AS I'VE MENTIONED HERE BEFORE, one of the worst things the Supreme Court ever did in its long and sordid history, apart from declaring that Black People were not covered by the Constitution and that they, in effect, had no rights that white people were bound to respect was to declare that corporations are "persons."* That wasn't something that was first said in a ruling by the Supreme Court "justices" themselves but was inserted into a footnote by a Court clerk who later went on to have a career as a corporate lawyer. That ruling, of course, totally distorts the meaning of "rights" because it allows for a whole long series of rulings favoring corporations over obvious and necessary rights of People, workers and others.
That is something that was rather less explicitly but more naively and stupidly inserted into the Constitution by the First Amendment and, I'd say, the Second Amendment, though not usefully distinguished as such. The First Amendment "gives rights" to "the press," it grants "freedom" to "the press". A press is no more a person than a corporation or "the press" as a corporation, it is a human made thing, it cannot have rights. Rights inhere only to living beings, only People can be "persons." The license the Warren Court so naively and stupidly gave to the New York Times to publish lies with impunity, something which has been an intrinsic and basic fact in our fall from the high point of American democracy, the adoption of the Civil Rights and Voting Rights and other things that made the United States a potentially egalitarian democracy for the first time in our history to today when we are in real and present danger of losing even the shell of democracy that was set up under the Constitution. When you put that together with the more bizarre and complex manipulations of Republican-fascists on the Court and off of the disastrous language of the Second Amendment, in which a "right" to bear arms, explicitly as part of a "well regulated" militia was made into a personal right to maintain automatic weapons of a kind that the naive amateurs of the First Congress could not imagine anymore than they could modern printing presses, radio, TV, the internet when they so stupidly adopted their trite and short slogans in the First Amendment. That those lied to by the media, those whose worst inclinations are encouraged by cabloid TV, hate-talk radio, the neo-fascist, neo-Nazi media, in the United States hold such enormous fire-power given to it by the Rehnquist and Robert's Courts that if their eagerly anticipated civil war happens, it will be hard for any "well regulated militia" to suppress it. Indeed, when a lone gunman is murdering school students now, it is a suicide mission for a well-trained, well-regulated police team to stop them.
The objection to what I've been writing here for the last few posts was interestingly reflected in an article on Pope Francis' response to some insincerely and dishonestly posed to him by five far-right, neo-integralist Cardinals to try to steer the sessions of the Synod that is taking place right now more to their liking. Or to embarrass Pope Francis if they failed to. I'll give you this from the article on it in the National Catholic Reporter:
There is something else going on here. The dubious cardinals seem to forget, and Francis reminds them, that the Second Vatican Council's Dogmatic Constitution on Divine Revelation, Dei Verbum, did not suggest revelation exists to achieve some degree of self-satisfaction among the doctors of the law. Revelation is given "for the salvation of all nations" (Dei Verbum, Paragraph 7). The dubious cardinals think conversion happens before one gets to the church door, once and for all. Francis, a pastor, knows that conversion never ends, that those who have crossed the threshold and those far from the doors of the church, are all in need of conversion. Christ died once and for all. Our conversion to the divine will is ongoing.
What is most striking about the responses is the difference in approach from that found in the original dubia. "The complex issues that the 'Dubia Cardinals' raise can only be answered with the pastoral type of response that Pope Francis gave," Sacred Heart University professor Michelle Loris told me in an email. "His method of response resonates with the way Jesus often responded to those who would try to trick and trap him — challenging his accusers to go more deeply into their heart and faith."
Boston College professor Cathleen Kaveny had a different take on pope's responses to the dubia. She suggested that rather than giving a different answer to the issue of same-sex relationships, Pope Francis is changing the question. Kaveny drew an analogy from the mid-20th century debate about religious liberty. "The traditional question was, 'How can we endorse religious liberty for false religions, since the Church has always taught that error has no rights?' But Jesuit Fr. John Courtney Murray and others framed the question differently," Kaveny told me. "Those advocating for change said, 'We are not endorsing false religions. We are saying that rights are inherent in persons not propositions, so the proper question is what we need to do to respect the dignity of the human person as a being who has the duty to search for the truth.' "
"I think Pope Francis is saying: 'The proper question is not whether we are endorsing sexual activity between persons of the same sex. It is what do we need to do to respect the dignity of LGBTQ persons, many of whom seek to live lives of love and responsibility in and through their partnerships?' " Kaveny is going a step further than the pope did, but her framing could help the debate get past the often "my way or the highway" approach to neuralgic issues our fraught, culture war zeitgeist makes most prominent.
Of course it is the short statement of truth I'm focused on here, "rights are inherent in persons not propositions, so the proper question is what we need to do to respect the dignity of the human person as a being who has the duty to search for the truth." This reminds me of another quote that I've also cited here a number of times, from the great radio engineer Edwin Armstrong, weary from his long and futile struggles to obtain his right to the ownership of his own inventions as opposed to the stealing of them by Sarnoff and his corporation, RCA (he proved that Sarnoff couldn't begin to understand the mathematics and science behind his inventions as the courts gave ownership of them to the multi-millionaire) He was certainly talking about lawyers and courts when he told a meeting of his fellow engineers, "Men like to substitute words for reality and then argue about the words."
