Tag Archives: Supreme Court

Needed Changes

With Elizabeth Warren calling for the eradication of the Electoral College, one asks the obvious question whether it might not be as well to make a number of changes to our Constitution — a dated document that could well be strengthened. One obvious change would be to address the matter of the infamous Citizens United decision which has opened the road to corruption in the form of unlimited financial donations to selected candidates who will exercise the will of the corporations who support their candidacy.

The Electoral College, of course, was established during the founding years of this nation in order to guarantee that the very best people available would be elected to the highest office in the land. The founders didn’t really trust the people and they felt it necessary to have a buffer, if you will, between the people and the elected officials. Indeed, the representatives are the only group directly elected by the people in the original Constitution and the representatives were presumed to have short terms in order to go back to work after a brief spell at governing (which paid very little). The Senate was to be selected by the state legislators and the Electoral College would select the president — not the people themselves.

Recently, however, we have seen how faulty this reasoning was when the popular vote in the most recent election selected the best qualified candidate for president by nearly three million votes and the electoral college voted against the popular vote and selected a man who has proved to be entirely unqualified for the highest office and, at times, bewildered by what is required of him.

In any event, former Supreme Court Judge John Paul Stevens, who was appointed by a Republican President, wrote a book in which he proposed six amendments to the Constitution that would bring the document more or less up to date. Not only does the Constitution ignore altogether the immense power of the corporations, but it ties the hands of government in important ways. Furthermore, it lacks the necessary checks and balances to the power of the president — ironic because that was the major thrust of the document at the outset.

The first amendment Stevens recommends is an alteration to the “Anti-Commandeering” rule in Article VI of the Constitution which

“unnecessarily and unwisely curtails the power for Congress to make use of state officials in the enforcement or administration of federal law. It creates a serious risk that the federal response to national catastrophes or acts of terrorism will be inadequate; it also impairs the efficient administration of ordinary federal programs.”

A case in point was the Printz case in 1997 following the attempt on president Reagan’s life that would establish instant background checks to prevent felons and persons with mental problems from buying guns. The problem was that state officials simply ignored the court’s decision on the grounds that the Supreme Court cannot direct states officials in their duties. In times of emergencies, such as the shootings of the children and teachers at Sandy Hook, there needs to be a quick federal response that is not hindered by questions of States’ rights. In a word, the problem does back at least to the days of the “states rights” battles that preceded the Civil War and are still hiding deep in the words of the eighteenth century Constitution.

Stevens would also introduce amendments to the Constitution that would prohibit political gerrymandering; modify campaign finance laws in order to reduce “the power of the purse in determining the outcome of elections [see above]”; the elimination of the supposed immunity of state agencies or state officers from liability for violating an act of Congress; the inclusion of the words “the death penalty” in the clause prohibiting “cruel and unusual punishment,” thereby eradicating the death penalty in all states due to the fact that it does indeed constitutes cruel and unusual punishment. And finally, Stevens proposes the insertion a simple phrase in the Second Amendment making clear the founders’ determination to arm the militia but not the entire population of the country. The Amendment would then appear as follows:

“A Well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.”

The phrase in italics would be added and the original intent of the founder made clear. The Amendment is not about the right of every Tom, Dick, and Sally to bear arms. It is about the need for an armed militia to protect the nation from foreign enemies.

In the end, whether one agrees with Stevens or not, it is clear that a document written in the eighteenth century by remarkable men who had the best interest of their country at heart is today lacking in adequate protection from the very thing they most worried about: corruption and the abuse of power. Surely, it’s time for change. Let’s start with the Electoral College!

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The Real Villains

Bernie Sanders knew who the real enemy is — and it isn’t the Republican Party or our clown President. They are a mere diversion. The real villains in the political drama that is playing out before our eyes are the corporations. And because Sanders was becoming too loud he had to be silenced. The Democratic Party, which is funded by the corporations in large measure (as, of course, is the Republican Party) saw to it that his candidacy came to an end. He has been set aside and is now no more than a whimper, something the corporations can ignore because the rest of us can’t hear him, or refuse to listen.

