2 March 2010 By Stephen Lendman On October 13, 1932, in laying
the Supreme Court Building's cornerstone, Chief
Justice Charles Evans Hughes said: "The Republic
endures and this is the symbol of its faith." The
words "Equal Justice Under Law" adorn its west facade.
Facing east is the motto "Justice, the Guardian of
Liberty." Since the Court's 1789 establishment, these
words belie its decisions, arguments, and "supreme"
allegiance to power, not "We the people." Since its founding, privilege
always counted most in America. The prevailing fiction
then and now is that constitutional checks and
balances restrain government, the founders having
created an egalitarian country free from wealth and
poverty extremes common most elsewhere. Like today, wealthy 18th century
colonialists had vastly disproportional land holdings;
controlled banking, commerce and industry; assured its
own ran the government and courts; and the supreme law
of the land, then and now, deters no president,
sitting government, or Supreme Court from doing what
they wish. From inception, America was
always ruled by men, not laws, who lie, connive,
misinterpret and pretty much do what they want for
their own self-interest and powerful constituents. In
1787, "the people" who mattered most were elitists.
The American revolution substituted new management for
old. Everything changed but stayed the same under a
system establishing: -- the illusion of democracy;
today the best one money can buy; even "better" now
with unfettered corporate spending and two-thirds of
federal judges from or affiliated with the extremist
Federalist Society (FS); it advocates rolling back
civil liberties; ending New Deal social policies;
opposing reproductive choice, government regulations,
labor rights and environmental protections; and
subverting justice in defense of privilege; current
SCOTUS members from or affiliated with FS include
Chief Justice John Roberts, Samuel Alito, Antonin
Scalia, Anthony Kennedy, and Clarence Thomas; -- a powerful chief executive at
the top; a virtual dictator in times of war; -- a bicameral Congress with a
single senatorial member able to thwart the will of
the majority; -- a committee system run by
power brokers; -- one vulnerable to lobbyist
interests; -- staggered elections to assure
continuity; -- a one-party state with two
wings, vulnerable to corruption; and -- a separate judiciary with
power to overrule Congress and the Executive, and at
times does. The Constitution's "We the
People" opening words are meaningless window dressing.
So is Article I, Section 8 stating: "The Congress shall have power
to....provide for (the) general welfare of the United
States" - the so-called welfare clause applicable also
to the Executive and High Court. The record shows otherwise -
decades of permanent wars, repressive laws, rampant
crime, unsafe streets, injustice, political
corruption, dishonest police, racketeering labor
officials, corporate fraud, raging unaddressed social
problems, rare efforts to change things, and since the
1970s, virtually none. The notion of "government of the
people, by the people and for the people" is bogus on
its face. People don't govern directly or through
representatives. They are governed by the rich and
well-born, movers and shakers, wheeler dealers, power
brokers, a Wall Street crowd looking after themselves
at the expense of most others. It's how America always
worked, including the High Court, established under
the Constitution's Article III stating: "The judicial power shall be
vested in one Supreme Court, and in such inferior
courts as the Congress may from time to time ordain
and establish." Congress is explicitly empowered
to regulate the Court, but, in fact, the Court often
controls Congress, freely using what's called
"judicial review," even though it's unmentioned in the
Constitution and the founders didn't authorize it. The concept derives from Article
VI, Section 2 saying the Constitution, laws, and
treaties are the "supreme Law of the Land" and judges
are bound by them. Also from Article III, Section 1
saying judicial power applies to all cases, implying
judicial review is allowed. Under this interpretation,
appointed judges literally have power to annul acts of
Congress and presidential decisions - though nothing
in the Constitution explicitly allows this. The famous 1803 Marbury v.
