Obama’s SOTU Confrontation with the Supremes: Jeffrey Rosen in The New Republic
Obama’s War With the Court Just Escalated
by Jeffrey Rosen
The New Republic, January 27, 2010
One of the most dramatic moments in President Obama’s State of the Union was his attack on the Supreme Court with the justices arrayed in front of him. “Last week, the Supreme Court reversed a century of law to open the floodgates for special interests–including foreign corporations–to spend without limit in our elections,” Obama declared. This prompted Justice Samuel Alito to shake his head and mouth the words “not true.” Alito had good reason to feel defensive–he replaced Justice Sandra Day O’Connor, who recently criticized the 5-4 Citizens United campaign finance decision and suggested she would have voted the other way–and bloggers are already attacking Alito’s inappropriate intervention as a “You lie!” moment. Even more significant is what it says about Obama’s welcome readiness to attack the Court’s conservative majority for its judicial activism in the future. The conservative justices may have calculated that they could strike down campaign finance restrictions without provoking a full-blown presidential backlash. But it takes only a few high-profile presidential attacks to tar a Court as activist in the eyes of history. During the 1930s, the Supreme Court upheld a great deal of FDR’s economic recovery program, but the New Deal Court is remembered today as a group of unprincipled activists because of just a handful of high profile decisions that FDR prominently attacked.
It’s a relief to see former Professor Obama having the nerve to stand up for judicial restraint and to criticize the conservative justices to their faces. If the justices don’t take the criticism to heart, they’re headed toward a full-blown confrontation with the White House and Congress that won’t end well for the Court.
February 4th, 2010 at 3:43 pm
It is a good sign that Obama was willing to make such a high-profile rebuff of the Gang of 5 at the State of the Union Address. Alito’s defiant response is an indication, I think, that they know they overstepped, but can count on the right to back them, much as they did with the Joe Wilson outcry.
Some may find this bit of satire I wrote, aimed at the SCOTUS and at we citizens for our neglect of our democracy, of some interest: http://smirkingchimp.com/thread/26486
The Pen is offering Bumper Stickers for no charge:
http://www.peaceteam.net/bumper_stickers.php
(Corporations are not People, and Impeach the Supreme Court 5)
February 4th, 2010 at 7:16 pm
Who saw Justice Alito mouthj this LIE business ? I guess the camera panned them-The Court- when the President made the charge ?
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To Andy: Several comments have been made over the months complaining that a corporation should NOT be an entity itself even as a persom is.
I still have not understood why that is a problem. ? ? ?
Would you invest in equities if holding an interest made you personally liable for failures, losses and liabilities of the corporation . . beyond say the loss of your investment.
And your savings and home and everything but such little as is exempt in personal (your) bankruptcy.
There is good reason for Corporations, large and small, to have legal status as an entity itself.
THE LAST REMARK IN JIM O’S COMMENT WAS Corporations Are Not People.
I have yet to see the point; It is a regulat theme for Jim Z. Maybe at this point some ‘liberal’ thinker would explain their such view on this,
February 4th, 2010 at 7:58 pm
There’s no disagreement whatever about that, David R., and there has never been. That is what a corporation is.
The issue is whether the corporation is entitled to ALL THE RIGHTS that the Constitution gives to individual American citizens. THe reason that is a problem is that –particularly when it is combined with the notion that writing checks to support election campaigns constitutes “free speech”– these “entities” are free to pour money into helping drive their political opponents OUT of office and putting their political supporters INTO office.
There’s a long, long history –100 years worth– of drawing SOME such boundaries around the rights of corporations. The recent decision sweeps away a century of decisions by previous courts.
That, plus the fact that the original decision granting corporations the status of “persons” –back in the 1880s– was a case of genuine, flagrant “judicial activism (by “conservative” judges on the Supreme Court of that time. It was based on a (mis)interpretation of the 13th, 14th, and 15th amendments– the framers of which were still alive and reported clearly that they had not such INTENT for the word “persons” being so interpreted. SO much for strict constructionism, originalism, and the other things that are supposed to characterize the conservative justices of our own time, who happily built upon this deliberate misconstruing of the words in the Constitution.
