David Weinstein, an NSP member, points out the pitfalls in the Supreme Court's recent decision on corporate personhood in a letter he sent to the Justice who made that decision possible.
Justice Anthony M. Kennedy
The U.S. Supreme Court
Washington, D.C.
Dear Justice Kennedy,
I am writing you to express my alarm at the immoderate, extremely ideological and partisan nature of your decision in Citizens United v. FEC, which overturns settled law opens a floodgate of corporate advertising in this republic’s electoral process. This decision clearly puts our democratic process and indeed the republic itself in great peril.
The Supreme Court was established as a bulwark against and a leveler of idiosyncratic, politically based or corrupt rulings by lower courts. I say, with reluctance, however, that your decision and that of the other four in the majority exemplifies all of these errors in judgment rather than correcting them. Your decision constitutes a threat to the very foundation of the republic by overtly encouraging the very tyranny that the Founders identified as their chief concern to the longevity of this greatest experiment in democracy.
The Founders incorporated the balance of power, checks and balances into our system of government into the Constitution precisely to limit the ability of any special interest to dominate our democracy. Having just overthrown a tyrant in the form of George III of England, they were suspicious of corporations as another form of tyranny. In fact Thomas Jefferson wrote directly about this threat to the republic in no uncertain terms: “I hope we crush in its birth the aristocracies of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country.”
The King’s reviled economic representative to the Colonies was the British East India Company. “Taxation without representation,” was a rallying cry against this first corporation, and ended with patriots throwing its chests of tea into Boston Harbor on December 16, 1773. I say that your decision amounts to abetting the same forces of domination and tyranny that patriots demonstrated against that night in Boston and wisely sought to stem in our Constitution. I even wonder whether you would rule against these patriots if you sat on the King’s court.
All the constitutional issues in this case have been thoroughly discussed and settled in rulings that have limited corporate electioneering, including McConnell, Buckley and Austin. This includes the fact-finding in McConnel of the levels of corruption and the inability of true citizens to keep their elected officials accountable when corporate electioneering is allowed to dominate, despite your judicial puffery and protestations to the contrary. If anything, the concentration and scope of power of corporations is even greater today with even greater need for protection against their dominating and corrupting influence in elections since these decisions.
You and the Supreme Court Five have defied any notion of judicial restraint. You have pole-vaulted over precedent and stare decisis right into… Boston Harbor with all those other chests of corporate tea and tyranny.
The Founders took the rights and responsibilities of the citizen and citizenship very seriously. Alexis de Toqueville in Democracy in America, remarked that it was this very civic and community participation of ordinary citizens that distinguished American society and democracy -- and was a unique source of its strength. Constructive participation in civil society was seen as an essential responsibility of citizenship to the Founders and early patriots. I am sure from your knowledge of American history that agree that this is borne out by the lives of Thomas Jefferson, Benjamin Franklin, George Washington and so many other both men and women. One could even reasonably argue that this very revolutionary idea of the citizen as opposed to a subject is the very basis of our republic and its form of government and the guiding principles the Constitution.
Don’t you think, sir, that if the Framers of the Constitution put such a premium on the importance of the citizen, given that corporations were already a distrusted entity of the time, they would have spelled out in black and white in the Constitution that corporations are also citizens with attendant rights if they intended to do so?
Isn’t it abundantly clear to you that by ruling that corporations are citizens that you are violating both the spirit and the letter of our founding document, the Constitution of these United States? Not only is this a gross violation of original intent, it seems to me, it beggars common sense and rates as rank stupidity.
Corporate personhood is the Big Foot of legal theory -- there have been many sightings but no one has been able to bring forth any reliable evidence. By elevating corporations to persons with the rights of citizens you have cheapened citizenship and debased the Supreme Court and our system of laws.
In fact, not only did many of the Founders have a deep mistrust of corporations, they also promoted a social charter for these non-human, non-citizen legal shells, with the corporate license liable to revocation if the corporation were found to be detrimental to society and did not enhance the public welfare. I also imagine that you would vehemently oppose any form of social charters for corporations.
For these community-oriented, civic-minded Founders, commerce was a means to prosperity but only one element of society, one that must find its proper balance with others in our democratic society. Public welfare, specifically promoted in the Constitution, is another principle, based on the economic and social justice proclaimed in the Old and New testaments. These pragmatic idealists knew that any form of self-government will be prey to tyranny and would not long endure if there were not justice for all.
