Obama Versus the Supreme Court
The Supreme Court’s power has become virtually unchecked: Amending the Constitution to reverse an erroneous Supreme Court decision is nearly impossible, and Congress has proved too timid to use the other weapons the Constitution provides to check the Court, including its power to restrict the jurisdiction of the federal courts. As a result, the Supreme Court has become, in essence, a permanent constitutional convention, and a Supreme Court majority has the power to announce a new interpretation of the Constitution whenever it chooses. Such a decision will strike down all laws contrary to the new interpretation, however venerable those laws may be and however flimsy the rationale the Supreme Court majority has devised for its decision.
This all used to be widely understood on the American right. If President Nixon had used the 1974 State of the Union Address to upbraid the justices who had struck down all laws prohibiting abortion the year before, by quoting Justice Byron White’s description of the decision as an “exercise in raw judicial power,” American conservatives would likely have applauded. But when President Obama used this year’s State of the Union Address to take the Court to task for its decision in Citizens United v. Federal Election Commission by saying that it “opened the floodgates for special interests—including foreign corporations—to spend without limit in our elections,” conservatives expressed horror. Obama was widely accused of lying about the Supreme Court’s decision, which struck down as unconstitutional a federal law that had prohibited corporations from using general treasury funds to advocate expressly for the election or defeat of a candidate, and of showing lèse-majesté by criticizing the Court at the State of the Union. George W. Bush’s solicitor general Ted Olson (who is now asking the federal courts to manufacture a constitutional right to homosexual “marriage”) described Obama’s remarks as a “disappointing attack on our independent judiciary”; Sarah Palin told FOX News that Obama’s “embarrassing our Supreme Court” was going to be the “takeaway moment from the speech tonight”; and Ramesh Ponnuru opined at National Review Online that the President’s attack was “demagogic.” Obama’s remarks were still making news in early March, when Chief Justice Roberts, visiting the University of Alabama, called Obama’s criticism “very troubling.”
To be sure, Obama—who raised a record $745 million in his campaign, tossed aside his promise to abide by the campaign-finance limits imposed on publicly funded candidates, and was the beneficiary of George Soros’s largesse—is hardly a credible spokesman for campaign-finance reform. But Obama’s remarks tracked the substance of Justice John Paul Stevens’ dissent, which three other justices joined. Stevens wrote that the decision in Citizens United “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.” Indeed, even critics of Obama’s remarks conceded that the decision appeared to remove the limits on U.S. subsidiaries of foreign corporations making independent political expenditures, and the majority in Citizens United noted, “We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process”—meaning that a future Supreme Court majority might indeed rule the way Obama and Stevens predict.
The notion that Supreme Court justices enjoy too little deference is hard to sustain. They live in a bubble, free from sharp criticism. Lawyers practicing before the Court are, of course, greatly deferential, and justices’ appearances in public are substantially limited to such venues as bar associations and law schools, where the reception generally ranges between sycophantic and adulatory. The discomfort caused by pointed criticism of the Court may be the best hope we have of checking its power, at least until Congress is willing to start limiting the jurisdiction of the federal courts.
It is hard to see how genuine conservatives benefit from removing limits on corporate political expenditures. Generally speaking, dissident conservative candidates have been forced to rely on small individual donors because their views are distasteful to the economic elite. Such candidates have been harmed by the increasing cost of campaigns, a problem that Citizens United greatly exacerbates. A Pat Buchanan or a Ron Paul would benefit little from the corporate expenditures the decision permits. But it is easy to imagine multinational corporations using their economic power to destroy candidates who question free trade, Wall Street firms banding together against candidates promoting financial regulation, banks propped up by the Federal Reserve seeking to throttle candidates wanting to audit the Fed, businesses using immigrant labor uniting against candidates who want to restrict immigration, and even firms in Silicon Valley seeking to punish candidates who oppose “gay marriage.” It is very unlikely that Justice Stevens was motivated by these concerns, but his dissent was correct: “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
This article first appeared in the May 2010 issue of Chronicles: A Magazine of American Culture.
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The so-called "checks and balances" among the branches of the general government never were or have long become meaningless. Among the things which the states through the Constitution brought into being, whether intende or unintended, is an abstract monarchy or crown. Rather than a live king such as George III, we acquired an abstract king with three heads - a "trinity" if you will: god the Congress, god the President and god the Supreme Court. Unlike the Trinity which we Christians serve, a Trinity in which there is no turning, the trinity which has emerged out of the Constitution is set to squabbling amongst themselves, more like the gods of the pre-Christian pantheons.