The corporations are the modern face of capitalism and many of the criticisms by people like Mark Fisher (author of Capitalist Realism) are more properly directed at the corporations than they are at capitalism, per se. The corporations were recently allowed to come from behind the political curtain and declare themselves openly when, in “Citizens United,” the Supreme Court determined that corporations are persons and entitled to make huge donations to the political parties without having to do so under the table. As a result their cover is blown, but they are now beyond our reach because we do not know who the hell they are! That’s the problem, and that’s precisely why they are NOT persons: they are insubstantial and they cannot be found responsible for their misdeeds because they are like a shadow that suddenly is no longer there. Assigning responsibility to the corporations is like nailing Jello to the wall:  it cannot be done. They will be bailed out when in financial difficulty by the government, which they own, and if they should be discovered doing the dirty they will throw one of their own under the bus — or cover over the mess like the Valdez oil spill, with clever P.R. They are insidious because they are essentially vaporous and operate in secret.

Mark Fisher paints a vivid picture the Kafkaesque world of the corporations which is now our world. And toward the end of his book he outlines for us the effects of capitalism on the family and education — two of the pillars of our civilization — and the sorry state to which each has been brought mainly because of corporate influence. I quote him at some length because his message is worth pondering:

“It is the parents’ following of the trajectory of the pleasure principle, the path of least resistance, that causes most of the miseries in the families. In a pattern that quickly becomes familiar, the parents’ pursuit of the easy life leads them to accede to their children’s every demand, which becomes increasingly tyrannical.. . .

“The problem is that late capitalism insists and relies upon the very equation of desire with interests that parenting used to be based on rejecting. In a culture in which the ‘paternal’ concept of duty has been replaced by the ‘maternal’ imperative to enjoy, it can seem that the parent is failing in their duty if they in any way impede their children’s absolute right to enjoyment. Partly this is an effect of the increasing requirement that both parents work; in these conditions, when the parent sees the child very little, the tendency will often be to refuse to occupy the ‘oppressive’ function of telling the child what to do. The parental disavowal of this role is doubled at the level of cultural production by the refusal of the [corporations] to do anything but give audiences what they already (appear) to want. The concrete question is: if a return to the paternal superego — the stern father in the home — is neither possible nor desirable, then how are we to move beyond the culture of monotonous moribund conformity that results in a refusal to challenge or educate?”

Corporations remain out of focus in our world of constant entertainment and diversion — provided, of course, by the corporations (who also see to it that both parents must work in order to “provide for their families”). Thus the corporations are able to determine not only political but cultural outcomes while remaining  anonymous. And those outcomes are always about the same thing: profits for their shareholders and C.E.O.s. The shareholders themselves feel they are benefitting because they enjoy a higher standard of living and are able to take advantage of the diversions provided for them by  — wait for it — the corporations! It is a circle, and it is a vicious circle. Bernie Sanders saw this clearly. But his voice has been silenced. Will anyone have the courage to speak up — say, Elizabeth Warren? Or will her voice also be silenced as well before she can shout “wolf” loud enough to be heard by those who really don’t want to listen.

In any event, the notion that we live in a “democracy” is no longer tenable. In fact, we live in a tyrannical bureaucracy run by numerous powerful corporations that are above the law because they determine what the laws will allow or disallow. The founders worried about the influence of money on the tenuous threads that hold a Republic together, but they never, in their worse nightmares, imagined the power that could be wielded by giant multinational corporations. The Republic they envisioned, resting as it  precariously did on the balance of powers, has been replaced by the all-powerful corporations and the unimaginably wealthy few who run the show.

 

 

 

History Lesson

In the wake of the most recent spate of killings in a high school in Florida we hear once again the tired mantra “guns don’t kill people, people kill  people.” The whole thing is brushed aside as a case of poor mental health. And while there is some truth in this, since anyone who walks into a school and starts shooting innocent teachers and students has to be clinically insane, it remains a fact that guns DO kill people and automatic weapons kill a great number of people in a very short time. Let us now hush the mantra and the mindless dismissal of real causes to consider the fact that there is hard evidence that tougher gun laws do, in fact, reduce the number of gun deaths. This has been shown in the case of both Japan and Australia.

