The Crash of 2016

by Thom Hartmann

  Representative Ted Deutch, a Democrat on the House Judiciary Committee, introduced another constitutional amendment in November 2011, the “Outlawing Corporate Cash Undermining the Public Interest in Our Elections” Amendment. Robert Weissman, president of Public Citizen, applauded Representative Deutch’s amendment, saying, “It would clarify that constitutional rights are intended for real, live, breathing human beings. It would end corporate spending on elections. And it would give Congress authority to adopt a sensible campaign finance system. It would make America stronger, more democratic and more just.”

  Senator Bernie Sanders proposed, in December 2011, the “Saving American Democracy” Amendment, which would overturn Citizens United and make it clear that corporations are not people. In a statement Senator Sanders said, “There comes a time when an issue is so important that the only way to address it is by a constitutional amendment.” Sanders said in the effort to override the court decision that he labeled it “a complete undermining of democracy.” Senator Sanders’s “Saving American Democracy” Amendment has an interesting component that makes it different from all of the other proposed amendments and remedies: Section 4 of the amendment challenges the basis for every other Supreme Court decision related to campaign finance. He takes aim at the 1976 Buckley v. Valeo decision, in which the Supreme Court ruled that spending money to influence elections was a form of protected free speech, and struck down limits on expenditures.

  There are groups all over America bringing forth resolutions in cities large and small to say the same. These are the training grounds for a constitutional amendment.

  Several proposals are on the table, but I particularly recommend the model put forth by David Cobb at MoveToAmend.org. This proposed amendment is more explicit than simply inserting the word “natural” before the word “person” in the Fourteenth Amendment and could seriously begin the process of turning the United States into a democratic republic that is once again responsive and responsible to its citizens instead of to its most powerful corporations. The proposed amendment states the following:

  Section 1

  [A corporation is not a person and can be regulated]

  The rights protected by the Constitution of the United States are the rights of natural persons only.

  Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.

  The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.

  Section 2

  [Money is not speech and can be regulated]

  Federal, State and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, for the purpose of influencing in any way the election of any candidate for public office or any ballot measure.

  Federal, State and local government shall require that any permissible contributions and expenditures be publicly disclosed.

  The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.

  Section 3

  Nothing contained in this amendment shall be construed to abridge the freedom of the press.

  Section 4

  Congress shall have power to implement this article by appropriate legislation.

  Other variations on this amendment, some simpler and some more complex, can be found at MoveToAmend.org. The elegance of explicitly denying constitutional rights to anything except “living human beings” is that it will not only roll back Citizens United but it will also allow future legislatures to challenge corporate claims to “rights” of privacy (Fourth Amendment), protection from self-incrimination (Fifth Amendment), and the power to force themselves on communities that don’t want them because to do otherwise is “discrimination” (Fourteenth Amendment).

  We must be very careful that any amendment put forth isn’t just limited to giving Congress the power to regulate campaign spending; to do so would leave a wide swath of other Bill of Rights powers in the hands of corporations. Instead, an amendment must explicitly overturn the headnote to the Santa Clara County 1886 decision that asserted corporations are the same as natural persons in terms of constitutional protections.

  By doing this, we can begin the transition back from a Royalist state to the constitutionally limited representative democratic republic our Founders envisioned.

  Even before the Citizens United case blew open the doors to a corporate takeover of American politics, the corrosive influence of corporations having “rights” was already evident. After the crash, “we the people” must once again assert our right to do what’s best for the common good and, through the mechanism of a constitutional amendment, relegate corporations to their rightful place—as legal fictions and not natural persons.

  Take On the Court

  To ensure that the Supreme Court is never able to overturn the will of organized people again, we must also reconsider the role of the high court itself after the Crash of 2016.

  Ever since taking on the power to strike down laws passed by Congress and signed by the president, the Supreme Court has been behind a series of radical decisions that have provoked previous Great Crashes and wars.

  On June 16, 1858, Abraham Lincoln—shortly after he’d been nominated by the newly minted Republican Party as their candidate for the US Senate—denounced the Supreme Court’s decision in his famous “House Divided” speech in Springfield, Illinois. “We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free,” he said, “and we shall awake to the reality instead, that the Supreme Court has made Illinois a slave State.”