The Law isn't so much an ass as it is an a-hole, a thing manipulated by lawyers and judges and "justices" to make it do what they prefer, at least in many if not most cases and "the law" allows theme to do that, especially in our system in which the Court and the laws organizing the judiciary allow them to get away with. I do think if we studied the cases from before Louis Boudin and after he wrote, in which the Supreme Court overturned duly adopted laws on both the state and federal levels and previous Supreme Court rulings we would find a distinct patter of them favoring the rich, the powerful, the economically, racially, male-gendered, ethnically white or not Black or Native American or Latino, and straight AND THE WEALTHY CORPORATIONS over and over again. As the brilliant recent work of Paul Finkleman and his colleagues are showing, as Louis Boudin showed in is discussion of Court cases, that started at least with the many rulings against slaves AND FREE BLACK PEOPLE ABDUCTED INTO SLAVERY written by that most august of them all, John Marshall. It was done by the "anti-slavery" "justice" Joseph Story in a ruling which Paul Finkleman rightly said if it were not for the Dred Scott decision it would be THE most outrageous of the slave-power favoring rulings by the putrid Supreme Court. Only he is more temperate in his language than I am, he is a lawyer and a law scholar as well as a lawyer, I am merely what I am. Among the rights that I hold to be mine by divine endowment is to truthfully tell the truth about those who we are gulled, bribed and coerced into giving respect that I certainly lost as soon as I found out what they really did and really said, they only having a right to me telling the truth about them and not bearing false witness. If Marshall, Story, Taney, Roberts, Alito, Thomas, and the rest of the Republican-fascist thugs who dominate the court and have for years now did the same they'd never have earned my regard of them that seems to scare some so much.
What the hell does everyone worry about the danger in the possibility of changing the Court to make it responsible for the evil it does amount to? That a rational attempt to reform it will be worse than the course it's on now? It's plenty evil now and through its entire history to make changing it now necessary to maintain even a vestige of equal justice and egalitarian democracy. They're getting hundreds and thousands of American children murdered in their own schools and neighborhoods now. They are arming the Trump criminal gangsters and the nut cases with assault weapons. They are enabling the indigenous form of American fascism, white supremacy and the spreading of white supremacist and other fascist and Nazi propaganda to those who are made by TV and movies and the internet stupid enough and morally debased enough to adopt AND ACT ON IT. They have corrupted our elections with their own "more speech" through Buckley V. Valeo, Citizens United and other "free speech" rulings. IN THE GREATEST TRANSFER OF "RIGHTS" IN THE HISTORY OF THE DISHONEST LEGALISTIC AND JUDICIAL BLATHER ABOUT RIGHTS THEY HAVE MADE MONEY "SPEECH" WHICH MEANS A BILLIONAIRE HAS BILLIONS OF TIMES MORE "SPEECH" THAN A POOR OR DESTITUTE PERSON. And if you think all the pro-bono lawyers and judges and "justices" which the legal industry will generate in its entire existence will make up that difference, I've got a hideous building designed and erected under that "puzzle-wit" Taft to sell you.
Rights inhere only to natural living beings, they don't inhere to corporations or organizations, no, not even religions as that observation in the passage above notes. What are "religions" except for a long series of propositions and a corporate construction for embodying them in an organization? None of them has gained universal recognition as a divine creation, for any denomination which has claimed that for itself, and the Catholic Church is one of the foremost in that group, there are many who make a good case that that claim is bogus. I know a lot of those who are skeptical of that about Catholicism are cradle Catholics, especially those who have studied the history of Catholicism and have taken an honestly critical regard to those claims. They were what was at the heart of John Paul II's and Benedict XVIs attacks on the eminent Catholic theologian Hans Kung.
Though I have not had the time to follow up and look into what John Courtney Murray and those others mentioned above were responding to and exactly what they said but I suspect it was exactly the context of the American Catholic experience of life in a diverse and aspiring democracy as opposed to the long tradition and experience of Europe. It is interesting to note what might seem to be a nuance of noting that ideas don't have rights, that rights inhere to living beings is not a nuance, it is an absolutely basic aspect of the theory that something called "rights" actually is real instead of merely a matter of human invention. I've been over and over the consequences of asserting that rights are merely something that is the creation of a societal or group or, yes, corporate agreement, a mere convention for, among others, the many atheists who I've argued that with. In a country where a majority are religious they would be within their rights to declare that atheism had no right, an extension of the late medieval Catholic claim that "error has no rights" which was necessarily overturned to assert there was a freedom of belief for People. I don't think that's in any way a difficult idea to navigate through.
