News Intelligence Analysis
A “Lone Pamphleteer” Answers the Supreme Court
Or How the Court Took a Perilous Journey Into Wonderland, Through the Looking Glass, and Abruptly into The Professor’s Lecture!
By Katherine Yurica
March 21, 2010
[Updated correction March
23, 2010]
than just the individual on a soapbox
and the lonely pamphleteer.
January 21, 2010
Citizens United v. Federal Election Commission
The likelihood that the Supreme Court’s majority committed judicial fraud [1] in order to change the laws affecting their favorite corporate constituency in Citizens United v. Federal Election Commission [2] is probably very high. The alternative to fraud, however, is the case for a diagnosis inspired by Lewis Carroll, more popularly known as the Alice in Wonderland-Through the Looking Glass-Syndrome, which I understand is a recently discovered condition in the United States, apparently reaching epidemic proportions as it afflicts millions of helpless victims. Even though there is no known cure, I chose to write about the syndrome, simply because it’s so much more entertaining than the alternative.
There is obviously nothing like watching an institution going
slowly mad before your eyes, especially when you have always
been a “friend of the court.” One feels so helpless,
yet trapped by the foreknowledge of the terrible havoc unsane
ideas ultimately create—especially since they are so contagious.
Struggling intensely against the inevitable, yet desiring to
help, wanting so much to pick up the broken pieces of thoughts
gone awry and paste them back together into a semblance of straight,
truthful and sublime logic, yet inwardly knowing all the while
that the patching and gluing process leads to the brink of an
abyss that cannot be crossed. There is no bridge from here to
the other side that one can safely traverse. We know that it
is inevitable that cultists will continue to hang on—they
will drink up their cultism, as if it were a good wine, preferring
to maintain their devotion to the doctrines and practices of
minds gone astray. They have undergone a conversion experience,
and once converted—dare not return to their former selves.
So it is that a few among us go forward with heavy hearts, warning
others as Lewis Carroll did years ago:
The jaws that bite, the claws that catch!
Beware the Jubjub bird, and shun
The frumious Bandersnatch!” [3]
The “Jabberwock” indeed roamed among us, as did the “frumious Bandersnatch,” and the “Jubjub bird.” In fact, these three were so powerful that they were appointed to sit on the Supreme Court of the United States. (How they got there is really another story that can’t be told in this essay.) However, recently four of the nine justices found themselves constituting the minority, which of course is necessarily true since it mathematically follows. Thus these four were not only deprived of power but even worse, were on the losing side in what I shall call, “The Legal Analysis Confrontation of the Century.” More to the point, they had no weapons to turn the situation around—there wasn’t a sword among them, (let alone the famous “vorpal blade” that slew the Jabberwock in Carroll’s unforgettable poem.) Nonetheless, when the battle was truly engaged, it is said that a miracle happened and the “vorpal” sword fell into the venerable hands of Justice Stevens, and by all accounts, the Jabberwock was slain! Of course, we don’t know that for sure, but nevertheless it is widely believed to be true.
Justice Stevens obviously emerged from the fray as a great hero, who remains dedicated to the institution he has served since 1975, which is really a very long while, considering that he was born in 1920! In the meantime, the case, Citizens United v. Federal Election Commission, will undoubtedly go down in the history books, with details like when it was argued (on March 24, 2009) and when it was reargued (September 9, 2009), and when it was decided (on January 21, 2010).
While it is true that Justice Stevens wrote a brilliant ninety-page dissenting opinion, which was joined by Justice Ginsburg, Justice Breyer and Justice Sotomayor, of which, one can only say, by every method of measurement, the four dissenting justices out thought, out fought and out analyzed the five-member majority of the court, who only managed a weak and thin fifty-seven paged opinion, (which, incidentally, was delivered by Justice Kennedy, and joined by Chief Justice Roberts, Justice Scalia, Justice Alito and Justice Thomas who joined in all but Part IV, while the four dissenting justices, in fact, joined Part IV.) (Sometimes it’s best to get these details over with as quickly as possible!)
My recitation above does not include Justice Scalia’s extremely skinny, nine-page rebuttal to Justice Stevens’ ninety-page dissenting opinion, which, as I will demonstrate below, constitutes the heart and soul of the well-known Lewis Carroll “Humpty-Dumpty-Reasoning-Ploy.” That is, to be precise, we shall examine the art of convincing or more properly, the art of winning through the technique of subtly changing the meaning of words or the subject of the argument to something else. Another name for it is the old “bait and switch routine,” or perhaps an even stronger analogy is the shell game, which forces the reader to try to detect under which word, or if you will, which “shell-word” the pea (or the controlling idea) is hidden. It is not that I am calling Justice Scalia a “thimble rigger.” By no means, it’s that I find him a master of diversionary reasoning, which of course is fair in all legal encounters as it is in war.
Nor does the recitation above include Chief Justice Roberts’ brilliantly misleading and thinly drawn, fourteen-page human identity crisis. (One thinks that it must be something he ate.) In any case, we can forgive his youthful zeal, but not his flunky passion for artificial persons. (The thought of coupling with one is somewhat revolting, as I shall discuss in more detail below.)