Those who insist that the possession of an automatic weapon is a question of a Constitutional right guaranteed by the Second Amendment need to read that amendment closely and consider the fact it was designed to protect the right of the militia to bear arms and that for two hundred years after the adoption of the Constitution federal judges uniformly understood that the right protected by the Second Amendment was limited in these two ways:

“.  . .first, it applied only to the keeping and bearing arms for military purposes, and second while it limited the power of the federal government, it did not impose any limit whatsoever on the power of the states or local governments to regulate the ownership of firearms.”

These are the words of retired Supreme Court judge John Paul Stevens who has written a book about the six amendments we need to incorporate into our Constitution. He goes on to point out that it wasn’t until very recently, 2008 in fact, that the tough gun laws that had been passed in this country to deter, for example, the sale of sawed-off shotguns and tommy guns to ordinary citizens were weakened somewhat when the Supreme Court, by a vote of five to four, decided in District of Columbia v.Heller that the second amendment protects a civilian’s right to keep a handgun in his home (not a tommy gun or an automatic weapon) for the purpose of self-protection. Then, as recently as 2010, by another vote of five to four, the Court decided in McDonald v. Chicago that the Due Process clause of the Fourteenth Amendment limited the power of the city of Chicago to outlaw the possession of handguns by private citizens. Stevens was involved in the discussion of both of these cases and he dissented in each case. He notes that

“. . .nothing in either the Heller or the McDonald opinion poses any obstacles to the adoption of preventive measures. . . . the Court had made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes like self-defense.”

In a word, Stevens reminds us that the Second Amendment was never designed to protect the presumed rights every Tom, Dick, and Sally to own and use weapons designed for warfare.  Stevens is convinced that the insertion of a brief clause in the wording of the Second Amendment might help clear this up. It would then read:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

That brief clause would make it crystal clear that the Amendment was designed to protect the right of those chosen to defend their country — in our case the National Guard — and not everyone else who now incorrectly makes the demand to own and use automatic weapons. The likelihood that this amendment would pass this Congress is very near to zero — given their obligation to the NRA and the gun manufacturers who got them elected and threaten them with the withdrawal of funding in their next political campaign, coupled with immense support for their opponent. Nonetheless, as Stevens points out, the states could pass tougher laws with no restrictions whatever from either the Constitution itself or possible legal precedents. Moreover, even at the federal level:

“. . . the Congress’ failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything the Supreme Court has said about that amendment.”

It is assuredly the case that the availability of guns does not, in itself, remain the main cause of the insane spate off shootings in this country. Guns alone are not the sufficient condition, as logicians say, of the gun deaths. But they remain the necessary condition in that if there were no guns there could be no gun deaths. And while the right to bear arms for self-defense and the shooting of game might be seen as protected by the Second Amendment of our Constitution, the possession of automatic weapons clearly is not.

It is time, indeed, past time, that we stop all the mindless drivel and pass laws that will take the guns out of the hands of those who are, admittedly, not fully aware of what it is they are doing, by making it impossible for them to purchase automatic weapons at the very least.

Corporate Power

I taught Business Ethics for many years and during those years I came across a great many reports of the abuse of the power of corporations. It became increasingly clear as I read and thought about this misuse that it stems from the fact that the publicly owned companies ignore the stakeholder because they are primarily (if not exclusively) concerned about the return on the dollar, i.e., profits that can  be paid out to shareholders (and overpaid CEOs who typically make 400 times as much as their  average employee). What I now take to be an obvious fact has many ramifications.

I have posted before about the oversight on the part of the founders who were so sensitive to the abuse of power and who simply did not see the possible abuses of power that might result from the millions of dollars the corporations rake in every year. — and this despite the fact that Jefferson, for one, was fully aware of the dangers of immoderate wealth in the hands of a few. But the founders simply couldn’t see this coming, clearly. They did realize, however, that the Constitution was a document that required up-dating from time to time; it is not written in stone. Henry Adam thought that when Grant was elected there would be a drastic overhaul of a document he realized was already out of date. But that didn’t happen. But, surely, one of the issues that needs to be addressed in our day is the abuse of the power of corporations that can simply buy elections and determine who is allowed to hold public office and what those who have been elected will do when in office (if they want to be reelected).