Madison decision was defining. As articulated by Chief
Justice John Marshall, it established the principle of
judicial supremacy, meaning the Court is the final
arbiter of what is or is not the law. He set a
precedent by voiding an act of Congress and the
President, and put a brake on congressional and
presidential powers - except that Executives are only
constrained to the degree they wish, able to take full
advantage of Article II, Section 1 stating: "The executive power shall be
vested in a President of the United States of
America," and Article II, Section 3 stating: "The President shall take care
that the laws be faithfully executed," omitting that
they lawlessly make them through Executive Orders,
Presidential Directives, and other means, including
George Bush claiming "Unitary Executive" powers, what
Chalmers Johnson called a "ball-faced assertion of
presidential supremacy dressed up in legal mumbo
jumbo." However, no constitutional
wording explicitly permits this. Yet Congress and the
High Court rarely override the Executive, so
effectively he's empowered with vast, frightening
authority, including as commander-in-chief of the
military, an autonomous capacity in peace but
dictatorial during war. With some ingenuity, Executives
have sovereign power. Congress is mostly a paper
tiger, and the High Court usually upholds presidential
authority. But if it wishes, it can make laws it wants
by judicial rulings.
Notable Court Decisions -- in Fletcher v. Peck (1810),
the law of property rights was stabilized, especially
contracts for the purchase of land; it was one of the
first times the Court ruled a state law
unconstititional; -- in Dartmouth College v.
Woodward (1819), the Court held that private corporate
charters were contracts, and as such, were protected
by the Constitution's Article I, Section 10 Contract
Clause including among other provisions that: "No State shall (make any) Law
impairing the Obligation of Contracts...;" -- in McCulloch v. Maryland
(1819), the Court ruled that a state can't tax a bank
branch established by an act of Congress; -- in Gibbons v. Ogden (1824),
the Court upheld the supremacy of the United States
over the individual states in the regulation of
intestate commerce; -- in Dred Scott v. Sandford
(1857), the Court ruled that black slaves and their
descendants had no constitutional protections; could
never become US citizens; that Congress had no power
to prohibit slavery in federal territories; slaves
couldn't sue for redress and their freedom; and as
chattel property, they couldn't be taken from owners
without due process; The decision was never overruled,
but in the 1873 Slaughter-House Cases, the Court held
that the 14th Amendment annulled part of it by making
all native born Americans citizens by birth. -- in Plessy v. Ferguson (1896),
the Court affirmed segregation in public places; -- in Santa Clara County v.
Southern Pacific Railroad (1886), the Court granted
corporations personhood under the 14th Amendment with
all accruing rights and privileges but none of the
obligations; The case and Court ruling
involved a simple land dispute, unrelated to corporate
personhood. After the decision, the Court reporter, JC
Bancroft Davis, wrote it in his "headnotes." The Court
allowed it to give corporations the same rights as
people, but their limited liability absolved them of
the obligations, empowering them to become the
dominant institution of our times, able to control
Congress, the Executive, and win numerous other
favorable Court decisions. Of all High Court rulings, this
was the most far-reaching and harmful. It gave
corporations unchecked powers, let them grow to
oligarchic size, operate outside the law, and subvert
the general welfare. -- in Lochner v. New York (1905),
the Court held that a "liberty of contract" was
implicit in the 14th Amendment's due process clause,
rejecting a New York law limiting the number of hours
a baker could work for reasons of health; calling it
"unreasonable, unnecessary and arbitrary interference
with the right and liberty of the individual to
contract," it was one of the Court's most
controversial decisions during the Lochner era from
1897 - 1937, when numerous laws regulating working
conditions were invalidated in favor of property
rights; -- in Korematsu v. United States
(1944), the Court ruled Franklin Roosevelt's Executive
Order (EO) 9066 constitutional, ordering the
internment of Japanese Americans during WW II;
Korematsu challenged his conviction for violating the
EO; in 1984, the US District Court for the Northern
District of California ruled in his favor, Judge
Marilyn Patel stating: "there is substantial support in
the record that the government deliberately omitted
relevant information (including military
justification) in provided misleading information in
papers before the court" that was critical to the
Supreme Court's decision. -- in Bush v. Gore (2000), the
Court overruled the majority vote to make George Bush
president; it overrode Florida's Supreme Court,
halting the state recount on the spurious grounds that
it violated the 14th Amendment's Equal Protection
Clause, an implausible argument but it held; it was
the first time ever in US history that the Court
reversed the popular will, installing its preferred
candidate instead; months later, when it was too late
to matter, a media-sponsored National Opinion Research
Center tabulation of all uncounted votes showed Gore
won Florida and was elected president; he knew it all
along but didn't contest; -- in Watters v. Twombly (2007),
the Court prevented states from regulating national
bank subsidiaries just as the subprime crisis erupted; -- in Regents of the University
of California v. Merrill Lynch (2008), the court
denied restitution from Enron's collusion and
defrauding investors; in Arthur Andersen v. United
States (2005), it absolved Enron's partner in crime
ruling jury instructions "failed to convey the
requisite consciousness of wrongdoing" because jurors
were told to convict Andersen if it had an "improper
purpose," even if it thought it was acting legally; of
course, Andersen knew the law, knew it acted
illegally, but thought it could get away with it and
did; -- in District of Columbia v.