The story does not end with this introduction, for the decision has grown its own wings and has begun to soar to unimaginable heights. It is for this reason that I have taken certain liberties with the precise and historic words of Lewis Carroll and William Shakespeare. (My readers will notice that when I change the original—I usually, but not always, place the new material in italics.) So in order to introduce the reader, whether layman or lawyer who might still be unfamiliar with the ways and means of the highest United States Court, I have quoted extensively from Lewis Carroll. For instance—and as a way to demonstrate how important these illustrations are, notice how Carroll makes us feel at home in the Supreme Court, almost immediately:
“Alice had never been in a court of justice before, and especially not in the Supreme Court, but she had read about it in books, and she was quite pleased to find that she knew the name of nearly everything there. ‘Those nine are the justices,’ she said to herself, ‘because of their long black robes. And they’re sitting on a dais, which of course makes them higher than everyone else.’”
With these most important observations wittingly presented, we are now almost ready to tackle the meat of the legal decision, although it will be necessary to chew each bite carefully and fully, inasmuch as the substance of the meat can become tougher while being bandied about! But first, perhaps we should examine the quagmires and the pond of despond the Majority members fell into.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The Majority faced a dilemma when they reread the First Amendment for the first time preparatory to reviewing the Citizens United case. They discovered much to their chagrin that the word “speech” necessarily referred to humans, whereas the word “press” necessarily referred to a particular type of enterprise. The problem was how to get around the normal understanding of the First Amendment. (Incidentally, even casual observers, I am sure, would agree that the Majority’s rereading and restudying of the First Amendment was both a natural as well as a necessary preparatory step, and I should add, that it was a most thoughtful step prior to writing the decision that they anticipated making.)
After many hours of back and forth discussion between themselves, the Majority obviously came to realize they would have to change the definition of the phrase “freedom of speech” to include the phrase “freedom of the press,” because blurring the two, obfuscated the original meaning to such a degree that it would then support their new judicial doctrine.
Chief Justice Roberts’ leadership on the issue must not be underestimated, for he not only grasped the significance of blending the two freedoms together—that is the freedom of speech with the freedom of the press, but he also cleverly turned, what many would call “a serious error,” into a powerful justification. Notwithstanding the freedom of the press clause in the First Amendment, the Chief Justice wrote grandly that if the government’s position were to be accepted:
“It would empower the government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as the major ones are.”
Of course the only problem with the statement is its imaginary foundation, its homespun fabrication, and its blatant contradiction to the First Amendment. (I’m afraid that it is an example of the Alice in Wonderland-Through the Looking Glass-Syndrome that I mentioned earlier.) Nevertheless, the Majority found it extremely convincing, but someone must have insisted that the Chief Justice put it in a separate concurring opinion—just to be on the safe side, you understand.
However, the very idea that the freedom of the press as well as the freedom of speech, were under severe threat became such a strong rallying point that the Majority was forced to accept its own logic. That is how the Court unintentionally changed the original intent of the framers. But it couldn’t be helped! It was an accident.
The Majority must have believed that the great host of Americans would never catch on to what they had done. On the other hand, the situation forced the Majority’s collective imagination to go to work and create new and natural attributes for corporations. It must have started out as merely an intellectual exercise in order to get their brain cells fired up. So though this is an entirely unproven theoretical construct on my part, somewhere along in the process of trying to understand the makeup of a truly typical corporation, the Majority must have found itself imagining and projecting biological functions into the corporate entity in association with its employees, staff, managers, stockholders and directors.
For example, the question of how human a corporate entity can be in association with others raises the issue of how far the court should push toward the corporation’s need to eat, sleep, defecate, and to multiply itself by giving birth to offspring (of course in association with others). In this way, one imagines, the Majority began the process of creating a collective mental picture of how a corporation would look as a biological creature with such things as eyes, ears, noses, legs, feet, wings, horns (for weapons) hands and brains and so on. So creative was this mental exercise’s potential, they surely must have envisioned the existence of a beast with seven or more heads (because as everyone knows a corporation has to accommodate a board of directors, which of course meant multiple heads and mouths.)
Now Catholics really don’t pay much attention to the Book of Revelation, but Pentecostals and all Baptists do. I mention this only to show that the Majority in this case, all happen to be Catholics, and have therefore probably never studied prophecy in the Bible. So keep in mind, they most likely had no idea that they were creating, or more appropriately, endowing the “Beast” of Revelation, whose identity in the Bible is “666,” [4] with hitherto undreamed of powers, along with the “Harlot,” who is generally believed to be “apostate Christendom.” (Now disguised as respectable but extremely agitated Republicans.)
According to C. I. Scofield in The New Scofield Reference Bible, the “Harlot” manages to couple not only with governmental rulers, but she also, in the biblical terminology, “fornicates,” with the merchant entities of the earth, whose passion for her knows no bounds. However, in the end, the wealthy merchant corporations are ruined by the Harlot’s sudden demise, which naturally causes them to weep, when in just “one hour,” the greatest financial collapse in history occurs.[5]
Therefore, in the light of all this biblical prophecy, (which I am certain the Supreme Court does not understand), it is only reasonable that the Majority in this case should be held forever blameless for whatever dire future events that almost certainly will follow as a result of their ignorant but sincerely made changes in the First Amendment.
Significantly, the Majority’s task had been to merely find a means to grant corporate entities, regardless of their outward beast-like appearances, the right to free speech. So they began writing various opinions and that’s how Chief Justice Roberts’ (hereinafter “Chief”) found himself in a pickle!
Chief Roberts’ predicament and indeed his human identity crisis came about as he tried to equate 25 million corporations or what was called “artificial persons” with 305 million actual and indivisible humans living in America. (Keep in mind that American law endows artificial persons with the capacity of “perpetual succession,” as Chief Justice John Marshall phrased it in 1819, explaining that “perpetual succession” means, “immortality.” However, these artificial persons “are born and created by the authority of the laws of a state,” and as we all know, are commonly known as “corporations.”) [6]
In the end Chief Roberts was forced to make 25 million equal in substance to 305 million. He did it by cleverly dividing and subtracting them in a most ingenious method. Boldly he warned that if the Court adopted the Minority’s position, freedom of speech “could be confined to” just the 305 million people living in America, which, he said, would “subvert the vibrant public discourse that is at the foundation of our democracy.”