Is that enough to make you less than happy with this decision?
February 4th, 2010 at 9:57 pm
My comment was not re the recent decision as I thought it loco but I guess loco is in step with the general state of the times.
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By posting my question on this thread I guess has confused the intent of the comment. I was using the opportunity opened by Jim O’s comment as stated already.
I don’t see why there shouldn’t be meaningful limits on contributions from whoever or whatever. That’s not the point, though, of my question.
THE QUESTION IS:
Person . . Entity . . What’s the difference before the law ? Jim Z is forever ‘lamenting’ the ‘personhood’ or whatever of corporations.
This might be a good time to make clear what he as a professor of economics sees or thinks that prompts his such comments . . . and why.
This is a sincere interest.
February 5th, 2010 at 1:18 pm
A partial response to DavidR’s questions:
Fascism Coming to a Court Near You
Corporate Personhood and the Roberts’ Court
Thom Hartmann 7/6/09:
As the 1983 American Heritage Dictionary noted, fascism is: “A system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism.”
Get ready.
Last year a right-wing group put together a 90-minute hit-job on Hillary Clinton, and wanted to run it on TV stations in strategic states. The Federal Election Commission ruled that the “documentary” was actually a “campaign ad” and thus fell under the restrictions on campaign spending of McCain-Feingold, and thus stopped it from airing. (Corporate contributions to campaigns have been banned repeatedly and in various ways since 1907 when Teddy Roosevelt pushed through the Tillman Act.)
Citizens United, the right-wing group, sued the Supreme Court, with right-wing hit man and former Reagan solicitor general Ted Olson as their lead lawyer.
This new case, Citizens United v. Federal Election Commission, presents the best opportunity for the Roberts Court to use its five vote majority to totally re-write the face of politics in America, rolling us back to the pre-1907 era of the Robber Barons.
As Jeffrey Toobin wrote in The New Yorker (”No More Mr. Nice Guy”): “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”
And the only way the modern Republican Party can recover their power over the next decade is to immediately clear away all impediments to unrestrained corporate participation in electoral politics. If a corporation likes a politician, they can make sure he or she is elected every time; if they become upset with a politician, they can carpet-bomb her district with a few million dollars worth of ads and politically destroy her.
February 5th, 2010 at 1:24 pm
(Hartmann con’t):
As Wallace’s President, Franklin D. Roosevelt, said when he accepted his party’s renomination in 1936 in Philadelphia:
“…Out of this modern civilization, economic royalists [have] carved new dynasties…. It was natural and perhaps human that the privileged princes of these new economic dynasties, thirsting for power, reached out for control over government itself. They created a new despotism and wrapped it in the robes of legal sanction…. And as a result the average man once more confronts the problem that faced the Minute Man….”
Speaking indirectly of the fascists that Wallace would directly name almost a decade later, Roosevelt brought the issue to its core:
“These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power.”
But, he thundered in that speech:
“Our allegiance to American institutions requires the overthrow of this kind of power!”
In just a few months, we may again stand at the same crossroad Roosevelt and Wallace confronted during the Great Depression and World War II. Fascism is rising in America, this time calling itself “compassionate conservatism,” and “the free market” in a “flat” world. The point of its spear is “corporate personhood” and “corporate free speech rights.”
The Roberts’ Court’s behavior – if this prediction of their goal for this fall is accurate (and it’s hard to draw any other conclusion) – now eerily parallels the day in 1936 when Roosevelt said: “In vain they seek to hide behind the flag and the Constitution. In their blindness they forget what the flag and the Constitution stand for.”
February 5th, 2010 at 1:29 pm
“Transcript: Thom’s Corporate Personhood rant, 09 September 2009:”
Okay, let me just lay this out. Back in 1885, January 26th, 1885, Delphin Delmas was the lawyer who had been hired by the county of Santa Clara to argue this case before the Supreme Court. Santa Clara County vs. Southern Pacific Railroad. Prior to that, he had for free on behalf of the county, argued a case which actually led to the saving of the redwoods. There literally would be no redwoods left in the United States were it not for Delphin Delmas, this lawyer. An amazing man. And early around 1906 or 1907, he defended a famous murder case, a movie was made out of it called “The Lady in the Red Swing”. He’s got a very colorful history, this guy.
