America's Supremes: Court Over Constitution - 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 billion punitive damage award to 0 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 email@example.com.
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.