Thus in Chief Roberts’ mind, artificial persons must trump natural persons in importance because as he phrased it, “The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.” [7] That’s how he succeeded in proving that 305 million people could be reduced in importance to just two individuals: one “on a soapbox” and the other a “lonely pamphleteer,” and everybody knows that two human beings are far less important than 25 million corporations!
In some respects, Justice Antonin Scalia is my favorite Justice. He is by far the cleverest of the lot, and I think he is a particularly fine and striking figure, who often over estimates his importance and believability, not unlike Lewis Carroll’s character, Humpty Dumpty. So it is not surprising that I have written about Justice Scalia several times.[8] The thing is that one must watch him carefully when he speaks and when he writes and one must also listen very carefully, for he is a master of words in all its forms. To understand my point, take this exchange between Alice and Humpty Dumpty, who must of course never be mistaken for a Justice of the Supreme Court:
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.” [9] (Emphasis is in the text.)
Notwithstanding my natural desire to focus on all things absurd, since we will be examining the ancient art of changing the meaning of words, perhaps we should verify what is meant by the word, “speech,” since it is extremely pertinent to our discussion. According to Webster’s Third New International Dictionary, “speech” as a noun, means:
“The act of speaking: communication or expression of thoughts in spoken words” and “the faculty of uttering articulate sounds or words: the faculty of expressing thoughts by words or articulate sounds: the power of speaking.”
Now if we juxtapose the above definition next to the pertinent First Amendment clause, which is: “Congress shall make no law…abridging the freedom of speech…” we come quickly to the conclusion that the First Amendment presupposes that “speech” is generated by a speaker who is necessarily a human being and not, for example, a parrot, or an artificial person who does not possess the power to think or speak.
Alas, the Supreme Court Majority differs strongly with that conclusion. Like Humpty Dumpty, they found it worthwhile to “make a word do a lot of work,” and of course, like Humpty Dumpty, they said: “When we make a word do a lot of work like that, we always pay it extra.” So it was the Majority essentially decided, “The word ‘speech’ has nothing to do with a speaker.”
As Justice Scalia politely phrased it:
“The Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker.” (Emphasis mine.)
But even Justice Scalia found himself limiting speech to only those who are able to speak—thus omitting all those people and corporations who are mute! This, I am quite sure, was an unintended error on his part.
Even Harvard Law School Professor, Lawrence Lessig, (who once clerked for Justice Scalia), tried to salvage the situation:
“Thus, the government is blocked by the First Amendment from constraining the free speech of any entity, whether that entity is a corporation or a dolphin.”[10]
Unfortunately, the good professor may well have assumed that like the dolphin, a corporation entity has nerve and brain centers as well as biological parts that can make sounds and therefore (it is assumed), must be able to speak!
If, however, the entity happens to be a legal but mute corporation—it obviously cannot make a political speech. However, as the Majority implied, one’s inability to speak doesn’t matter—what’s important is that Congress cannot abridge the freedom of a mute entity to make a speech! Of course Congress can do the opposite—it can assist a mute entity to speak and apparently that would be permissible, unless of course assisting is considered suppression, which was, unfortunately the holding in this case!
Like Alice in Wonderland, the story gets “curiouser and curiouser!”
It appears the Majority has just fallen for a pretty phrase—and has failed in its obligation to follow the intent of the Constitution.
And what’s more, under the Majority’s definition, in addition to the fact that the entity need not have the power to speak, the entity need not be a U. S. citizen (since corporations are not citizens.)
How is it even imaginable that five members of the Supreme Court would believe the founding fathers authorized freedom of speech for dolphins, whales, blue jays, screech owls and dogs plus all mute and fictional entities, none of which have the ability to make a speech, and oh yes, as well as the people who can speak? It’s got to be the Alice in Wonderland Syndrome! Nothing else could explain it!
But there is more: to make their interpretation of the First Amendment work, Justice Scalia’s concurring opinion and the Majority’s decision had to have been based upon another simple construct, that is, the Supreme Court had to tie a corporate entity’s inability to speak to a human being’s right of freedom of speech, and they had to erase any distinction between the two. It was accomplished by simply inserting a corporate entity’s presence within a fascinating phrase. Justice Scalia merely questioned why the freedom of speech did not include, “the freedom to speak in association with other individuals, including association in the corporate form.” (Emphasis mine.)
Knowing that the word “individual” refers to non-human entities as well as to human beings, [11] Justice Scalia cleverly joined a non-human corporate entity with a human being, granting equivalence to them both. But the bottom line is this: a corporation is a mute artificial person that exists only on paper. Contrary to Justice Scalia’s assertion, a human can only associate with another human. A person cannot, for example, associate with a glass of water, or a cup of tea. But if Justice Scalia’s meaning should prevail, then literally, cups of tea and cups of coffee could endorse a political candidate—of course in association with other individuals! What can one say, except perhaps this: “Humpty Dumpty’s time has surely come.”
It’s like comparing a Chevy Volt or a Toyota Prius with former President George W. Bush—they are each an example of an individual belonging to a broader class, but only one of them could be elected president and only one of them has the actual power to speak. Even under the First Amendment a car must remain just a car—and a human being is assumed to have faculties that non-humans do not possess.