But in any case, before the Supreme Court the Southern Pacific Railroad argued in this case that the 14th amendment which says ‘no person shall be denied equal protection under the law’ should apply to them as a corporation. In other words, that as a corporation they should have rights under the constitution because the 14th amendment, when it was written to free the slaves in the 1870’s, the 14th amendment didn’t say ‘no natural person shall be denied equal protection under the law.’ Instead it says ‘no person.’ And for hundreds of years of common law we had this distinction between natural persons, you and me, and artificial persons: churches, governments, corporations….
February 5th, 2010 at 1:32 pm
(“Rant” con’t):
Source: Thomhartmann.com
Here is the big problem. If this court rules that corporations can participate in political discourse, right now we have laws that prohibit, remember the whole Al Gore, the Buddhist temple thing, how some of that money was coming from off-shore. Turned out it wasn’t, but you know, it got the right wingers pretty hysterical for a while.
We have corporations in the United States that are owned in large part by entities that are not in the United States. In fact some of them are owned by the Government of Communist China, large chunks of their stock. About 20% of the members of the boards of directors of the hundred largest corporations in America, the Fortune 100 companies, about 20% of their boards are non-US citizens. We’re talking transnational corporations. Their interests are not the same of those as a citizen.
And yet it looks like our Supreme Court is about to give them the rights that you and I have to political free speech.
Because it is going to assert, and it has asserted over the years, in this case that I’m talking about, Santa Clara County VS. Southern Pacific Railroad, actually the court did not rule that corporations were persons, but they have been claiming that ever since then because the clerk of the court, John Chandler Bancroft Davis, former President of the Newburg and New York railroad, wrote into a head note – the commentary on the case – which has no legal standing, a quote from the chief justice who had since died, he was dying of congestive heart failure during the year the proceedings happened, he died the next year.
This was published two years later. He wrote that the chief justice said, “a corporation is a person and therefore entitled to protection under the 14th amendment.” When nobody knows if the chief justice said that. Even if he did, it doesn’t matter. It’s not the case. So what this is going to come down to, is whether corporations have the rights of persons in the United States, whether they have free speech rights and, this is just a huge, huge issue.
For more detail see Hartmann’s book – “Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights.”
February 5th, 2010 at 5:19 pm
Too many words and not enough clarity from Hartman.
Waiting on Jim Z,
February 5th, 2010 at 6:36 pm
David R., if you have read Hartmann’s book and still don’t get it, then you won’t.
February 5th, 2010 at 7:03 pm
Perhaps David R. could frame a more specific question about Hartmann’s argument, so that what seems to him unclear can become clear to him without his having to read the whole book.
February 5th, 2010 at 10:16 pm
Thanks Andy.
The question in my thinking is as said:
What is this about a Corporation being an Entity so that before the law it is just dealt with as an Individual or ‘Person’ ?
The Corporation does business, borrows money, can sue and be sued all just as an individual of (or person can).
The real difference I see is that its liabilities are the liabilities of the Corporation and if Andy’s investment in the Corporation’s stock makes him partly an owner the liabilities of the Corporation do not become his beyond the value of the stock.
Whereas if he were an part owner without the Corporate Shield he would stand to lose his savings and home, whatever.
Question: Who would invest incurring such liabilities ?
That shield does NOT protect Corporate Executives from unlawful (criminal) conduct; big recent example ENRON.
As far as contributions or political advertising
I fail to see the difference between a Corporation and an individual billionaire and myself.
If one man-one vote is important and voter fraud is a criminal offence
I fail to see how the enormous spending of money by any is at all ‘freedom of speech’ That is really nonsense. So that’s agreed.
But this ‘complaint’ has gone on on this site for many montys long before the recent Supreme Court’s recent possible blunder.
So ! My question still remains unanswered
Which is :
Since we have Corporations and the Corporate Entity is a necessity
I simply want to know what you liberals think is the problem, Jim Z.