Reason and the natural law of the Enlightenment are other foundational principles of our republic. Natural law has roots in humanism with the human being the measure of all things. But by awarding corporations unrestricted First Amendment rights as ipso facto natural persons, you are both defying both reason and perverting the essence of the human being and humanism.
Corporations are insensate, artificial constructs whose prime directive is to capture maximum profit and market share. These artificial entities cannot hear that “still small voice” of conscience, and, for the faithful, they are devoid of that divine spark that links us to the Creator. That Creator, according to The Declaration of Independence, who endows each human citizen with those “unalienable Rights,” we cherish as Americans.
The Founders knew that the democratic government and society they hoped would endure are bound together by bonds deeper than commerce, values more fundamental than markets. The American Dream that has evolved from “the pursuit of happiness,” is not the relentless aggregation of wealth, property and power of the corporation in the hands of the few but is ever expanding opportunity for the many to express their full human potential. This is “the greater union,” the American promise.
But your decision, sir, and that of the majority, collapses all these values and aspirations around greater power and political influence of corporations. This market fundamentalism destroys that delicate, living balance of the democratic society the Founders sought to secure, and opens up a black hole of corporate power, corporatism and tyranny.
The two totalitarian governments of the last century came to power by not only by denying the democratic rights of its natural citizens but by destroying the spiritual and humanistic foundations of their society, opening the way to the social criminals, Hitler and Stalin. You, sir, by making a mockery of the citizen and natural person, are destroying the very foundation of our republic with your extreme ideology and fundamentalism, placing it on pillars of sand.
If you think I exaggerate, think of the enormous problems this country faces such as the insurance-healthcare crisis and climate change. Now consider which forces are blocking reasonable and timely solutions to our economy, health and social cohesion. Are they not the entrenched interests of corporations, which you have just given the opportunity to elect representatives and judges by this gambit of corporate free speech and personhood?
In today’s corporate parlance, destructive effects on society and influences of corporations are called “externalities,” or “negative externalities.” Armies of lobbyists in Washington seek to make sure everyday that the price such negative externalities are borne by the individual citizen and society alone. Or they use their vast amounts of funds to buy “speech” in the media or to pay for dubious studies to try to minimize these externalities or to convince the public that they do not exist. Take for example the tobacco industry’s decades-long campaign to convince citizens that there was no link between smoking and cancer. Another example is Big Oil’s campaign to cast doubt on science, led by Exxon-Mobil, costing tens of millions of dollars. This expensive corporate speech “speech,” flying in the face of overwhelming consensus among scientists, has sought deceive the public as to the source and threat of global warming and to shift responsibility away from corporations to be borne solely by citizens.
By opening the floodgates to virtually unlimited corporate spending for what will certainly be in today’s highly partisan environment, a deluge of attack and distorting ads against those political candidates who stand up for citizens against the power of corporations and their negative externalities, you are siding with he very forces of domination of our democratic process and tyranny that the Founders and Framers of the constitution warned against -- in effect empowering corporations to dominate the democratic process, ensuring corporate capture of elections. It is as if you are saying, “the business of the Supreme Court is business.” I hear in your decision that the role of the Supreme Court is to protect society’s powerful from the weaker. I hear that corporations are king.
You argue in your opinion that corporations are associations of citizens and by extension deserve the rights guaranteed to citizens in the Constitution. But corporations are not the Elks, the local rowing club or friends of the library, a funeral society, consumer protection society, or a political association. They are not democratic institutions that generally consult their stockholders or workers about advertisement. They are not even the Republican Party whose overriding purpose and aim in recent years has been by all evidence to protect the power of corporations. Your ruling, sir, is a ruling that advances the Republican Party goals, to protect and augment the power of corporations to dominate our electoral process and our democracy.
As a citizen, I feel it is my patriotic and sacred duty to shine light on corruption at the highest level, to speak truth to unchecked power no matter how lofty and unchecked. To quote Thomas Jefferson again: “All tyranny needs to gain a foothold is for people of good conscience to remain silent.” You might take umbrage at my use of the citizen’s right to free speech. You might argue that Supreme Court Justices are not politically partisan but only interpret the Constitution. I respectfully submit that the then Court majority have shown your partisan colors in no uncertain terms when you and the other republican members appointed George W. Bush president of the United States in 2000 under a cloud of election fraud in a brazen departure from the very judicial values you purport to uphold; that decision brings shame on the High Court forever.