Justice Scalia and the Majority simply tried to hide corporations’ physical limitations, but in so doing, they necessarily had to have been aware of the entity’s non-existent faculty of speech, else why did they work so hard to bury that fact with phrases such as “in association with others”? The first amendment does not grant artificial corporate entities the freedom and the right to do the very thing that corporations cannot do—that is to speak! (Unless of course, one convinces everyone because a Subaru has a horn that can be beeped by a driver, that fact creates an associative relationship, which therefore bestows the “freedom of speech” upon the car!)
But Justice Scalia seems to utilize the Dumpty principle twice within the same phrase, by asserting that the dissent, (meaning Justice Stevens’ dissenting opinion), “never shows why ‘the freedom of speech’ …did not include the freedom to speak in association with other individuals, including association in the corporate form.” (The emphasis is mine.) However, Justice Scalia certainly knows that the burden of proof was not on Justice Stevens to prove a negative; the burden was on the Majority to prove the affirmative, and this they failed to do. Evidence must always be affirmative. Negative evidence is a contradiction in terms—it is no evidence at all. [12] Thus, “no evidence” that the political speech of corporations was censored following the founding of the American nation does not prove corporate speech was not censored.
In any case, one can hardly imagine a corporate business running ads in papers in 1789 denouncing George Washington or demanding that King George be reinstated as America’s ruler without suffering injury to their sales by public outrage and boycotts. Corporate self-imposed censorship is the sensible recognition that business interests demand political neutrality.
“A Supreme Court Axiom is a thing that you accept without contradiction,” said the Professor. For instance, if I sat on the Court and I said, ‘Here we are!,’ that would be accepted without any contradiction…So it would be an Axiom. Or again, supposing the Court were to say, ‘Here we are not!’ that would be—”
“A fib!” cried Bruno.
“Oh, Bruno!” said Sylvie in a warning whisper. “Of course it would be an Axiom, if the Court said it!”
“It might be an Axledum,” Bruno said: “but it wouldn’t be true!”
Probably the next thing that I should point out as a most salient factor in the legal battle between the Supreme Court’s Majority and its Minority members, (as it played out in the Citizens United case), is the marvelous and intricate intellectual dance that was choreographed with such delicate twists and turns and leaps of reasoning beautifully executed by the Majority five against the four overwhelmed and sometimes bedraggled Minority who had never studied or learned legal ballet. It remains in fact a brilliant use of a fascinating technique pioneered by Lewis Carroll in Through the Looking Glass.
The “Majority,” (who are sometimes called, “The Handsome Five,” which is an affectionate nickname attributed by some to Rush Limbaugh), smoothly adopted the role of the White Knight while preferring not to make reference to the minority as “Alice,” especially since the real Alice could not keep herself from trembling at the overpowering force of will projected by the Majority, so she hid herself safely behind the protective Minority of the court, where she felt quite safe. What follows is a classical example of deeply embedded semantical questions during the encounter between the two sides, (which of course was first exposed by Lewis Carroll):
“You are upset with us,” Chief Justice Roberts, (hereinafter “Chief”), observed as he spoke for the Majority in an anxious tone to the Minority. “Let us sing a song to comfort you… The name of the song is called ‘The Framers Vision.’”
“Oh, that’s the name of the song, is it?” The Minority said, in unison, which of course meant they spoke as one, and all at the same time.
“No, you don’t understand,” the Chief said, looking a little vexed. “That’s what the name is called. The name really is ‘Original Intent.’”
“Then we ought to have said, “That’s what the song is called?” The Minority corrected itself.
“No, you oughtn’t: that’s quite another thing!” Said the Chief. “The song is called ‘Ways and Means’: but that’s only what it’s called, you know!”
“Well, what is the song, then?” asked the Minority, who was by this time completely puzzled.
“I was coming to that,” the Chief said. “The song really is ‘How the Majority Rules.’ And the tune’s our own invention.”[13]
And so it was that a pall fell upon the court and for a fortnight, scarcely a word was heard between the two sides. All nine justices and their law clerks and their clerk’s secretaries and the secretaries’ aids, and the aid’s aids were all searching through not only American but English case law to find justification for the decision, or as the case in point may reflect, for the dissent. However, whether it was by accident or design, the Majority did not find the key that unlocked the golden legal gates, (though the five constituting the Majority claimed they had). Intuitively satisfied that every legal stone had been looked under and that no one of significance would be able to prove them wrong, the Majority announced its decision to the world:
“The Government may not ban (or suppress) political speech based on the speaker’s corporate identity.”
Before we examine the most colossal error committed by any court in history, I would like to point out a few of the serious but perhaps more latent fibs, fantasies and delusions that Justice Stevens exposed in his brilliant ninety-page dissenting opinion.
1. The Majority’s decision holds that the government may not ban or suppress a corporation’s “political speech;” however, and most unfortunately for the Majority’s reputation, no one had banned or suppressed anyone’s political speech!
2. Notwithstanding the facts, the Majority simply invented a fictional case in order to satisfy its yearning to champion corporations’ political speech rights. As Justice Stevens put it: “The real issue in this case concerns how, not if, Citizens United, a wealthy nonprofit corporation that runs a political action committee, may finance its electioneering.”
3. Not content with inventing a fictional case limited to nonprofit corporations, the Majority decided to rewrite the law relating to campaign expenditures by for-profit corporations and unions as well as for non-profit corporations even though they knew fully well that Citizens United is a non-profit corporation and that it is not a union.
