IN PROTECTING DEMOCRACY against the attacks on equality and even voting by Republican-fascists on the state and federal level, most of all the Supreme Court, first the Rehnquist Court and now the neo-Taney Roberts Court, I think it's essential to point out the lies and shabbiness of the tradition of holding that corrupt Supreme Court up as a sacred institution.
I made an accusation yesterday that the Court has repeatedly, from early in its history practiced the most excruciating care to the protection of money and wealth (of its own members and its own class) while having an entirely different and far lower standard of care when it was the rights of poor people and those not favored by those with money and, so, power. In his excellent talk given at Montecello which I linked to a few days ago, the fine American historian Paul Finkelman points out that about the most celebrated and adulated member of that court in our history, John Marshall. Starting about here in the video, remembering that it's only my transcription and so any deficiencies and errors are mine and not his:
In every one of these cases he [John Marshall] finds a way to hold somebody in slavery. He hears a number of cases involving the African slave trade and in every one of - and by the way the African slave trade is illegal after 1808 And American participation in the trade is illegal after 1794. So he finds people who have been illegally involved in the African slave trade and he always finds a way to let them off.
In one case there is a boat that leaves either the port of New York or Perth Amboy which is in New Jersey, goes out into the Atlantic Ocean, picks up a bunch of illegally imported slaves in the middle of the Ocean and brings them to Louisiana and tries to sell them in New Orleans. Marshall rules that the conviction is to be overturned because the prosecuting attorney said that he left either New York or Perth Amboy and the prosecuting attorney doesn't know where he left and therefore we have to throw the case out. Never mind that the boat arrives in New Orleans with obviously freshly imported African slaves in clear violation of the law. Any judge, particularly a judge as smart as John Marshall could have figured out how to uphold this conviction. He doesn't.
[The] final slave case I want to mention is the case called The Antelope becaues The Antelope is the big John Marshall African slave trade case. And in The Antelope John Marshall says things that make his biographers happy because he says that slavery is a bad. He even says that slavery violates natural law. But then he goes on to say that natural law has no place in American Constitutional law and you cannot apply natural law to American Constitutional law. This is, in fact, a direct slap in the face of his closest colleague on the court, Joseph Story who had said it in the case I mentioned way back in the beginning of this talk [he's talking about a circuit court decision that Story handed down, not a Supreme Court case] where Story said slavery violates natural law.
So, here's what's interesting. When I taught Con-Law in law schools for 20 years, I would teach Fletcher vs. Peck and Dartmouth College vs. Woodward, and Ogden vs. Sanders, and in all of these Marshall makes natural law arguments. In Ogden vs. Sanders [Marshall] writes one of his six dissents, he is dissenting from a law, a case upholding New York's bankruptcy law. He hates bankruptcy laws because people who owe you money don't have to pay you if they are allowed to be bankrupt. And Marshall has a significant amount of money that is being lent out and so he doesn't like debtors, he likes people who hold debt. Like himself. And so he dissents in this case and he says that a bankruptcy law is a violation of natural law and, therefore, it should be struck down.
So, when it comes to slavery, natural law doesn't apply but when it comes to money it does.
Remember that as the Roberts Court disposes of the most basic rights of Black People, People of Color, Women, etc. the right of us all to a livable, sustainable environment, especially as those come up against profits of billionaires, millionaires and giant corporations. Remember it as they summarily deny hearings to People on death row or as they dispose of their lives citing things like paperwork that didn't get in under the deadline or the right not to be put to death, the last minutes of someones' life taken by the state being in mute, paralyzed agony. Ask how depraved someone has to be as a Clarence Thomas or a Amy Coney Barrett as they do it to People like them who aren't "people like us".
Also remember that having given itself the power to overturn duly enacted legislation of the democratically elected House, the imperfectly elected Senate and the President, the unelected and unanswerable Supreme Court has done other things in its self-expanded powers. One you can contrast with its typical refusal to do justice to mere poor people, to Black People, to members of beleaguered minority groups, to Women is its creation of "corporate personhood" "persons" for whom the courts have often had a far higher standard of care and concern for their "rights" than they have for actual People. And in another history of Supreme Court outrages that could be written on at length, that status was the invention of sleazy Gilded Age corporate lawyers and Supreme Court clerks, some say based on a brazen forgery by one of the sleazy lawyers that the learned "justices" clearly liked enough to not bother checking to see if it was authentic.
Conkling argued to the Supreme Court in San Mateo County v. Southern Pacific Rail Road that the 14th Amendment is not limited to natural persons. In 1882, he produced a journal that seemed to show that the Joint Congressional Committee that drafted the amendment vacillated between using “citizen” and “person” and the drafters chose person specifically to cover corporations. According to historian Howard Jay Graham, “[t]his part of Conkling’s argument was a deliberate, brazen forgery.”
As the article linked to shows, some of the less dishonest, perhaps even wiser members of the Court have objected to its use by the Supreme Court "justices" to distort the 14th Amendment, one designed to make People able to equally enjoy their rights into a weapon against mere human beings, those without money and, so, power.
Some Supreme Court Justices objected to the Santa Clara approach. Dissenting in Wheeling Steel Corp. in 1949 Justice William O. Douglas and Justice Hugo Black noted that the corporate personhood issue was not such an open and shut case: “[In Santa Clara] [t]here was no history, logic, or reason given to support that view. … [T]he purpose of the [14th] Amendment was to protect human rights-primarily the rights of a race which had just won its freedom.” Justices Douglas and Black thought the question of corporate personhood should be decided by the people, not the Supreme Court. But they could not convince their fellow Justices.
And once that evil was released, mixed with ACLU style "free speech-free press" blather (their amicus briefs all, I believe, sided with the "corporate persons") the results opened up electoral democracy to, not only domestic billionaire and millionaire corruption, but to the likes of Putin and other foreign dictator-gangsters through dark money. The results are the most criminal and corrupt presidency in our history enabled by the worst enabling of the thoroughly corrupt Republican-fascist Congress. Lest anyone forget the Mitch McConnell Senate* which blocked the elected president Obama from replacing a Supreme Court member and the solidifying of Republican-fascism on the Court.
It was such an obvious danger that one of their own, the partisan, voter intimidating William Rehnquist could see it was dead dangerous.
In the 1970s, Santa Clara was used to justify granting corporations the First Amendment right to spend unlimited corporate funds on ballot initiatives in a case called Bellotti. The Court relied on Santa Clara’s reading when it stated that “[i]t has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment.” Justice Rehnquist, in his dissent, questioned the wisdom of extending corporations political rights: “those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” Again Rehnquist could not convince his brethren.
In Citizens United, when the Supreme Court held that political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation, ” they cited Bellotti. Thus it’s only a hop, skip and a jump from Santa Clara to Citizens United.
* Continuing the program of corruption that got Trump impeached the first time, Mitch McConnell and his Republican-fascist colleagues are threatening to use their power in the Senate to hold up vitally needed aid for Ukraine even as McConnell's patron, Putin is attacking it. Lest anyone forget, a Kremlin connected oligarch funneled money into Kentucky to prop up McConnell. I doubt he's bothered if anyone wonders if this might be the quo for that quid. The Supreme Court has opened us up to not a new Gilded Age but a Platinum age of corruption. And they did it with "rights" talk through lying about one of the best intentioned of all of the Amendments to the Constitution.
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