  Lincoln went on to lose the Senate campaign to Stephen Douglas, but after the loss his party nominated him for president, and he won that election in November 1860. During the four months between then and March 4, 1861, when he was sworn into office, seven southern states had organized and announced their intention to secede from the United States and form their own nation, the Confederate States of America. Lame-duck president James Buchanan declared their secession illegal, but could or would do little else. Lincoln was alarmed, but he was not yet president.

  On the day of his inauguration, Monday, March 4, 1861, Lincoln spoke explicitly and gravely to the seven secessionist states, and to another eight that were considering joining them. He didn’t want a war, and was willing to give in to the slave owners to avoid it.

  “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists,” Lincoln said in his inaugural address. “I believe I have no lawful right to do so, and I have no inclination to do so.”

  But knowing, also, that if the Supreme Court had not ruled the way they had in Dred Scott v. Sandford, the drums of war probably wouldn’t be beating, Lincoln let his inner lawyer loose and said right out loud:

  [T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

  Although he’d sugar-coated the statement, there it was.

  Lincoln knew that the entire concept that the Supreme Court could strike down laws passed by Congress and signed by the president was not one of the powers given to it by the Constitution.

  The Constitution, in Section 2 of Article 3, which establishes the judiciary branch, gives Congress the power to define and limit what the Supreme Court can and can’t do.

  Here’s part of the exact language: �
��[T]he Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

  The Congress can control the terms and conditions under which the Supreme Court can rule? Yes, according to the Constitution.

  The framers of the Constitution wanted the greatest power to be closest to “We the People”—and that’s why the entire House of Representatives and a third of the Senate is up for election every two years. Congress is the body in our representative democratic republic that is closest to the people, so that’s where they wanted most of the power. That’s also why Congress is defined in Article 1 of the Constitution, establishing it as the first among equals.

  As Thomas Jefferson wrote in an 1820 letter to William Charles Jarvis, who thought Supreme Court justices should have the power to strike down laws: “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy… The Constitution has erected no such single tribunal… I know of no safe depository of the ultimate powers of the society, but the people themselves.”

  Nowhere in the Constitution does it say that the Supreme Court can strike down laws passed by Congress and signed by the president. Nowhere.

  And for the first fourteen years of our republic, the court, under Chief Justice John Jay (who coauthored The Federalist Papers with Hamilton and Madison, wrote New York State’s constitution, and was a president of the Continental Congress), Chief Justice John Rutledge (who helped write the Constitution and signed it), and Chief Justice Oliver Ellsworth (who helped write the Constitution and signed it), never even considered the idea.

  When he and James Madison were selling the Constitution in 1878, Alexander Hamilton wrote a newspaper article, now known as “Federalist No. 78,” stating:

  [T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever… It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two.

  The Court Takes the Power

  But in 1803, a hard-right-wing (Federalist) chief justice named John Marshall (who’d been only eleven years old when the Declaration of Independence was written and signed) ruled, in the case of Marbury v. Madison, that the Supreme Court could strike down laws as “unconstitutional.”

  Although the power of “judicial supremacy” over the other two branches had been discussed extensively in the early days of the republic and debated in the constitutional convention, it had been rejected and does not appear in the Constitution.

  But Marshall took it onto himself and his court, instantly transforming the Supreme Court from “the weakest of the three” to the absolute overlord tribunal.

  John Marshall had, in effect, turned himself into a king, along with his colleagues on the Supreme Court. No matter what Congress and the president—the other two branches of government—did, the Supreme Court could overturn them. A tiny group of unelected lawyers who, like kings of old, had jobs for life, now controlled the fate and destiny of the United States.

  President Thomas Jefferson went apoplectic.

  He wrote that if that decision wasn’t challenged by Congress: “[T]hen indeed is our Constitution a complete felo-de-se [a suicide pact]… The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please.”176

  Marshall and the court backed down, at least in appearance. For as long as Jefferson was alive, Marshall never again ruled a law unconstitutional. He never again said that a few unelected judges were the kings of America, with nobody else having the power to undo their decisions.