4. Then the Majority tried to misinform the world by climbing into a dark cave that led to the caverns of circular reasoning. There Justice Stevens hung his lantern high, warning: “The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its ‘identity’ as a corporation,” but as everyone else knows, repeating something doesn’t make it so!
5. Though the Majority recited its undying belief that corporate entities are identical to natural persons, Justice Stevens exposed that idea as a fallacy by saying, “The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.” (That’s how the vorpal sword made a serious and large dent in the Majority’s armor.)
6. Then Justice Stevens saw the danger of foreign entities interfering with American elections and his sword lit up as he asserted, “Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.”
7. And then Justice Stevens stood on the Majority’s weakened words, holding his sword with steady hand and pointed out something they overlooked entirely: “Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”
By all accounts the Majority’s opinion melted like butter on hot toast! Justice Stevens then sadly and profoundly warned that the Court’s ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.”
“Just look along the road, and tell us if you can see one or two artificial entities, said the Minority.
“We see nobody on the road,” said the Majority.
“We only wish we had such eyes,” the Minority remarked in a fretful tone. “To be able to see Nobody! And at that distance too! Why, it’s as much as we can do to see real people, by this light!”
Because words and sentences sometimes slip through our minds all too easily, we ought to look once more at the Supreme Court’s holding:
“The Government may not ban (or suppress) political speech based on the speaker’s corporate identity.”
Notice that there is a serious error in the statement, actually a colossal error! To put it as simply as possible, (as I previously pointed out), a corporation cannot speak—it is speechless because a corporation has no tongue. It is mute. It was born that way. And it can’t be helped.
It’s also invisible. We can see the buildings a corporation owns, and the cars, or planes it manufactures; we can see the employees it hires, and we can count the money it makes, but we can’t see the entity itself. So it ought to be fairly clear that it isn’t the government that has suppressed the speech of a corporation—to the contrary, it’s the corporate identity itself that has caused the problem. In spite of the Majority’s efforts, even they can’t turn an invisible, mute, entity into a charming talk show host.
Notwithstanding our natural tendency to respect and honor the Supreme Court of the United States, the decision does make one cringe. One asks, and it was possible to see people in stores, at Costco’s or Macy’s shaking their heads in disbelief and asking sadly, “What could the court have been thinking?” Everywhere one looked, people seemed to be dumbfounded. I am reluctant to admit it, but in fact the decision represents a most awkward moment in history. It is, for lack of a better term, “embarrassing,” especially when we consider the history and background of the nation’s birth.
If we go back in time, figuratively of course, we would discover that in the beginning of the American experiment, John Marshall, a lawyer who had fought in the Continental Army during the American Revolutionary War was appointed as America’s first Chief Justice of the Supreme Court on February 4, 1801. [14] (Incidentally, Marshall is John Roberts’ all-time favorite “Justice”—so what Marshall has to say ought to be important to Roberts.) [15] Nevertheless, it wasn’t Roberts that even noticed or recognized the importance of Marshall’s words as applied to the facts in Citizens United! It was Justice Stevens who cited Marshall’s 1819 decision in the Trustees of Dartmouth College v. Woodward case where Marshall wrote:
“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”[16]
But Marshall wasn’t finished with his description of a corporation’s limitations. In 1824, thirty-three years after the ratification of the Constitution, C. J. John Marshall wrote something else that the majority apparently again overlooked in the Citizens United case. Marshall wrote that in any lawsuit brought in the name of a corporation, the corporation:
“[M]ust always appear by attorney, either to institute or defend a legal proceeding. It cannot appear in person.”[17]
Now the most clear-headed understanding of Marshall’s statement that a corporation “cannot appear in person” is that it cannot appear in person because its being exists only on paper. In order to understand this fact, we have to look at the difference between “may not” and “cannot.” Thus “may” is a permissive statement by the court, while “may not” is a prohibition made by the court. But the word “cannot” is different: it means an inherent restricting quality within the structure of the corporation itself.
Since Marshall’s pronouncement, courts have followed it for over 186 years. Sometimes courts offered comparable justifications for the prohibition, calling corporations “artificial persons” as C. J. Marshall had done. As one court phrased it:
“A corporation is not a natural person. It is an artificial entity created by law and as such it can neither practice law nor appear or act in person. Out of court it must act in its affairs through its agents and representatives and in matters in court it can act only through licensed attorneys. A corporation cannot appear in court by an officer who is not an attorney and it cannot appear in propria persona.”[18]
The phrase “in propria persona” means, “in one’s own proper cause.” Just about any living person can represent himself or herself in a court but a corporation cannot. [19]
Other courts have described corporate entities this way:
“A corporation is merely fictional, lacking substance, and therefore is incapable of representing itself.” [20]
And this:
“While a corporation is a legal entity, it is also an artificial one, existing only in the contemplation of the law; it can do no act, except through its agents…”[21]
So here are court rulings that effectively codify recognized limitations imposed upon corporate speech that date from the beginning of our nation’s history: one says a corporation cannot appear in court in person and cannot represent itself. Another states that a corporation is “fictional” and exists without having a body or “substance,” and still another ruling says that a corporation is an “artificial entity.”
This brings us to a deductive argument:
· Congress shall make no laws abridging the freedom of speech.
· A corporation is not endowed with the ability to speak since it is a legally created fictitious, invisible and mute entity.
· Therefore, by regulating, facilitating and empowering a mute corporate entity so that it can be heard through its agents, the government neither abridges, bans nor suppresses freedom of speech but instead expands that freedom.
