A Blog of the Global Justice Movement

Tuesday, February 7, 2012

E. J. Dionne v. Citizens United

Give credit where credit is due, especially when an act by someone you had presumed to be opposed to everything you stand for appears to signal a change of heart. It was, after all, not long after the late Senator Russell Long of Louisiana opposed worker ownership along the lines proposed by Louis Kelso that Long made a complete about-face and became the champion of the Employee Stock Ownership Plan that has made more than 10 million workers in over 10 thousand companies part owners of the enterprises in which they work — and all without risking one cent of their own savings or taking any reductions in pay or benefits. As Long said, once he understood the concept, "I don't care who's right, I care what's right — and this is right."

The obvious moral of the story is that everybody has the natural capacity or potential to understand right from wrong, that is, the basic precepts of the natural law. Whether a particular individual is afflicted by conditions that make the realization of this potential difficult or impossible in human terms is a different issue, and one to be determined on a case-by-case basis, not for an entire class.

A far more important issue is whether someone who realizes the truth or starts to understand a new concept has the courage and intellectual honesty to accept it and act on it. Everybody knows someone who, having done something that ruined the lives of others, thereby ruined his or her own life — and was afraid to try and correct the situation out of pride, fear, embarrassment, or the threat of losing worldly wealth and fame. George Bernard Shaw could quip that martyrdom is the only way for a man to become famous without ability, but he forgot about the ultimate human talent for simple honesty, a virtue for which every human being has the potential.

That is why E. J. Dionne's courageous stand in his column, "The Court's Catastrophe," in the Washington Post yesterday is, despite the general moral breakdown of our culture and the resultant economic and political degeneration of society — and a general dissatisfaction with much of what has come from Dionne — a sign of great hope and encouragement. It is an implicit admission that the basis for many of the Supreme Court's decisions over the years, including Scott v. Sandford and Roe v. Wade, is contrary to the clear sense and natural law orientation of the United States Constitution.

Dionne explains that the opinion handed down by the Supreme Court in Citizens United v. Federal Election Commission (558 U.S. 08-205 (2010)), holding that the First Amendment prohibits government from placing limits on independent spending for political purposes by corporations and unions, has not had effects that could be described as either just or consistent with the original intent of the Framers of the Constitution. The ostensible issue was whether any person (as that term is used in the Constitution) can have his, her, or its freedom of speech, especially political speech, so restricted as to forbid or place limits on that expression with respect to degree rather than kind.

In English, the question as far as the Court was concerned, was not what the corporations or unions were doing — spending money to influence politics — but how much they were spending. From the natural law orientation of the U.S. Constitution, that was the wrong issue. Obviously, given that "person" (as that term is used in the Constitution) includes corporations and unions, then placing limits on independent political activity, whatever form it takes, as long as the act itself is legal, is an infringement of freedom of speech. If somebody wants to give political speeches on his or her own ticket 24/7 until he drops from exhaustion, or spend every cent he or she possesses to advance his or her own interests in the public arena, he or she is free to do so.

And that's the key to understanding the injustice inherent in the Court's decision that Dionne grasped, although he focused on the bad results, not the bad jurisprudence that led to the bad results. That is, just what is a "person" as that term is used in the Constitution?

From the natural law orientation of the Constitution, a document that takes the explicit statement of natural law in the Declaration of Independence as a given — or the Constitution loses its claim to legitimacy — the term "person" (defined as "that which has rights") necessarily applies only to natural persons. In the Judeo-Christian tradition within which the Framers operated, that means human beings, angels, and God, of which only the first falls under the purview of the State, as the First Amendment also declares.

Thus, logically and legally, the term "person" as it is used in the Constitution applies only to human beings. It does not apply to corporations, unions, or any other form of artificial person that exists only as a result of delegation of rights from natural persons. The State may, indeed, must, make regulations and place limits on the exercise of any right within the common good, for which the State has its primary responsibility.

For natural persons, the caveat is that the State may never define the exercise of any right in such a way as to unnecessarily limit or even negate the right itself for any individual or group.  That would be socially unjust. For example, laws, or social or institutional conditions that explicitly or implicitly limit capital ownership to a small group are socially unjust because they inhibit or prevent the free exercise (within defined limits) of the rights of property, and therefore are an infringement of the natural right to be an owner at all: the right to property.

For artificial persons, the case is fundamentally different. An artificial person is specifically a creature of law. It is a "person" only because the State, applying the natural right of freedom of association to the organizers of the corporate body by defining how the right of freedom of association is to be exercised, has granted a corporate body that status. Because the State defines what it means for something to be an artificial person and thereby confers on a thing a status that does not inhere to that thing naturally, an artificial person is not bound by the precepts of the natural law, but only human positive law; it is an artificial person recognized for the sake of expedience, not a natural person that has that status by nature.

Thus, neither a union nor a corporation can claim protection for civil rights in the United States. The First Amendment — the whole of the Constitution, in fact — simply does not apply to corporate bodies except insofar as they are an expression of the legitimate, defined and protected right not of freedom of speech, but of freedom of association. If the purpose or one of the purposes for which a corporate body is organized is to promote political action, the State may regulate and limit such action without involving any constitutional right at all, especially if the individual members are free to do as they please — as individual, natural persons — in the political arena away from that corporate body.