February 5th, 2010 at 10:43 pm
And David R., on numerous occasions in the past I have directed your attention to three books (read them all or take your pick), Hartmann, “Unequal Protection”; Bakan, “The Corporation”; and/or Korten, “When Corporations Rule the World”.
You may have choosen to ignore this suggestion, which is fine. These men have laid it out, each in a slightly different way. Education is sometimes hard work. Surely there is a public library somewhere near you.
February 6th, 2010 at 12:43 pm
Yes Jim, I ordered from Amazon back then. I see The Corporation -Bakan here on the desk. The print is awfullky fine for me and I have yet to submit to lenses.
I see the caption: The Pathological Pursuit of Profit and Power.
It really is a ‘disease’ that some are born with and others acquire.
I am personally acquainted with a few of this type. Of course when they have the sense of power of really big business in can naturally take them over.
THE MIS-USE OF POWER WHETHER GOVERNMENT, BUSINESS OR RELIGION (OR EVEN A PRISON GUARD) IS NOTHING NEW. SO !
THe Reformation was an attempt to escape the misuse of power by Popes
The American Revolution was to escape the power of the King
What is proposed to combat (or under-cut) the mis-use of power by ‘corporations’ ?
Since i cannot (or ought not) read all this small print but am open to learn,
Maybe a few statements would give me a clue.
First, though, can we acknowledge that the Corporate form is a necessary Entity ? Yes or No ? if No, how would or could it be replaced ?
If the Corporate form IS a necessary Entity why is the corporation as such being attacked rather than the abuse of power ?
In either case what are the proposals re what to do about it in simple outline like:
1.
2.
3.
so any reader can get the idea and suggested solution(s)
February 6th, 2010 at 1:08 pm
Just a little occasion one time in the early sixties before the days when so much business ws done on computers, ie, when it was done much more with personal contact.
I happened to be in a large wholesale business just going through somewhat checking the building so was just a fly on the wall as I passed through.
It was just before they opened for business for the day; everyone was in place waiting to open.
Back and down in the stock rooms and shipping area the all male workers were harrassing one another trying to say who was ‘queer’.
Up at the city counter where the public was served the attractive male and female clerks were flirting and carrying on with one another
And over in the ‘bull-pen’ behind a rail like banks used to have were the account executives or whatever, mature men at their desks and swivel chairs and I never heard so much power-talk in one place ever.
I wasn’t listening but the atmosphere was unmistakable. Someone they dealt with was a son-of a bitch & etc etc.
I thought am I ever a privileged observer, right here in one place
a Cameo of the stratas. It’s still just as clear in memory as it was that day.
February 6th, 2010 at 3:10 pm
David…I’ve read this and read this and part of me feels for you. OK, part of me wants to slap you so you’ll wake up. I see you as a nice guy who wants to do good and be rewarded according to the American Dream.
The problem is you see the dream as being delivered by the corporation and it isn’t, Sweetheart. It’s delivered by the small guys who work on the line and bleed for their pay.
The truth, David, is that without the common man, there would be no corporation. There is no way to separate one or two thousand if they are united in purpose. It’s when individuals turn over their power to the big guys that corps are born – and then – they begin to destroy.
Why can’t you see this?
February 6th, 2010 at 4:04 pm
The following site contains a familiar list of 14 aspects of fascism based on a study of actual facsistic regimes through history:
http://www.anotheramerica.org/fascism.htm
Anyone who purports to be a student of history should be well familiar with them.
Mussolini (who probably knew what he was talking about) said, “Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power”.
February 6th, 2010 at 4:19 pm
David R says “and I have yet to submit to lenses”. Well David, I was reluctant to submit to the lenses till I reached about 50 years old myself. I finally got a pair of readers from the local dollar store for $1.00 and wow what a difference that made. I really didn’t notice the deterioration of my eyes because it was so gradual over maybe 5 years or even longer and then I finally got the spec’s. I would suggest you stop at your local dollar store and try a set. In my case I think life without the readers would be like life without toilet paper; I really don’t think I could face going back to whatever they used before.