George Bush admitted that he believed that God wanted him to be president. Given his disastrous legacy, I think that George Bush should have sought a second opinion before answering that voice in his head. But you and four other hypocritical justices sent him sniggering all the way to 1600 Pennsylvania Avenue into the arms of neo-cons, militarists, religious fundamentalists who would abolish the separation of Church and state (Christian right extremist officials were Bush. Jr.’s electoral shock troops), torture, and God knows what else in bringing war and debt from peace and prosperity upon us. And with a sense of entitlement like that, what use did George W. Bush have of the Constitution? Citizens were subjects to him, it seems to me, judges and the judicial system his servants.
But in fact George W. Bush was a servant to the same earthly power that you seem bent on serving to the detriment of the public’s constitutional rights and protections: corporate power. I submit that you betrayed the Constitution, the electoral process, and democracy at the highest level, all in the interest of corporations and corporatism.
You say that the settled law you voted to overturn amounted to censorship. I ask you how voters can make informed decisions when one side by their enormous power of nearly unlimited funds, can talk for the equivalent of entire days while the other side can merely say hello. Doesn’t your decision in fact amount to censorship when the very volume of corporate speech in elections drowns out the arguments of the non-corporate side out?
Isn’t our legislative process already endangered when lobbyists for these very same corporations vastly outnumber our representatives in Congress? By giving the green light to corporations to dominate the electoral debate in the media aren’t you giving a grossly unfair advantage to these special interests?
You could well argue that they role of the Supreme Court is not to balance inequities in society but to rule on Constitutional issues. But are you saying that the Supreme Court has no accountability to social ills that its decisions might bring about? Do you believe that you are not accountable for the certain damage to the electoral process and democracy will result from by giving corporations and the party that predominately represents them unfair advantage in the electoral? You can try to hide behind the magical thinking of corporate personhood and the First Amendment but the ill effects of The Supreme Court Five on democracy and our republic will remain as toxic.
I would like to bring to your attention the tragic irony that these corporations -- which you and the Supreme Court Five have outrageously awarded citizen’s rights by arrogating to yourselves the god-like powers of bestowing personhood -- that corporations by their true non-human and non-citizen nature are accountable only to their bottom lines. In fact corporations are legal shells created to shield their officers from legal accountability before the law. By their very charters they are amoral actors in society. Witness the recent economic meltdown where Wall Street bankers were only accountable to their corporations’ bottom lines that evidently could never be large enough to satisfy their greed for outsized bonuses.
I submit that how we are accountable to one another in society is as good a basis for a system of law as any. And further that the wisdom accrued from long experience dictates that we live in relationship to once another in society. And that the Founders and Framers of the Constitution knew that commerce is but one part of a free and equitable society, not its dominating feature. Anything else would be despotism. But in your grossly unwise decision, you have given commerce and its protected form, the corporation, favor over the other elements of a free and just society. You have ruled for market fundamentalism and corporatism. You, by your decision, have ruled for despotism.
Before you rule next time for the rich and powerful in society, arguing that you are not accountable for the effects of your actions on society like corporations, please take the time to ponder how democracies have failed through the concentration of power and ideological extremism.
Benjamin Franklin was asked after exiting the Constitutional Convention what the delegates had wrought. “A republic, sir, if you can keep it,” he answered.
You might also take as an object lesson that every atrocity of the Nazi and Soviet regimes was legal in the eyes of their own legal systems. Judges in Nazi Germany were in ideological conformity with the genocidal, war-mongering Third Reich; in he Nuremberg trials they pointed out that their decisions were in fact legal, that they were interpreting the law. Judicial robes can cover many sins, it appears.
You, sir, in your total lack of judicial restraint and extreme legal activism, have gone a step further than these judges. You have overturned settled law for extreme ideological purposes. The ideology is market fundamentalism, utterly excluding its effects on civil society, We The People.
I wonder whether The Founders, including Thomas Jefferson, who were so skeptical to say the least of corporations, could have imagined the power of Madison Avenue today, its use of modern psychology to create need and brand loyalty, its intellectual and emotional predation into the political sphere, its use as a tool of social engineering. Could they have imagined the misinformation, lies and hatred shouted into the living rooms of this nation by 24-hour “news” TV in harmony with the constant, often vile, talk radio that inspired it?