The naive and stupid and widely held idea that "The Constitution gives us a right to . . . " is ridiculous. The Constitution didn't create any right and we are stupid if we mistake what it did create as constituting "rights". The Constitution explicitly "gave rights" to those who held People in slavery to violate rights of Black People that "it gave" those who enslaved them. If that is your view of rights and the United States Constitution, you are inevitably going to have to maintain that Taney and his concurring "justices" who issued the Dred Scott decision were right, that the Constitution applied to those Black People who had been held in slavery, and through Supreme Court precedents from Marshall, Storey and others, to Black People abducted into slavery not as a guarantor of rights but as the administration document of a slave based Republic. Without a superior source of rights than the one that conventional Constitutional lore recognizes, the stupid language about not recognizing religion, will admit to, you are powerless to demand or even petition for rights not explicitly mentioned in that document. It makes rights and their possession subject to the whim of a majority or even a majority of those who cast votes on their mere opinion.
I have pointed out that under the legalistic thinking of those who criticized the Nuremberg Trials on the basis that what the Nazi mass murderers and war criminals did was legal under the laws of Nazi Germany and the places they invaded and held such as William Howard Taft's son, Robert Taft, someone the Harvard Trained John Kennedy held up as a "profile in courage," that is if it wasn't Ted Sorensen who wrote that deeply flawed book, as the somewhat supportable but denied rumor had it. I mention that only to point out that lying about Democrats has never much mattered as a question of "journalistic ethics" anymore than lawyers lying on behalf of clients has troubled the professional and annoying insouciant self-permission of lawyers to promote crimes and enormous harm on behalf of those who they get paid to do that for. Lawyers for the worst among us getting judges to let their clients do evil doesn't seem to much bother the profession. Have I mentioned that my opinion of the legal profession isn't what it once was?
I think it is an extremely dangerous thing to hold that rights belong to anyone but living beings, certainly to People and not to things invented by People, corporations, organizations, religions, ideologies, ideas, certainly among the most dangerous of those in the current American contexts, media companies and, yes, even "presses." I think the current lore, habits and holdings of American Constitutional law are extremely dangerous because the profession of lawyers is to always find ways through, around and over adopted laws and if not that to come up with words that twist them out of their explicit language and their supporting legislative record as has been done so disastrously with the First, Second and Fourteenth Amendments to the Constitution.
What we need is there to be some basic, easily expressed, CLEARLY EXPRESSED, definition of what rights are and what they are not and I don't think that we could possibly do that without some major amendments to some of the most idolatrously worshiped parts of the United States Constitution. Removing the obvious Court imposed atrocity that there is a right to lie - when a lie can certainly be demonstrated to be a lie - and that while individuals should, at times, be given some leeway in ignorantly repeating or even initiating a lie, there is no such thing as a corporation, a newspaper, a magazine, hate-talk radio, a TV or cabloid source or an internet company to spread those lies. We have seen the nearest achievement of American egalitarian democracy destroyed by media carried lies in the past fifty-nine years, you can measure the progress of that regime of lies from before till after the Sullivan Decision, from Nixon losing in 1960 to him winning in 1968, the first presidential election after that decision, through Reagan's previously most criminal administration, that of Bush I, that of the Supreme Court crowning of Bush II to Trump. As I mentioned there were other "free speech-press" rulings all during that which have made things steadily worse, Buckley v. Valeo, Citizens United, etc. And it's not stopping. If you think Roberts, Alito, Thomas, Gorsuch, Kavanaugh and Coney-Barrett are not aware of the role that lies in the media have played in not only Republican-fascist success but also in their own placement in the place of supreme power in the American government, you are wrong. They're as aware of that as they are the connection between their Second Amendment decisions and the arming of the Republican-fascist Trump cult and the myriads of American children murdered as a direct result of those decisions. They are as bad as the worst Presidents and members of Congress and far worse because they obviously and simply don't care. Under their conception of "rights" without moral responsibility, they're as easy with what they do as the worst figures in human history.
And I really do mean that.
* As a long line of abolitionists pointed out, even if that may have been the intention of some of the "founders" the ambient conditions in the States that adopted the Constitution proved that could not have ever been what was ratified by the States as a whole. In several of the states Black men had voting rights, in some slavery was being abolished even at the time around the adoption of the Constitution, many others did in the years after. The majority in the Dred Scott decision were simply lying to get the result they wanted and stupidly expected would "restore harmony" to the country. It is bound to happen whenever that "right" by the Supreme Court to nullify longstanding, duly adopted laws which were not, since, overturned by the representatives of The People through something that might approximate a legitimate vote by The People. The criticism of that usurpation by the Court first under Marshall but greatly and importantly expanded by Taney et al in that officially worst decision, by some of the most deified figures in our history, Jefferson, Lincoln, many of the then famous lawyers such as Thomas Hart Benton should be fully exposed now as the corruption of the Court is at another and ever worsening reality.
NOTE: RMJ has made a valid point about something I wrote, I don't want anyone to think this is in answer to what he said.
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