DB
February 6th, 2010 at 6:51 pm
O K, I’ve printed out and read the 14 common characteristics of Fascist Regimes.
So! Every big city has at least four of the principles in play as I am dealing withit here already.
This is the natural course of unrestrained or unrestricted power (as Bill Clinton said of his ‘escapades’ “I did it because I could”)
I am unable to see what that has to do with the necessary legal entity know as the Corporation which no one has shown how we can do without.
So what is the point of slamming corporations as such when thay are a necessary form.
The problem for us peons is the misuse -In Our View- of the power and opportunities available to those in power in government and business (and often Media as well)
So What Is The Available Alternative ?
Just sad lamentations of ‘the way of the world ?
What ? ? ?
February 7th, 2010 at 4:11 pm
It would be useful to do a point by point comparison between conservative politics of today and the fascism 14 points.
February 7th, 2010 at 6:13 pm
Jim, you’re not addressing the question re corporations. I think the readers and Andy can all see.
There is NO question of the abuse of the power of MONEY and INFLUENCE from whatever quarter whether certain Corporations, Lobbies, or whatrever and wherever and the MEDIA as well. The individual voter has becone almost insignioficant in effecting much of the Nation’s policies.
All this is known and acknowledged.
But the question remain=s unanswered: WHAT IS THIS BUSINESS OF ATTACKING CORPORATIONS . . AS SUCH.
EVEN ANDY ACKNOWLEDGES THE CORPORATE FORM AS AN ENTITY IS A NECESSITY FOR BUSINESS TODAY. IT SHOULD BE OBVIOUS.
We all hate (or should)) the abuse of power WHEREVER.
But what is your issue with Corporations AS SUCH ?
This seems to be unexplained . . or is this some kind of fetish of liberal self consolation ? What ?!
February 7th, 2010 at 7:11 pm
I’ve not heard Jim Z. as condemning corporations as one of the chief actors in our economy. If I’ve understood correctly, the issue is not the ECONOMIC function but rather the corporation having a dominant role as a POLITICAL actor. That’s the problem. That’s what construing the Constitution as imbuing corporations with all the political rights of individual citizens (persons) does to corrupt our democracy. That’s what this CITIZENS UNITED decision is all about: it magnifies the political power of corporations, which is already a huge problem in our system. And it’s bad law, showing “justice” to be just one more tool my which the powerful arrogate still more power to themselves.
February 7th, 2010 at 8:02 pm
This is NOT about the Supreme Court decision.
I just used a line in Jim O’s comment as an opening to bring up this long standing ‘castigation’ by Jim Z of the ‘Corporation’
and I simply want to see it made clear on this site (if possible) what a Corporate Entity is all about
and maybe let it be acknowledged so if there is an ongoing discussion of our- yes OUR- economic and political problems it is clear what we are talking about.
Somehow, for whatever reason, Jim, Z ( a professor of economics) has failed to come clear on this and I do not understand why.
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Of course it is obvious we are being dis-enfranchised as voting citizens.
But if we can come together as responsible citizens, responsible consumers and make sense in our political demands . . sooner than later we maybe will be effective.
I do not think it is hopeless, but if we cannot have some unity and show some respect for some of the necessary aspects of public and business life in our protests and demands ‘we’ will continue to be largely ignored.
They will simply feel justified in playing the game over the heads of a mass of protesting ignorami (whether ‘educated’ or not).
February 7th, 2010 at 8:21 pm
Jim Z can speak again if he wishes. But in the meanwhile, or if he doesn’t, can you cite any time that Jim Z excoriated corporations THAT WAS NOT IN THE CONTEXT OF THEIR ACTING AS POLITICAL, NOT ECONOMIC, POWERS?