Defenders of your decision to let loose what will surely be in today’s political environment, a torrent of this sort of deeply manipulative and mendacious advertising by corporations during political campaigns argue that it is not the responsibility of the Supreme Court to ensure that American voters do not fall under the sway of the power of this sort of attack ads or to limit their untruthful or deceptive contents. If corporations are treated for what they are in fact, legal shells, they would have rights, not to The First Amendment as citizens but as business entities that compete in the marketplace by advertising in any media as long as they do not disseminate untruthful, deceptive or misleading statements before the public.
But Eureka, you and the Supreme Court Five, found it! Let’s make corporations persons and citizens so they can buy without limit political advertisements and disseminate untruthful, deceptive and misleading statements about candidates before the public. Let these corporate-person Frankenstein monsters have unfettered access to the powerful tools of Madison Avenue in political campaigns, dwarfing any other organized association of true citizens to counter these deceptions and lies.
Aren’t you saying by your decision that we are all equally entitled, as citizens, to Free Speech but corporations are more equal than everyone else?
You are employing a legal shibboleth, it appears, this great shining lie of corporate personhood to empower corporations to attack, deceive, and lie in a such a prodigious way before the public, against which other opinions and corrective voices cannot hope to compete. I say that you and the Supreme Court Five by this legal slight of hand are making our entire society the children of the lie.
You might consider at this time how totalitarian regimes came to power by drowning out the voices of reason, civil society and democracy in a carefully orchestrated campaign of fear, hatred, lies and ideological extremism. You and other defenders of this radical and disastrous decision can argue that it is not the responsibility of The Court to consider whether the American public has the power of sufficient critical thinking to see through the influence of Madison Avenue on steroids that you have unleashed on the public.
Hermann Goering famously declared that if one repeats a lie that is big enough, enough times, the public will believe it. Add fear and hate mongering to the big lie, and you can get people to go along with one’s designs. Does this remind you, sir, of recent political practices, media techniques and social engineering? The Weimar Republic fell before Hitler’s henchmen burned down the Reichstag.
Public education might be the remedy for this grave social harm. In fact Thomas Jefferson foresaw that democracy needed an educated public to protect our republic from demagoguery, emotional appeal and the appeal of tyranny if citizens were to make reasonable choices in their votes. The Founder said that second to the Declaration of Independence, he was most proud of founding the University of Virginia. Yet, as I write, the same powers of market fundamentalism seek to privatize our public universities as I write.
Before absolving yourself of any responsibility for the tyranny your decision could very well unleash on our republic, please take into consideration, how the techniques of today’s advertising, fomenting suspicion, fear and hate in our current political system and society are so much more sophisticated than that of the Soviet Union and Nazi Germany, like comparing a Masserati to a Ford Model-T. Now consider how the magnitude and power of the corporate money you have just unleashed will serve to drown out the voices of reason and civil society in the tsunami of these extremely sophisticated attack and manipulative political ads.
You and the majority have succeeded not only in impairing democratic integrity, you have swift-boated our republic and the cherished principles for which it stands.
I ask you to ponder, given these facts, if we can keep our republic or if it will become a democracy in name only at the service of amoral ‘personhood’ corporations and their extreme ideological supporters?
Justice is blind, they say, but is it willfully ignorant of the effects of its actions, even when ideologically extreme and politically partisan?
If you have any doubt about the purpose and responsibilities of our republic to its citizens, please read and reread the first sentence of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
We can substitute “human beings” for “men,” given the evolution of society. But the author, Thomas Jefferson, did in no way mean “corporations” or to include them in any way.
If you have any lingering doubts about the purpose of the Constitution, please read and reread its preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and Posterity, do ordain and establish the Constitution for the United States of America.”
The delegates at the Constitutional Convention did not write “We the Corporations.” Perhaps an agent of the British East India Company might have substituted “corporations” for “men” and for “We the People.” But such a move would have provoked a tremendous outcry that such conceptions violated the establishment of Justice and was an affront to Liberty and her Blessings.
Isn’t this why Thomas Jefferson advocated eternal vigilance against tyranny? Isn’t this why we had a revolution in the first place?
I respectfully suggest that you take a hiatus, a long one, to sufficiently ponder the purpose of these two founding documents and your role in helping destroy the very life and marrow of the greatest republic, the greatest experiment in democracy, self-rule of, for and by We the People, that history has ever seen.
And may God bless America in this perilous hour.
Sincerely,
David Z. Weinstein, MA