We mortals should actually tremble when these gods are feuding. The result, regardless of which god comes out ahead in the vendetta of the moment, is usually a loss of liberty and of quality of life for us.
Corporations struggled through our "Ferderalist" and "Whiggish" eras to gain the ultimate access to the gods of the general government. They attained that goal with Lincoln and the Republicans, replacing a union of constitutionally federated republics with a Hobbesian centralized and consolidated state, having a monopoly on coercion and the ability to define the limits of its own power. This "encounter" does not change that in the least.
While the opinion of the dissenting judges on the issue of campaign financing strikes a sentiment in me, it hardly means that they of the dissent on this issue intend to descend from the holy mount and become mere mortals with us. Obama's remarks were merely a superficial attempt to play to the left and a disingenuous ploy to stir populist emotions against corporations, corporations to which he and his party are utterly beholden just as are the Republicans.
Thus, do I understand the tête-à-tête between these two gods of the unholy trinity in the presence of the third as being nothing but "malus" for those of us who value liberty and good governance. The encounter between the President and the Supreme Court is, for the cause of liberty and good governance, but a tempest in a teapot, a teapont lying at the bottom of a sealed and rusting truck sitting in the molding attic of a decaying house sinking into the Nietschean abyss.
Tom Piatak's article is as trenchant on a second reading as it was the first time I read it. His claim of the Supreme Court being a "permanent constitutional convention" is right on.
I would add that Mr. Piatak could have included all courts, and not just the Supreme Court, as receiving undue deference. A recent case has struck me as typical in judicial incompetence. A Florida oil rig worker named Joe Stacy divorced his wife Stephanie on April 28 of this year, six months after originally petitioning. Stephanie had deserted the family and moved west months previous to the divorce petition, apparently even trying to become a Las Vegas nude dancer. Mr. Stacy wanted full custody of their four year old child, Ethan, as Stephanie had show a lack of responsibility in raising Ethan and Mr. Stacy's two children from a prior marriage. However Stephanie, now living in Utah with Nathanael Sloop, petitioned for shared custody and was awarded little Ethan for the summer by Judge Maura Smith despite overwhelming evidence that Stephanie was an unfit mother with an erratic, unstable personality. Tragedy unfolded from there. Nathanael Sloop beat and scalded Ethan Stacy over a period of a week, taking off only to wed Stephanie on May 6. By May 9 Ethan was dead and his little body was tossed into a canyon by the Sloops. He was buried yesterday in rural southwestern Virginia, where Joe Stacy is from.
In this dysfunctional country of ours, judges are often having to resolve dilemmas that are not easily resolvable. The Stacy case does not seem to be one of these as Mr. Stacy showed responsibility and love towards Ethan while Stephanie Stacy Sloop abandoned the boy in 2009. That Judge Maura Smith failed miserably in her duty seems indisputable. Yet it is my guess that she will continue to don the gown of a judge as long as she wishes and without criticism, armed bailiffs at her disposal to demand subservient deference from her subjects in her court room.
Thank You, Tom! The last paragraph is the most honest assertion made by a conservative lawyer I have heard in years. If I were President for a day, I would nominate Dr. Clyde Wilson to the Supreme Court based on his noble representation of what is left of WASP America, his record of scholarship, his historical understanding of what is good and bad about the separation of powers, his sympathy and understanding for the Southern states, and to eleminate so many of these 5 - 4 decisions. God knows with Clyde on the Court, there would be more 8-1 decisions in which the ordinary citizen could read and understand a real dissenting view, as exemplfied in your last paragraph. Thanks much for another good piece of writing.
Mr. Piatak, great piece. We are on the receiving end of a government gone mad. A republic...and we couldn't keep it.
Great article. I haven't read Citizens United--I gave up reading (and writing about) constitutional law early this year--but I can well believe the Republican appointees are too partial to big business. I believe, by the way, that not only is it implausible to regard corporations as constitutional persons but it's impossible to do so.
I mangled the previous post. I meant it's impossible for corporations to be rationally regarded as persons. A few months ago I wrote a very short philosophical piece about that which I think proves the case.
The First Amendment says, inter alia, "Congress shall make no law...abridging the freedom of speech." Leonard Levy showed in Legacy of Suppression (1960) that, in line with 17th century Whig theories of freedom of speech, these words were intended to deny Congress the power to pass laws ordering prior restraint of speech or publication. Levy argued that this view was well understood and shared among Whigs and was not violated by the careful language of the Alien and Sedition Acts, whatever was said against them by Madison, Jefferson and their minions. The majority decision in Citizens United was in line with the original intent of the First Amendment, since McCain-Feingold is a law made by Congress and the sections the majority ruled against order prior restraint of speech. Defenders of the rule of law should applaud judicial decisions made according to the original intent of the words of the Constitution.