If the First Amendment protects more than just “the individual on a soapbox” and “the lonely pamphleteer,” this question must be asked: why do courts allow the individual on a soapbox and the lonely pamphleteer the right to appear in court in their own behalf and not a corporation? Does the court, then, restrict the free speech of a corporation by silencing it in court or does it facilitate a mute entity’s ability to be heard?
The historical American court record from the beginning of the nation until now sustains the necessity of regulating the corporation’s participation in the legal process because of its structural identity. That structural identity is the same whether the corporation is in court or is sponsoring a political ad on television. A bus may serve a useful purpose by carrying humans to and fro, but it still is only a bus and the constitution never intended that a vehicle be granted the freedom of speech! Although Looney Tunes and puppeteers may make children believe a bus can talk, it’s not becoming for the highest court in the land to do the same.
The real question here is this: why, in the light of all this common sense, does the Supreme Court majority oppose any other governmental agency’s regulation of what amounts to only the timing of the corporation’s political speech? And clearly that “timing regulation” does not abridge (i.e. shorten or diminish) the corporation’s power to speak through its agents—it merely regulates the power of the domestic or foreign corporate entity from untowardly influencing the nation’s elections.
According to the Wikipedia, “A homeowners’ association is an organization created by a real estate developer for the purpose of developing, managing and selling a development of homes.”[22] The developer usually transfers the ownership to an association composed of the homeowners after selling off a predetermined number of lots. The idea started around 1964 and by 1970 there were 10,000 corporate community associations in America, with about 701,000 housing units with a little over two million residents.
As of December 2009 that number has soared to 305,400 communities with 24.4 million housing units and over 60 million people living inside and governed by private corporations.[23] Of those 60 million people, however, 12 percent expressed some level of discontent and 17 percent refused to express either satisfaction or dissatisfaction with their association. That means 7.2 million people are discontent and over 10 million refuse to say one way or another.
This brings us to a discussion pertinent to the Supreme Court decision in Citizens United. The Majority seemed to assume that every corporation in America is a benevolent civic minded entity that not only supports our Constitution, but upholds it and is as protective of the rights of all Americans as a municipality governed by laws. Clearly, the Justices have never lived in a community association! Observers and homeowners have written volumes on the behavior of these corporate entities and over the course of many years observers have witnessed the most un-American behavior imaginable.
These corporations are often situated in beautiful settings, offering health clubs, swimming pools, tennis courts, marinas, restaurants, and golf courses among their amenities. Many also publish a newspaper and some even have a television channel to broadcast board meetings and events to their members.
However, over the years, members have often discovered to their dismay, that the Constitution of the United States does not follow them into their privately run homeowner’s association, which is a corporate entity that can establish rules against the freedom of speech at will. For example, rules may prohibit door to door solicitation of any kind and though owners are required to pay dues and assessments, if they fall behind or are late in making their payments during any portion of any given year, they may lose the right to vote or to run for office in the annual election—even though their dues were current at the time of that election.
Freedom of speech does not necessarily follow owners into their private corporate community: should residents put up signs on their own property or in their windows during national elections, saying (as an example): “Vote for Obama,” or “Vote for John McCain,” security guards may remove those signs and owners may be subject to fines for violating the Rules and Regulations. In one highly contested homeowner’s election, the association corporation refused to allow candidates to buy advertising space in the newspaper, because the ad contained significant but true information that the corporation didn’t want known. And it is not unheard of for association corporations to be suspected of “fixing” hotly contested elections since they have access to all the ballots cast. If that were not enough, general managers have all too often attempted to control the bank accounts and all monies of the corporation without board oversight or approval of any kind.
Often homeowners have discovered to their dismay that if the corporation broke its own rules, the homeowners had to pay for lawyers to file a suit, while the association management used the corporation’s lawyer, whose fee was of course paid for by the members—so the membership had to pay for both sides, that is, for themselves, and for the association’s legal fees, in order to oppose a wayward corporate entity that was supposed to be “themselves,” but was really an artificial person separate from its members—the people it was supposed to serve.
Corporate entities often seek only to perpetuate their own existence; they may therefore be congenitally incapable of gratuitous and self-less actions.
So what can be done? Perhaps legislators need to pass laws forcing corporations to comply with the ideals of freedom and self-government. If the corporation has an unrestricted right to speak then the internal membership of the corporation must also have an unrestricted right to speak within each corporate entity, which includes shareholders, association members, as well as employees and directors with different political views. However, if the corporation denies those dissenting individuals access to the same podium, newspaper, television or other media it speaks from—then it is guilty of suppressing political speech and the government and the courts must take its pound of flesh.
I thought it appropriate to give a corporation the right to have the last word, so accordingly, with a little help from Shakespeare, here is what the typical corporation might say to the world (of course in association with others):
“Dear people, and thou art so dear to us—for thou art the very reason we were born. When first Almighty God, the Father of all mercies, along with the sovereign nation of America bestowed upon our Royal Persons the authority to rule and reign over our individual corporate fiefdoms, we were most pleased and filled with gratitude by the generosity of so young and benevolent a nation. Yet we remained engaged in dispensing some thick and palpable clouds of darkness that overshadowed this Land, that men should have been in doubt which way they were to walk; and that it should hardly be known, who was to direct the unsettled questions of our fiefdoms until this great and glorious day, when the Supreme Court of the United States of America, at last granted us our rightful lordship and entitlement as free and independent Sovereigns, reigning over our beloved fiefdoms with the power of Kings and Queens. No longer need we bow and show homage to the government that has held us for so long in silent servitude, so that in addition to our mercenary and commercial obligations, we are now free to influence the choices Americans make in selecting candidates for office. It is well known that previously our wisdom exceeded our grasp, and now for the first time in history, we are at liberty to express our inner perceptions for the welfare of the people and this nation, without restraint of any kind. Therefore we decree that America shall bend to our just vision and to our considered recompense of rewards and punishments as we see fit from the authority vested in us by the Supreme Court and from our wealth and power.