February 7th, 2010 at 9:48 pm
For those who prefer not to read Hartmann’s, Bakan’s or Korten’s books, here are EXERPTS FROM AMAZON.CO’S PUBLISHED REVIEWS OF THESE BOOKS. It is clear that the reviews, and the books themselves, deal with the destruction of democracy by the corporate form. It obviously does not criticize the corporate form as an economic entity:
Thom Hartmann, “Equal Protection” -
“Unequal Protection should be in the hands of every thinking American. If we do not awaken soon, democracy will be replaced by a new ‘Third Reich’ of corporate tyranny. To be aware of the danger is the responsibility of each of us. No one has told us the truth better than Thom Hartmann. Read it!”–Gerry Spence, author of Give Me Liberty.
Joel Bakan, “The Corporation” -
“Corporations have successfully hijacked governments … other aspects of human nature, such as creativity, empathy, and the ability to live in harmony with the earth, are suppressed …. Bakan believes that, like Communism, this ideological order cannot last and that corporate rule must be challenged to bring balance and revive the values of democracy, social justice, equality, and compassion.”
David Korten, “When Ciorporations Rule the World” -
“…describes the global spread of corporate power as a malignant cancer exercising a market tyranny that is gradually destroying lives, democratic institutions and the ecosystem for the benefit of greedy companies and investors.”
Again, these three paragraphs were written by reviwers, not the three respective authors (or me).
Clearly, these three authors have studied and written about the takeover of political institutions by an economic institution that is unrivalled in its capacity to capture and rule us.
But don’t take my word for it, or even those of these reviewers on Amazon. Do yourself and the world a favor and read the books.
And for good measure, there’s a fourth book, “Friendly Fascism” (paperback edition, 1999, orig. publ. 1980) by Bertram Gross. And an Amazon.com review of Gross’s book:
“…the Big Government/Big Business combine that is the fueling engine of fascism is alive and well. Indeed, stronger than ever in this country.”
Or, in the alternative, kick back and enjoy the ride to fascism that the Right has paved for us. Chances are, it is a ride we are now all already on and may perhaps, thanks to the current Supreme Court, contain no reverse gear.
February 8th, 2010 at 9:18 am
Appreciate the time spent pursuing this understanding.
My objection is and has been to the branding of ‘The Corporation’
as ‘the enemy’ sans adjective, ie, say, Big, Major, International, Petro,Agri etc.
Yes, I am aware of some of the abuse and the complicity of government (s) some of which are put in power by the same and supported to the detriment and privation of the populations. Wars are fomented to exploit natural resources, the very idea of controlling food crop seeds, even privatizing water, the contri-bribed American Congress and political system.
I object to the blanket branding of ‘Corporations’ without specifics
as largely catering to the ‘liberal’ tendency of self consolation by being anti
the ‘system . . PERTIOD.
(No doubt it ‘sells’ well in certain quarters, but that’s not the path toward solutions)
So ! I certainly know there is a gigantic problem of mis-use of power from our point of view (of, by and for The People)
My continuing call is for more unity of the people and an honest acknowledging of what is really the divisive element among us
Or sure enough we will reach the point of no return. I choose to believe we maybe have not and proceed on that assumption.
\
February 8th, 2010 at 9:43 am
I, for one, believe that this site focuses considerable attention to “what is really the divisive element among us.” I imagine, however, that you, David R., are proposing some other element as the really divisive element. Am I right? You think that the really divisive element is not the right wing’s consistent attempt to find issues that divide the American people, so we cannot work together to address any of our problems. Rather that it is because some liberal elements in society want to create greater freedoms for people in their private lives, contrary to the moral condemnations of the Bible and that have traditionally been punished by American law. Is that right?
February 8th, 2010 at 11:10 am
Rather that it is because some liberal elements in society want to create greater freedoms for people in their private lives, contrary to the moral condemnations of the Bible and that have traditionally been punished by American law. Is that right?ABS
Not all that wrong there, Andy. However toleration in NOT a problem
but what is covered in your expression Greater Freedom if fully expressed
I would say Right On, Andy. Correct !
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And i will add: IF THIS CONTINUES . . THEY WILL JUST CONTINUE PLAYING THE GAME OVER THE HEADS OF THE PROTESTING CONFLICTED MASSES.
WHAT’S TO STOP THEM ?
SO I GUESS YOU CAN MAKE YOUR CHOICE AND LIVE THE CONSEQUENCES !