In 2010 the Supreme Court decided by a vote of 5-4  in the “Citizens United” case that corporations are “persons” and have rights of free speech as protected by the First Amendment. Under that umbrella, they were given the green light to contribute to political campaigns — which they have subsequently done, in spades. Elections were increasingly a battle of the rich against the also rich, but the contributions of the corporations — not to mention those who run the corporations — have upped the ante considerably. Now we find ourselves faced with continuous requests for money from candidates and political parties to “take on” the corporations — as though this can be effectively accomplished.

I don’t buy the notion that corporations are persons and I think the claim I have seen argued that, as persons, they might somehow be shamed into behaving ethically is a bit dubious. If the shame were to result in lower profits corporate CEOs would simply pass along the losses to the customers until the PR people could direct attention elsewhere and convince the public that no real harm was done. This was the case with the Exxon Valdez oil spill in the waters off Alaska a few years ago when Exxon sent a team of people up to the region of the spill where they cleaned up several hundred yards of oil from the shoreline and then had it filmed and used the film in a public relations campaign to convince customers that they had eradicated the effects of the spill. Ignored altogether, we have since discovered, were hundreds of yards of shoreline out of sight that remained covered in oil. It seems to be in the corporate DNA to do whatever it has to do to “right the ship” in the case of an accident and make sure the image of the company is not seriously damaged. They have public relations people who do nothing else but address this issue. And they have lawyers, who they often call “ethics officers,” whose job it is to see that they take no steps that could possibly end them up in court — because they identify morality with legality and pride themselves in “doing nothing wrong.”

The recent attempts by the current administration to weaken, if not eradicate altogether, the E.P.A. and other regulatory agencies is extremely disturbing because history has shown that the corporations will not police themselves and if their feet are not held to the fire they will do whatever it takes to increase profits, full stop. In an economy like ours regulations are anathema to the corporations and their highly paid officers. But from the public’s perspective they are essential.

Furthermore, those corporations should not be regarded as persons and given the right under the First Amendment to contribute to political campaigns. The founders missed this one, but we are becoming increasingly aware of the abuses of power by the corporations and the need to rein them in by limiting their impact on the public domain. The first step, clearly, is the rejection of the Citizens United decision which at least two of the judges who voted for it now realize was a mistake. And, if we cannot revise the constitution, we can certainly modify it to see to it that controls are placed on otherwise unfettered power. That is, we can if we have the will.

Academic Freedom

Back in the day when I was teaching at the collegiate level we worried about academic freedom. In those days, it amounted to insisting that administrators allow faculty of differing opinions and philosophical convictions to speak their minds without recrimination. It also insisted on equal pay for equal work. It degenerated into unionization which, while it did raise salaries and save the careers of a number of faculty members, it also set a tone that I always felt was inimical to the ideals of collegiality that ought to be found on college campuses. But then I have been spitting into the wind so long my saliva is about used up.

Of late, however, the university faculties themselves are interfering with academic freedom. Increasingly, they are refusing to allow speakers to speak on campuses across the country, “controversial” figures like George W. Bush, Madeleine Albright, George Will, Paul Ryan, Condoleezza Rice, and Ayaan Hirsi Ali. Bear in mind that the universities that denied these people a voice on their campuses, because of student and faculty protests, are so-called “prestige” academies — places like Brandeis University, Stanford University, Boston College, Rutgers University, University of Minnesota, Yale University, and others of equal standing.

Students, often led by militant faculty with hidden agendas, are becoming increasingly strident in their opposition to ideas they regard as a threat to what they regard as social justice. In a word, they have their minds made up and cannot allow alien information to intrude on their convictions and deeply held beliefs. Increasing numbers of universities, in a word, are becoming closed systems that refuse to allow outside information to penetrate if it is determined by the vocal element on campus that those ideas are somehow harmful. There are exceptions, but they are increasingly rare.