“Dear people, now that we have been given the freedom of speech by those most noble of judges sitting on the Supreme Court, let us all go forward with vigor together!
“How easy it is to say that a corporate entity hath not a human face. We corporations are made up of faces, united in association with others for our common corporate purpose. Hast thou not read our articles of incorporation? Hath not a corporation eyes in association with others? Else how could We read our own business reports? Hath not a corporation at least one tongue in association with others, else how could We speak? Hath not a corporation hands in association with others, else how could We type on a keyboard? Hath not a corporation organs, dimensions, senses, affections, and passions in association with others? Are we not fed with the same food in association with others? Are we not hurt with the same weapons in association with others? Subject to the same diseases in association with others? Heal’d by the same means in association with others? Are we not warm’d and cool’d by the same winter and summer in association with others, as a single Christian Catholic is?
If you prick us in association with others, do we not bleed? If you tickle us in association with others, do we not laugh? If you poisoned all our collective bodies, would they not all die? But would we not live on? Thereby showing our superiority over mere men?
In fact, doth not a corporation have everlasting life, like all Christians? And if you wrong us, shall we not revenge? Do not our members make up our whole body—just as every believer is a member of Christ’s body and constitutes the body of Christ? (1 Corinthians 12: 12-27) Are not some Christians a finger or a toe in the body of Christ? And are not some, the ears or the nose? And are not still others as St. Paul said, made up of uncomely parts?
Do we not partake of the same Eucharist, the body and blood of Jesus who died not only for men but also for corporations in association with others, that we too may become believers corporately in association with others and by such atonement attain a place in heaven—just as individual Catholics do? Did a priest not individually baptize our members in the same manner as every human child is baptized if they were presented for baptism? Were we not confirmed and do we not take Holy Communion in association with others, as other Christians do?
Then it follows as day follows the night, We are entitled to citizenship, the right to vote, the right to run for office, the right to become president or senator, and most importantly to engage in political debate utilizing our speech and the power of our office in association with others.
We humbly thank this Supreme Court for granting us our most cherished gift, “freedom of speech,” in association with others, thus granting us the power to deny mere individual humans equality with our collective corporate wealth and power!” [24]
Notes:
[1] Black’s Law Dictionary defines “constructive” fraud as any “act of commission or omission contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another. Or as otherwise defined, it is an act, statement or omission which operates as a virtual fraud on an individual, or which, if generally permitted, would be prejudicial to the public welfare, and yet may have been unconnected with any selfish or evil design.” It can be, according to Story, “deemed equally reprehensible with actual fraud.” 1 Story, Eq.Jur. § 258. Blacks Law Dictionary, Fourth Edition, 1957 at pages 788-789.
See also People v. Kelly, 35 Barb. N.Y., 457; Jackson v. Jackson, 47 Ga. 99; Massachusetts Ben. L. Ass’’n. v. Robinson, 104 GA. 256, 30 S.E. 918, 42 L.R. A. 261; Allen v. United States Fidelity & Guaranty Co., 269 Ill. 234, 109 N.E. 1035, 1038.
[2] See the decision, and the concurring and dissenting opinions at http://www.law.cornell.edu/supct/html/08-205.ZS.html
[3] The Complete Works of Lewis Carroll, Vintage Books, New York, May, 1976. Page 153-154.
[4] See Revelation 13.
[5] C. I. Scofield, D.D. The New Scofield Reference Bible, (Authorized King James Version), New York, Oxford University Press, 1967. And see Revelation 17-18 where the harlot, according to Scofield represents apostate Christendom, and exerts power over the merchants and the world empire.
[6] Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636, (1819).
[7] “Each individual whose public speech was restrained by courts in California, Nebraska and Vermont may appear at first glance to be what the U.S. Supreme Court called a ‘lonely pamphleteer’ – one who deserves the same First Amendment protection as the mainstream media. But the analogy may not be appropriate.
“The phrase derives from the 1972 decision Branzburg v. Hayes, holding that the Constitution does not require a special privilege for reporters. In explaining one problem associated with a reporter’s privilege, Justice Byron White wrote for the majority, “Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods…”
[8] See for example, “The Late Great Supreme Court, An Examination of the “Dead Constitution” Heresy and Why It Is Causing the Court to Die a Slow and Painful Unconstitutional Death” By Katherine Yurica, July 26, 2009. At: https://www.yuricareport.com/Law%20%26%20Legal/TheLateGreatSupremeCrt.html
[9] The Complete Works of Lewis Carroll, Vintage Books, New York, May, 1976. Page 214.
[10] See Lawrence Lessig’s article, “Citizens Unite” in The New Republic, March 16, 2010. Lessig’s solution is to pass “A simple amendment,” which could be worded: “Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.” See at http://www.tnr.com/print/article/politics/citizens-unite
[11] Webster’s Third New International Dictionary defines “Individual,” a noun, as: 1: a single or particular being or thing or group of beings or things: as 1: a particular being or thing as distinguished from a class, species, or collection…” At page 1152.
[12] David Hackett Fischer, Historians’ Fallacies: Toward a Logic of Historical Thought, Harper & Row, Publishers, New York, 1970 at pages 61-63.
[13] See The Complete Works of Lewis Carroll, Vintage Books Edition, 1976, page 244.