Heller (2008), the Court sided with the gun lobby
saying even though they're "aware of the problem of
handgun violence in this country....constitutional
rights necessarily (take) policy choices off the
table;" -- in Exxon Shipping v. Baker
(2008 - 19 years after the Exxon Valdez spill), the
Court reduced the original $5 billion punitive damage
award to $500 million; this and earlier cases lowered
the bar for future malfeasance settlements, the Court
nearly always siding with business, giving fraudulent
and negligent companies wide latitude to endanger the
public and get away with it; -- in Citizens United v. Federal
Election Commission (2010), the Court ruled that the
government can't put limits on corporate spending in
political elections as doing so violates First
Amendment freedoms, legal "political speech,"
according to Justice Anthony Kennedy, writing for the
5 - 4 majority. The decision overruled Austin v.
Michigan Chamber of Commerce (1990), restricting
corporate political spending on the notion that (c)orporate
wealth can unfairly influence elections," and
McConnell v. Federal Election Commission (2003),
upholding part of the Bipartisan Campaign Reform Act
of 2002 (the McCain-Feingold Act) restricting
corporate and union campaign spending. In its January ruling, the Court
set a precedent, but does it matter given the
political power of big money, past failures to curb
it, and Professor John Kozy saying: "Expecting the Congress, most if
not all of whose members reside deep in corporate
pockets, to eliminate that influence can be likened to
expected the rhinovirus to eliminate the common cold.
Corporate money (in large or smaller amounts) is the
diseased life-blood of American politics; it carries
its cancerous spores to all extremities." As for the Court, Kozy cited
Justice Oliver Wendell Holmes' Lochner dissent, saying
"the Court has taken its task to be the
constitutionalization of a totally immoral, rapacious,
economic system instead of the promotion of justice,
domestic tranquility, the general welfare, and the
blessings of liberty." However, as HL Mencken observed,
Holmes was no "advocate of the rights of man (but
rather) an advocate of the rights of lawmakers. (Under
his judicial philosophy), there would be scarcely any
brake at all upon lawmaking, and the Bill of Rights
would have no more significance than the Code of Manu
(referring to discrimination against women in Hindu
literature)." Of course, the same observation
applies throughout Court history with past civil
libertarians far outnumbered by supporters of the
established order and big money that runs it. For
every William Brennan and Thurgood Marshall there have
been dozens of John Jays (the first chief justice),
Roger Taneys, William Howard Tafts, Scalias, Burgers,
Rehnquists, and Roberts. Even liberal Republican Earl
Warren, as California Attorney General, supported
interning Japanese Americans during WW II, despite
later writing the unanimous Brown v. Board of
Education decision as Chief Justice as well as
supporting other progressive rulings. Under Lyndon
Johnson, however, he also chaired the Warren
Commission cover-up of Jack Kennedy's assassination,
saying: "....there may be some things
that would involve security. This would be preserved
but not made public," even though the public has a
right to know as a democratic state's final arbiter. The Commission took testimony in
secret, later publishing sanitized versions two months
after the Warren Report. It prompted critics like
Sylvia Meagher in her landmark book titled,
"Accessories After the Fact" to rebut the Commission's
findings, largely based on evidence it published. It
excluded everything deemed sensitive and called Lee
Harvey Oswald the lone assassin, a conclusion very
much in dispute with growing evidence to prove it. Michael Parenti calls the Supreme
Court an "autocratic branch" of government. Its
members are appointed, serve for life, and have great
power for good or ill, nearly always supporting
institutions of power, including corporate America.
