006 because it found that the protections of the Voting Rights Act were still necessary to protect minority voters from being disenfranchised by state and local governments, and that “preclearance” was an effective tool in preventing discrimination.

The Supreme Court is an appellate court. It is supposed to decide cases by applying the law to the existing facts. The Supreme Court has no fact-finding power of its own. The decision in Shelby County is based on the Supreme Court’s own finding of fact that Voting Rights Act was no longer necessary. This was one of the most egregious examples of a Court legislating from the bench in American history.

  • McCutcheon v. FEC (2014): In another landmark campaign finance case, the Supreme Court struck down Section 441 of the Federal Election Campaign Act, which imposed a biennial aggregate limit on individual contributions to national party and federal candidate committees. In so doing, the Supreme Court’s conservative majority decided that the First Amendment, for all intents and purposes, gives wealthy donors carte blanche to buy our public elections.
  • Harris v. Quinn (2014): Again in a 5-4 decision, the Supreme Court ruled that home-care workers in Illinois cannot be forced to pay dues to a union if they’re not union members, because they aren’t full-fledged public employees like cops, firefighters and teachers. The Harris decision appears to be limited to home-care workers, so it is not the “knock-out punch” to public-employee unionism that many people feared was coming. But it is a step in the direction of overturning the 1977 decision in Abood v. Detroit Board of Education, which essentially made “right-to-work-for-less” the law of the land. Justice Alito, who wrote the Harris decision, suggested in that opinion that the Conservatives had Abood in their sights.
  • Burwell v. Hobby Lobby (2014): Finally, the Supreme Court found that for-profit corporations were exempt from laws their owners religiously object to if there is a less restrictive means of furthering the law’s interest. The decision was based on an interpretation of the Religious Freedom Restoration Act, so it did not address whether such corporations are protected by the free-exercise-of-religion clause of the First Amendment of the Constitution. It was the first time the Supreme Court had ever held that Corporations had legal rights to freedom of religion. images (1)

This nonsense, quite frankly, has got to stop or the remaining integrity of the country that professes to be “of, by and for the people” will find itself as unrecognizable as the Bruce Jenner that won the 1976 Decathlon Olympic Gold Medal.The Supreme Court is systematically stripping Constitutional Rights from real, live human beings and giving those rights to corporations and a very small group of plutocrats. There are a lot of living, breathing human beings who belong to a lot of issue advocacy groups and whose “oxen were gored” in the decisions discussed above. It’s time for those groups, and so many more, to begin working together to take back the political power that the Supreme Court has stolen from the American people. The only decisive way to do that is, for starters, to amend the U.S. Constitution so that it clearly and unequivocally states that:

  • Inalienable rights protected under the Constitution belong to human beings, and
  • Money is not speech, it’s property. Free speech is protected, free property is not.

Harvey A. Gold