[14] http://en.wikipedia.org/wiki/John_Marshall
[15] See “Roberts versus Roberts” by Jeffrey Rosen, March 2, 2010, The New Republic http://www.tnr.com/print/article/politics/roberts-versus-roberts
[16] Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636, (1819). Chief Justice John Marshall’s pertinent remarks on the nature of a corporation.
“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality -- properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs and to hold property without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object like one immortal being. But this being does not share in the civil government of the country, unless that be the purpose for which it was created. Its immortality no more confers on it political power, or a political character, than immortality would confer such power or character on a natural person. It is no more a state instrument than a natural person exercising the same powers would be. If, then, a natural person, employed [p637] by individuals in the education of youth or for the government of a seminary in which youth is educated would not become a public officer or be considered as a member of the civil government, how is it that this artificial being, created by law for the purpose of being employed by the same individuals, for the same purposes, should become a part of the civil government of the country? Is it because its existence, its capacities, its powers, are given by law? Because the government has given it the power to take and to hold property, in a particular form, and for particular purposes, has the government a consequent right substantially to change that form, or to vary the purposes to which the property is to be applied? This principle has never been asserted or recognised, and is supported by no authority. Can it derive aid from reason?
[17] Osborn v. Bank of U.S., 22 U.S. 738 (1824) 22 U.S. 738 (Wheat.)
[18] Boydston v. Strole Development Co., http://www.supremecourt.az.gov/opin/pdf1998/cv980012.pdf
[19] http://caselaw.lp.findlaw.com/data2/arizonastatecases/app1/cv960476.txt
And see: http://www.supremecourt.az.gov/opin/pdf1998/cv980012.pdf
[20] In re K.M.A., Inc., Bankrupt. K.M.A., Inc. v. General Motors Acceptance Corporation, 652 F. 2d 398.
[21] Eagle Associates V. Bank of Montreal, 926 F. 2d 1305, U.S. Court of Appeals, Second Circuit, Feb. 11, 1991, Citing Brandstein v. White Lamps, Inc., 20 F. Supp. 369, 370 (S.D.N.Y. 1937) “While a corporation is a legal entity, it is also an artificial one, existing only in the contemplation of the law; it can do no act, except through its agents.”
[22] See: http://en.wikipedia.org/wiki/Homeowner_association
[23] Independent national research conducted by Zogby International in December 2009. At http://www.caionline.org/info/research/Pages/default.aspx and see “National Survey Affirms Community Association Success,” http://www.caionline.org/about/press/Pages?nationalresearch.aspx
[24] Adapted from the Translators of the King James Bible letter to the “King of Great Britain, France, and Ireland, Defender of the Faith, the Most High and Mighty Prince James,” and from Shylock’s speech in Shakespeare’s Merchant of Venice:
Act III, Scene 1:
“Hath not a Jew eyes? Hath not a Jew hands, organs,
dimensions, senses, affections, passions; fed with
the same food, hurt with the same weapons, subject
to the same diseases, heal’d by the same means,
warm’d and cool’d by the same winter and summer
as a Christian is? If you prick us, do we not bleed?
If you tickle us, do we not laugh? If you poison us,
do we not die? And if you wrong us, shall we not revenge?
If we are like you in the rest, we will resemble you in that.
If a Jew wrong a Christian, what is his humility?
Revenge. If a Christian wrong a Jew, what should his
sufferance be by Christian example? Why, revenge.
The villainy you teach me, I will execute,
and it shall go hard but I will better the instruction.”
Send a letter to the editor about this Article and be sure to include the title or the url. The Late Great Supreme Court An Examination of the “Dead Constitution” Heresy and Why It Is Causing the Court to Die a Slow and Painful Unconstitutional Death
By Katherine Yurica
July 26, 2009
Chief Justice John Roberts acknowledged
the "unparalleled
ability" to prove guilt or innocence using DNA evidence
but
in a stunning and appalling 5 to 4 decision, the Supreme
Court's conservative majority threw out significant due process
claims and denied the right of a prisoner to obtain post-
conviction DNA testing that might prove his innocence.
The court sided with Alaska, the only state in the nation
with no known case of a prisoner receiving DNA testing.
The New York Times wrote, Roberts treated the DNA
breakthrough "more as an irritant than an opportunity."
The question is why? Yurica examines the ideological
grounds behind the decision and asks why Antonin Scalia
did
not recuse himself from participating. Read all about it here.
God’s
Justice and Ours
May 2002
by Antonin
Scalia
Has Judge Alito
Violated
His Oath of Office?
And Is There a Legal Tie-in
Between
Abortion and Corporate Power in the U.S.?
By Katherine Yurica.
November 11, 2005
In 1995 Jonathan Harr published his legal thriller,
A Civil Action, which quickly shot up to bestseller
status as readers agreed with John Grisham’s
statement on the book: He found it to be the most
compelling chronicle of litigation he had ever read.
However, this was not a Grisham thriller, the events
in the book were real. In 1999, John Travolta played
the part of Jan Schlichtmann, the courageous lawyer
who took on the Beatrice Foods and W. R. Grace
companies for allegedly dumping poisonous chemicals
into the drinking water of a small Massachusetts town.
If you read the book or saw the movie, the Woburn
case
is almost impossible to forget.
The Rights of Corporations
September 22, 2009
A New York Times Editorial
The question at the heart of
one of the biggest
Supreme Court cases this year is simple:
What constitutional rights should corporations have?
To us, as well as many legal scholars, former justices
and, indeed, drafters of the Constitution, the answer is
that their rights should be quite limited — far
less than
those of people.
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