  Nonetheless, Jefferson saw the direction of the future. Several decades later (while Marshall was still the chief justice, as he remained for nine years after Jefferson died), Jefferson wrote: “The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution… I will say, that ‘against this every man should raise his voice,’ and, more, should uplift his arm.”

  Because, Jefferson said, “For judges to usurp the powers of the legislature is unconstitutional judicial tyranny… One single object… will entitle you to the endless gratitude of society; that of restraining judges from usurping legislation.”

  But as much as he tried, Jefferson was not able to stir up enough outrage in Congress to pass a law limiting the Supreme Court from continuing its new “judicial supremacy” doctrine of “judicial review” of laws in the context of the Constitution. Jefferson had actually won in the Marbury ruling, which somewhat deflated the outrage he might have been able to otherwise marshal from politicians in his Democratic Republican Party (today’s Democratic Party).

  And most politicians weren’t seeing the long view—they never, in their wildest dreams, imagined that the court would become the final hurdle over which every single law passed by Congress and signed by the president must leap.

  As mentioned, the Supreme Court was very wary about using judicial review in its first century. Mostly it just did what the Constitution says it should do—be the final court of appeals in legal disputes and criminal prosecutions, and in issues between the states. The buck has to stop somewhere, and that’s the Supreme Court.

  But striking down laws? That’s a power only kings have, and in the modern era even most kings in constitutional monarchies don’t have that power. In the United Kingdom, for example, not only does the king (or queen) not have the power to strike down laws, neither does the United Kingdom’s own supreme court. Ditto for the royal family and the supreme court of The Netherlands.

  Depose the Kings!

  The Supreme Court was beyond their constitutional power when they handed George W. Bush the victory in 2000 by ruling that if all the votes were counted in Florida, as that state’s supreme court had ordered, it would “cause irreparable harm to petitioner [George W. Bush].”

  They were beyond their constitutional power every single time they struck down a law passed by Congress and signed by the president over the years.

  And most important, the Supreme Court was way beyond their constitutional authority every single time they created out of whole cloth new legal doctrines, such as “separate but equal” in Plessy v. Ferguson, “privacy” in Roe v. Wade, or “corporations are people” in Citizens United v. Federal Election Commission.

  But in the fine tradition of John Marshall, today’s Supreme Court wants you to believe that they are the über-overlords of our nation. They can make George W. Bush president, without any appeal. They can make money into speech, they can turn corporations into people, and the rest of us have no say in it.

  And they’re wrong.

  It’s not what the Constitution says, and it’s not what most of our Founders said.

  Which raises the question: If the Supreme Court can’t decide what is and what isn’t constitutional, then what is its purpose? What’s it really supposed to be doing?

  The answer to that is laid out in the Constitution in plain black-and-white. It’s the first court where the nation goes for cases involving disputes about treaties, ambassadors, controversies between two or more states, between a state and citizen of another state, between citizens of different states, and between our country and foreign states. Read Article 3, Section 2 of the Constitution—it’s all there.

  Not a word in there about
“judicial supremacy” or “judicial review”—the supposed powers of the court to strike down (or write) laws by deciding what is and what isn’t constitutional.

  President Thomas Jefferson was pretty clear about that—as were most of the Founders—and the court didn’t start seriously deciding “constitutionality” until after all of them were dead. But back in the day, here’s what Jefferson had to say:

  The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves… When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.177

  Their elective capacity? That’s a fancy presidential-founder way of saying that the people can toss out on their butts any member of Congress or any president who behaves in a way that’s unconstitutional. The ultimate remedy is with the people—it’s the ballot box. If we don’t like the laws being passed, then we elect new legislators and a new president. It’s pretty simple.

  But without the Supreme Court, some say, we never would have had Brown v. Board of Education in 1954, which ended apartheid in America, or Roe v. Wade, which ended restrictions on abortion in 1973.

  Maybe.

  Brown v. Board was mostly the Supreme Court reversing itself from its own 1886 Plessy v. Ferguson decision, which is what established legal apartheid in America. And if the Supreme Court hadn’t decided Roe v. Wade—remember, the birth control pill had just been invented and brought to market thirteen years earlier and the women’s movement in 1973 was in full bloom—then it would have been just a matter of a few years before Congress took care of it.