History Will Judge

11/11/2009 05:12 am ET | Updated May 25, 2011

Lost in the uproar about whether Rep. Joe Wilson (R.-SC) displayed bad taste or patriotic vigor by calling the President a liar was the spectacle, earlier that day, of Supreme Court Justices soiling their honor, that corporations might own us more thoroughly.

The subject is no legal quibble: If there's one topic Americans of every political stripe agree on, it's that corporations in this country have too much power. While there's a strong argument to be made that forcing the issue now is a desperate attempt by radical ideologues who know the jig is up, the fact that Right Wing judges are even addressing the matter this way makes you wonder what the people behind them were really up to in the first place.

This display of political greed at the Court was Citizens United v. Federal Elections Commission (Docket No. 08-205) -- yet another naked example of judicial activism from a Roberts Court apparently determined to twist the facts and the law against ordinary citizens.

The irony of Right Wing judicial activism seemed lost on the Justices, who had heard the case earlier this year, but asked the parties to re-argue the case, on new grounds of the Court's choosing: They apparently felt that deciding whether we should jettison a hundred years of case law and precedent, and give corporations the right to meddle directly in political campaigns, was an urgent national interest.

Which side was addressing the real issues of the case was made immediately clear when Justice Scalia wondered if established law is an intolerable burden on the political rights of auto mechanics, while Justice Ginsberg forced Ted Olson, who represented Citizens United, to confess that a victory for his clients would give foreign corporations with American subsidiaries -- Russia's Gazprom, for instance -- the same right to play in American elections as you and me.

This bizarre but plausible prospect--and I'd like to see what Vladimir Putin would do if the case was reversed -- is possible because in America, corporations are people under the law, and have been since at least 1886 (Santa Clara County v. Union Pacific Railroad). American corporations so abused that advantage to grab political power that the idea became an issue in Teddy Roosevelt's 1904 Presidential campaign -- he'd accepted secret corporate contributions -- and gave birth to the 1907 Tillman Act, which is the wellhead of all of America's campaign finance legislation.

That the Court's Right Wing members earnestly swear to uphold precedent during their confirmation hearings, yet abandon said pledges the moment they put their hand on the Bible, tells us a lot about what these people are made of. The record shows that Justices Roberts, Alito, Scalia, Kennedy and Thomas have omitted no opportunity to, as they apparently see it, correct the balance of power in established law -- not to mention abandon common sense and equity -- in favor of large concentrations of power. This, despite the fact the Founder's Original Intent, long the Right Wing's touchstone, had the opposite goal.

Whether this discrepancy between their sworn testimony before Congress and their acts is grounds for impeachment is a subject for Constitutional scholars; doubtless, these men believe they're both acting in the name of a higher truth, and within the true law. There's no evidence they're stupid.

But their willingness to microsize their reputations in the history books is another matter. Legal scholars -- not to mention Supreme Court Justices--all appreciate that every word they commit to the record takes a life of its own, and that history will judge them, whatever explanations they offer to their contemporaries; after all, they've all studied Cicero, the Roman Republic's greatest lawyer, and know the marks they leave on American law will likewise persist.

Certainly, they must know that their bedrock belief about the Constitution -- that no rights or powers exist unless enumerated in the document -- was exploded by James Madison, its father, in The Federalist, #44. That essay says point-blank that "Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce...."

They probably also know that according to the Book of Revelations, all liars go to Hell.

Looked at that way, you really have to wonder whether these Justices are in the service of powers determined to remake America to their advantage, and devil take the hindmost; or if they respect themselves and want to make good law.

Luckily for the country, these Justices are intelligent, educated men with lifetime appointments who can do as they please from the Bench. And this goes double for Justices Roberts and Alito, who are reportedly undecided about ruling in favor of Citizens United. They know that they don't have to undermine the American republic if they don't want to. And as individuals, they not only can respond to the will of the American People; I believe they would, given the chance.

Dangers like Citizens United v. FEC evaporate in the glare of public scrutiny. And so far, citizens are permitted by the Constitution to petition the government on subjects of interest. If there was ever a case to be made for doing that, this is it.