#3. Robert, thanks for your kind remarks. The game was up by the early 1800s when the Constitution became the property of lawyers and judges rather than the property of its rightful owners, the people of the States.
People look in all the wrong places for original intent---previous court decisions, the deceitful polemics of The Federalist (which has no authority whatsoever) instead of where the original intent can only be found---the ratification by the people of the States. "Original intent" jurists like Robert Bork don't have a clue what the Constitution means anymore than the leftist crazies on the bench.
"I mangled the previous post. I meant it’s impossible for corporations to be rationally regarded as persons. A few months ago I wrote a very short philosophical piece about that which I think proves the case."
Is it online?
"the original intent can only be found (in)the ratification by the people of the States"
Which reminds me, thank you, Dr. Wilson, for recommending Bradford's Original Intentions.
For anyone who has yet to read this work and is interested in the meaning of the Constitution, read Bradford's Original Intentions - it will take you less than a page to understand why it has earned the good Dr. Wilson's approbation.
"Defenders of the rule of law should applaud judicial decisions made according to the original intent of the words of the Constitution"
I think it is possible to agree with the decision while being wary of its ramifications. I came to agree that the decision was the correct one, but rue that it will magnify corporate influence over the general government, if it's even possible to magnify something that seems already to be absolute.
While corporate control of Washington is a problem, the solution is not, I believe, to abridge the influence of corporations, but rather to abridge the influence of Washington.
However, it is regrettable that the only Constitutional "victories" we seem to be allowed are those that may arguably do us more harm than good. I agree with the decision, but cannot celebrate it.
I well agree that the court's decision is of questionable utility to conservatives. But the issue of regulating speech should not depend on either utility or whose side you are on. Realistically, limits on this type of speech are impossible to enforce except in a draconian and arbitrary manner which will also chill legitimate speech. There are no fine lines between "foreign individuals and associations" and presumed "American" ones. And there is no way to delineate a human person speaking, solus, from a human person speaking only because he is funded by a corporation. Thus, in other contexts and traditionally in this country's jurisprudence, 1st Amendment issues have always been given a wide swath.
The real problem is the assumption that ads, spending, aggressive advertising campaigns, etc "cause" the electorate to behave in disagreeable ways -- and that in search of a better, perfectable world we should "fix" it. Now, of course, it may be in fact be true that advertising "causes" bad public policy, with scientific accuracy like the collision of 2 inanimate substances. One is entitled to the opinion that our allegedly enlightened free citizenry, after a couple hundred years of our American experiment, are yet no higher than the level of rats in a Skinner box. Doubtless, given the sort of "studies" commonly trotted out these days on everything from cholestoral to the effect of violent TV, this proposition may indeed be eminently verifiable, as the current optic goes. For all I know it has already been "verified". But the constitution is simply not based upon such assumptions equating human beings to water droplets -- original intent or any intent. It is based on ideas of "ordered liberty," and the presumed beneficial effects of learning, liberty, etc. -- beneficial, at least, in the context of certain very sober attitudes about human nature shared commonly at the founding (unlike, apparently, now). Simply, government was not thought "safe" for regulating speech, period. For if humans were not perfectable or on the road to utopia, government too would also be composed of such humans, and armed with hairs to split about speech it would be a menace. The 1st amendment, in short, is a plant grown from such attitudes and beliefs about people, and one cannot expect First Amendment interpretation (if consistent with the document) to presume otherwise -- i.e. that some source of speech is inherently and integrally "bad" and needful of government control, that people would be on a better road to utopia with such "benevolent" controls in place, for their own good.
This is not, incidentally, to argue that all the 1st amendment jurisprudence -- much less the truckloads of any & all other constitutional jurisprudence -- are in whole or in part consistent with the nation's underlying assumptions. Many obviously are not. But in rough basic cut, the result of Citizens United is. As to its rationale, any lover of liberty ought to know better than to actually read Supreme Court decisions for common sense, wisdom, enlightment, guidance, etc -- indeed since Day One of this country.