That should settle the matter, but Dionne (perhaps unconsciously) has raised an even more fundamental issue. There was a hint of this last week when he stated his opinion that by taking away any meaningful religious exemption from certain provisions of the healthcare bill, President Obama has betrayed the trust placed in him by the American people.

From the president's perspective, he might not even realize what all the fuss is about. Obama's orientation appears to be one that is generally accepted today: that all rights come from the State. A "person" is whatever the Congress or the courts declare it to be. The whole idea of natural, inalienable or inherent rights is not something with which the State need concern itself, except insofar as it finds it expedient or prudent to do so.

As we have seen in the series we've been running on this blog on "Raw Judicial Power," the idea that natural law can safely be disregarded reached its culmination in the Dred Scott case in 1857. In his opinion, Chief Justice Roger B. Taney declared that no black man, slave or free, has any rights that any white man was bound to respect. That is, a black man was not, and could never be a "person" as that term is used in the Constitution.

The Fourteenth Amendment was, in part (as William Crosskey explained), adopted to overturn Scott v. Sandford. The first chance it got, the United States Supreme Court nullified the Fourteenth Amendment in its opinion in the Slaughterhouse Cases, an opinion so vaguely worded — and, according to Crosskey, deliberately so — as to give the Court almost absolute power:

"So, the Court's opinion in the Slaughter-House Cases was, undoubtedly, most craftily written; written so as to enable the Court, with a good face, in future cases, to jump either way: to observe the intended meaning of the Privileges and Immunities Clause if that seemed unavoidable, or, in the alternative, to destroy the clause utterly if this seemed safe. And the fact that this elaborate preparation was made also means that the majority Justices saw and fully comprehended the possibility of the intermediate, plain, and sensible meaning of the Privileges and Immunities Clause here expounded, to which, indeed, Justice Bradley called attention, in his dissenting opinion. So, the majority must, as the minority charged, already have determined, if they dared, to destroy this new provision of the Constitution completely." (William Winslow Crosskey, Politics and the Constitution in the History of the United States. Chicago, Illinois: University of Chicago Press, 1953, 1130.)

The fact that there were four dissenting opinions did not alter the basic decision of the Court in the Slaughterhouse Cases, or its future interpretation. It was, in fact, the beginning of the push by both capitalists and socialists to redefine the institution of private property, and laid the groundwork for the abysmal monetary and fiscal policy of the New Deal (cf. Harold G. Moulton, The New Philosophy of Public Debt. Washington, DC: The Brookings Institution, 1943.) and a virtual State takeover of the economy, leading directly into the Keynesian Abyss of debt into which the world has fallen.

As Crosskey related, the four dissenting justices — including Chief Justice Salmon P. Chase — disagreed with the majority that the privileges and immunities of U.S. citizens should be limited to those specifically enumerated in the Constitution. (Ibid.) This point, manifest in the Constitution, was brought forcefully home to the majority, the language being extraordinarily inflammatory, the minority going so far as to accuse the majority of an unlawful purpose in promoting such an obviously unjust reading of the language of the Fourteenth Amendment.

Unfortunately, the dissenting justices then undermined their own position by confusing the meanings of the terms used, (ibid., 1122) and thus the natural right to be an owner, with the legitimate role the State plays in defining what an owner may do with what he or she owns. The dissenting justices claimed that limitation of a right, in the sense of defining the proper exercise thereof, was tantamount to "abridgment" of that right, and that, consequently, as Crosskey explained, "the Privileges and Immunities Clause forbade the states to 'abridge' any of an indeterminate number of vague and indefinite 'privileges and immunities which of right belong[ed],' so the minority said, 'to the citizens of all free governments." (Ibid., 1121.)

Further, the evidence suggests (as Crosskey related) that the minority justices were absolutely convinced that they were defining basic rights accurately. The fact that their analyses were directly at odds with the natural law basis of the Constitution, and that they were actually assisting the majority in changing the nature of what it means for something to be "owned" or to be a person does nothing to alter their deep sincerity. It is a testament to the inherent honesty of the minority in the face of what they saw as an exercise of what would a century hence in Roe v. Wade be termed "raw judicial power" that years later, in 1892, Justice Field of California repudiated his earlier stand that, effectively, gave the federal government in the person of the Supreme Court the power to grant and revoke natural rights. As Crosskey related,

"After much reflection," Justice Field confessed, in dissent from the Court's decision [in the matter of O'Neil v. Vermont (144 U.S. 323 (1892))], "I think the definition given at one time before this court by a distinguished advocate — John Randolph Tucker, of Virginia — is correct, that the privileges and immunities of citizens of the United States are such as have their recognition in or guaranty from the Constitution of the United States." (Ibid., 1124.)

In other words, the State, whether in the person of local, state, or federal governments, does not grant rights. The State can only recognize or guarantee rights, not create them.

We necessarily conclude that we cannot logically protest the exercise of "raw judicial power" in Citizens United, and yet support it in Scott, Slaughterhouse — or Roe v. Wade, simply because we support slavery, states' rights, or abortion. The end does not justify the means. It is to E. J. Dionne's credit that he seems to be starting to understand this. As he concludes his insightful analysis of the effects of Citizens United,

"In the short run, Congress should do all it can within the limits of Citizens United to contain the damage it is causing. In the long run, we have to hope that a future Supreme Court will overturn this monstrosity, remembering that the first words of our Constitution are 'We the People,' not 'We the Rich'."

We support Mr. Dionne in this laudable goal 100%.

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