Even during the 1930s, "the Supreme Court was the
activist bastion of laissez-faire capitalism" until
public and White House pressure got it to accept New
Deal legislation. Post-1960s courts, however,
reverted to form: -- making it harder to prove
discrimination; -- weakening Miranda rights, -- diluting Roe v. Wade; -- giving child abusers more
rights than victims; -- weakening unreasonable
searches and seizures; -- turning a blind eye to illegal
surveillance; -- reinstating the death penalty
in 1976; -- supporting economic inequality
by upholding laws reducing welfare and other rulings
against the disadvantaged; -- granting more executive power
to the president; -- siding with business against
labor and victims of corporate fraud and harmful
products; -- ignoring the separation of
church and state by granting religious organizations
tax exemptions; -- ruling in Buckley v. Valeo
(1976) for a federal law limiting campaign
contributions, but saying money influencing elections
is constitutionally protected speech, and candidates
may give unlimited amounts to their own campaigns; and -- numerous other pro-business,
pro-state power rulings. As for unfettered political
spending, Ralph Nader's comments were unsurprising,
saying "The Supremes Bow(ed) to King Corporation,"
further weakening a fragile democracy and deeply
corrupted electoral process. With Washington already
corporate occupied territory, it's debatable what more
they need do. But they: "can now directly pour
(unlimited) amounts of corporate money, through
independent expenditures, into the electoral swamp
already flooded with corporate campaign PAC
contribution dollars. Without (shareholder) approval,
(they) can reward or intimidate people running for
office at the local, state, and national levels." The Court saying "Government may
not suppress political speech based on the speaker's
corporate identity" means influence depends on the
ability to buy it. The public is more than ever left
out. The electoral process is further corrupted, and
the notion of free, fair, and open elections is
fanciful, absurd, and the reason many voters opt out. Nader supports a grassroots
effort for a constitutional amendment to end corporate
personhood and get big money out of politics. Also
vital are: -- publicly funded elections; -- independent parties and
candidates; -- repeal of the Help America
Vote Act (HAVA), empowering corporations through
easily manipulated touchscreen electronic voting
machines, replacing them with hand-counted paper
ballots, administered by independent civil servants;
and -- numerous other reforms to turn
sham elections into real ones. Most important is: -- America's growing
repressiveness; -- its abandonment of the rule of
law, due process, and judicial fairness for society's
most disadvantaged; -- its bogus democracy under a
homeland police state apparatus; -- permanent war agenda; -- growing denial of civil
liberties and constitutional freedoms; -- letting social services erode
when they're most needed during growing economic
duress; and -- the High Court's acquiesce
propelling America toward tyranny unless an aroused
public intervenes to stop it. So far, there's not a
hint of it in sight. Stephen Lendman is a Research
Associate of the Centre for Research on Globalization.
He lives in Chicago and can be reached at
lendmanstephen@sbcglobal.net. Also visit his blog
site at sjlendman.blogspot.com and listen to
cutting-edge discussions with distinguished guests on
the Progressive Radio News Hour on the Progressive
Radio Network Thursdays at 10AM US Central time and
Saturdays and Sundays at noon. All programs are
archived for easy listening.
http://lendmennews.progressiveradionetwork.org/ Comments 💬 التعليقات |