Regarding syncophantic & adulatory behavior toward Supreme Court judges, yes, it is too often sickeningly true. And worse by the day. As such behavior also is -- from the viewpont of one, like Mr. Pietak, who has labored in our court system for decades -- seen just as commonly toward all other judges all the way down to traffic and small claims court. That is the result of legal culture. The unfortunate fact is that legal culture has largely replaced American culture -- just watch the news local or national, it's all anyone talks about. As Solzhenitsyn warned at Harvard, it takes much more than the cold rule of law to make a society. This one is flying apart like a pinwheel. But again, what of our original assumptions? Is it not more the case that it is these themselves which have been lost, like the glue falling out of old book bindings? Perhaps even, rightfully lost? This heresy -- that the American idea of freedom is either ludicrous or dangerous -- no one wants to speak. And the great failing is that not one of us, Mr. Pietak, myself, or anyone else with or without a law degree, can hope to confront it head on in the literature of our profession, general literature, on TV, or frankly anywhere. At this website, which I much admire, there is nothing if not a more agressive, than usual elsewhere, affirmance and assumption of the "rights" of free people -- especially when it comes to post 9/11 measures. Do you ever hear anyone say that it is our own fixation on individual liberty, as the Prime Directive, which is near the root of all our simultaneous meltdown?
Whether we ought to abandon the founders' assumptions is a question I can't answer, anyway. But it is an ominous question. Yet if we are going to go in the opposite direction, and encourage open baiting of judges by smarmy politicos as at the State of the Union (the lemmings will follow in short order, in the Skinnerian model), what then?
I can only observe that, in my 33 years legal experience (which for all I know is limited) the sort of facial expression, tone of voice, and absolute brazeness exhibited by the One on State of the Union night is usually only observed in the following cast of characters, in roughly this order: (1) criminal defendants in full jumpsuit; (2)the very lousiest attorneys; (3) sundry litigants whose causes are headed straight to failure. But yeah, it quite makes me sick too, the syncophantic stuff particularly, of which all our bar associations are coated like ripe week-open jelly jars. But considering, primarily, that human beings are not perfectable (an opinion few of us, apparently, yet openly hold), what are the fruits of going another way, encouraging other behavioral modes toward the symbols of domestic order? No, syncophantic isn't good, it's terrible. But consider the alternative. And consider it carefully, for it's right around the corner.
It's just a distraction, which leads towards arguing about a lost cause--see Dr. Fleming real politics.
Remove the individual limit, certainly a restriction on free speech, and give the resistance a chance to fight with some fresh tactics afforded by new technologies.
"At this website, which I much admire, there is nothing if not a more agressive, than usual elsewhere, affirmance and assumption of the “rights” of free people — especially when it comes to post 9/11 measures. Do you ever hear anyone say that it is our own fixation on individual liberty, as the Prime Directive, which is near the root of all our simultaneous meltdown"
Yes, quite often - here. I don't know of any magazine or website which contains more trenchant criticism of the ideology of individualism and of the veneration of abstract rights than Chronicles.
"Whether we ought to abandon the founders’ assumptions is a question I can’t answer, anyway"
Which founders? Tom Paine's, Jefferson's, John Taylor of Caroline's, John Adams's? This was not a monolithic cast of characters with a unified ideology. There were Founders critical of the assumptions to which you allude from the very beginning.
The constitution, whatever other writers or even signors of the constitution said in personal writings, does not enact a utopia, nor set up an unending quest therefor. Nor does it endorse a utopia in the sense of a radical vision of individual liberty. You do not have to read beyond the 4 corners of the document to see that. Nor does the document endorse the political philosophy of any particular founder. The Federalist, or for that matter the Anti-Federalist or the writings of individual founders, are nothing more than an incomplete set of data and evidence of what people were thinking at the time. Lawyers are routinely teethed to endorse the view that Hamilton's defense of judicial review in the Federalist is direct proof of the constitution's inclusion of that doctrine. This is simply not valid because Alexander Hamilton did not write the constitution nor have power to verify it.
However, to a large degree the issue is secondary to my point, or moot. I agree with what TJF has said, in so many words, often at this site, in various contexts. As a matter of hard realism, the constitution of 1789 is dead. Political activists such as Ron Paul, quite apart from the issue of their personal honor or the admirability of their position, pushing mainly for "a return to the constitution," are an exercise in futility. But what I do wonder is, what do we now propose, if anything? Even mere naysaying to all comers, in the present climate, stops short of a dangerous position. Yes, the king might be dead. But there is yet something to honor in the passing. Because I share much of the skepticism about human nature reflected, I believe, in the constitution as written, I am disturbed when a president publicly behaves toward justices of the Supreme Court as occurred at the State of the Union. There is something fundamental to the entirety of civilization about honor for the dead, so to speak. But apparently now even the assumptions underlying Antigone are being thrown open. And I am quite certain that all founders -- Paine, Jefferson, John Taylor, Adams -- as much as they would have passionately disagreed about certain matters -- shared such a root sense of honor and decorum. Sending it up the flagpole ought to be seen for what it is, beyond the controversy of some particular passing controversy or court decision.
I remember William F. Buckley's remarks about a fantasy he had during the 1964 election. He envisioned president elect Goldwater being sworn in by chief justice Earl Warren. Warren: "Do you swear to defend the constitution of the United States against all enemies foreign and domestic?" Goldwater: "I do. You're under arrest, Warren." Except for a few pet amendments the Constitution is pretty much a dead letter when it comes to really maintaining federalism. We have allowed the Supreme Court do decide the limits of federal power and they more often than not support an increase of federal power. Instead of limiting federal power viz a viz the states, it is the reverse. The 10th amendment has been turned upon its head. John Randolph of Roanoke said that no paper document can ever protect the rights and liberties of the people. Unless there are institutions in society that have power to maintain traditional rights (church, unions, states, local communities, universities, etc) a piece of paper is not going to do it. I am afraid that Frederick Wilhelmsen was right when he said that America had a "Catholic body politic and a puritan soul." The puritan soul has overwhelmed the Catholic body politic and the concept of subsidiarity or federalism has been swamped to a great degree by statism.
As Dr. Wilson posted above, the meaning of the Constitution is within the context of what the ratifying states thought it meant when they signed it into law. To discard such documents as the Virginia Resolutions as meaningless is paramount to the overall confusion and dishonesty. The usurpations of the Supreme Court were foreseen by the Antifederalsts and were repeatedly pointed out and denounced from the beginning, from sources to numerous to name. But it was the final destruction of the party of Antifederalists and Jeffersonians that that led to virtually all of our problems today, no matter propaganda to the contrary.
MR. Flinn,
"I am afraid that Frederick Wilhelmsen was right when he said that America had a “Catholic body politic and a puritan soul.” The puritan soul has overwhelmed the Catholic body politic and the concept of subsidiarity or federalism has been swamped to a great degree by statism."
He was also correct when he wrote that Supreme Court decisions against any public manifestation of faith point to the general collapse of the West and its ancient convictions. But before the collapse, secularist law has four ways to do away with Christians: tolerate them if they are reduced to impotence, silence them, kill them or drive them out, convert us to godlessness.
And in another context he wrote that conservatives cannot cure the modern world. We have lost our kings and our chivalry; our craftsman are all gone, our peasantry is fast disappearing and our horses have been shot out from under us. We have nothing to offer the world but our vision and stories."
Thank God for Chronicles where a few brave souls can still tell their stories.
When I start my traditional Catholic college in Columbus, Ohio I will insist on at least one class where the writings of Professor Wilhelmsen will be studied. Any of you Catholic Ohioans out there, I am only partially kidding. Would love to see a "Christendom" type college established here.
I just don't like the cut of Kagan's jib. That short hair and those sensible shoes .... Ugh!
Indeed, Mr. Flinn, Robert has it right on Frederick Wilhelmsen. Check out, if you can find it, his wonderful Citizen of Rome. The book is a compendium of his writings over a period of forty years. I've read from it for the past twenty or so years and have always been instructed and guided. He is very much like Tom Fleming in the sense that he knows nearly everything and, like Tom, can tie it all together! Cannot be too highly recommended. Also, consider Flemings's The Morality of Everyday Life. These are the kind of books to keep around for a lifetime!
Regarding Tom Piatak's suggestion on employing Article III,sections I and II, of the Constitution to reign in the Supremes, I used to think that at some point, with the stars aligned, the Congress could clip the wings of the Court. Professor Steven Presser's piece in a Chronicles issue of last year, I think, would tend to disabuse one of the very idea, arguing that the provisos of the 14th Amendment have, in effect, amended the power of Congress in this regard. Would very much like to see more argument on this most important topic.
Dr. Wilson's comment on the fact that the Court cut it self away form the Constitution in the early 1800s is surely correct. John Marshall's tenure snatched away the meaning of the Union with his decisions in Marbury v. Madison and McCullogh v. Maryland, taking our country in a direction the anti Federalists suspected all along.
#22 David: I have read Citizen of Rome many times. It is one of my favorite book of essays. Unfortunately,that was several years back and my copy was a paperback and ended up coming all apart. I have been looking for a hardback copy but I am not sure it was ever in hardback.
Thomas Flinn is correct on interpretation of the constitution. It is nonsensical to allow a branch of the federal government to decide what a document intended to limit the powers of that federal government means. Unfortunately, checks and balances do not work. The three branches tend to work together to enhance and expand the government's power, not only at the federal level, but at state and local levels, too. However, if tomorrow a law was passed to return constitutional interpretation to the states, it would not change anything because those who hold public office at all levels are true believers in the power of the government to solve all of our problems. They believe the problem is not too much government power, but not enough.