Coupled with this intolerance in places that ought to be open to all ideas no matter how radical or outrageous, is the growing ignorance of the students and a great  number of the faculty. A recent study by the American Council of Trustees and Alumni determined that:

• Nearly 10% of recent college graduates think Judge Judy is a member of the Supreme Court.

• Less than 20% of those college graduates know the effect of the Emancipation Proclamation.

• More than a quarter of the college graduates did not know that Franklin D. Roosevelt was president during World War II.

• One-third did not know Franklin D. Roosevelt was the president who spearheaded the New Deal.

And so it goes. To augment their ignorance, many of those students, while enrolled, were involved in a variety of campus protests, including a group from Brown University that complained of the emotional stress and poor grades that followed from the months they spent protesting! They blamed the university for insisting that they complete coursework and demanded “incompletes” on their course work.

On many campuses protest seems to have become an end in itself as self-indulgent students increasingly complain about their course requirements and about the poor grades they receive as a result of their unwillingness to complete those requirements. And in many cases, intimidated or sympathetic faculty take the side of the students rather than take the lead in showing them the way out of their ignorance by opening them up to new intellectual horizons. For many who teach, followers are what it’s all about — especially those who give them praise in on-line evaluations that often determine how full or empty their classroom might be. The pressure to be popular, to give students a “break,” is immense and helps us to understand grade inflation. Pressure was immense when I taught and it has only increased as students’ sense of entitlement has grown by leaps and bounds in our permissive society.

In the end, the trend toward closing doors (and minds) to new ideas, coupled with the increasing tendency to ask little of spoiled students who complain when asked to do what they really would rather not do, will reduce our academies of higher learning to country clubs and mental health clinics where students can feel safe and protected from the realities of the world “out there.” In a word, universities are rapidly becoming more concerned about the “well-being” of the students than about their intellectual growth. This does not absolve members of college faculties of their responsibility to prepare their students for the real world; it merely recounts what seems to be a growing trend in academia.

 

Politics As Usual

The Greek philosopher Socrates who lived from 470 until 399 B.C.E. sought to withdraw from the hurly-burly of ordinary political life in what was one of the very first democracies. He insisted that it was impossible to participate in the political life of Athens and at the same time retain one’s integrity. And in his view integrity, living a virtuous life, was of paramount importance: it led him to eventually accept the decision of a corrupt court and drink Hemlock.

Socrates

Socrates

Politics has always been a bit of a dirty game, but it is a game that is played for high stakes and a great many have discovered how to become very wealthy playing the game, doing what they are told, and collecting their reward from the special interest groups. I have not counted recently in our political system (which is not a democracy, strictly speaking) how many can be readily identified as corrupt. But the number must be rather large. We are now caught up in a bind with “representatives” who only represent special interests and who are determined to bring government to a halt if their candidate does not win the presidency. Partisanship has replaced citizenship in this country and there are very few like Socrates around — or even those who are convinced that they can play the dirty game of politics and still keep their hands clean. I can count those few on the fingers on one hand. But there are a few.

Socrates, it has always seemed to me, was a bit too uncompromising. Surely it is possible for a person to be actively involved in politics and to remain a person of integrity? Or is it? Think of the temptations from the immensely wealthy who have millions of dollars to spread around buying the people who will make the decisions that will favor their particular business. There is no question whatever but that the corporations call the shots, especially since the Supreme Court decision Citizens United that gave the corporations the right to directly influence elections. Is it possible for a politician like Elizabeth Warren, for example, to continue to play the dirty game without getting soiled? That is an interesting question and one which will not be answered for a few years yet. But the siren song of wealth and power is always playing in her ear and she will have to be one tough cookie to remain far enough out of the mud to remain clean.

There are a great many people in this country that are sick and tired of “politics as usual.” They are convinced that it is a dirty game and that everyone who plays it is soiled. Of late, to be sure, it gives the impression of a large group of very well paid men and women who spend time talking and doing nothing. Thus these voters turn to an outsider, one who is outside of politics if not outside of reality itself, and they hope and pray that this man with the funny hair and tiny hands will deliver this country from the muddy world of politics as usual. In the process, they expect, they themselves will be recognized and their hopes and dreams will become a reality, because politics as usual has passed them by and they have been left in the lurch, clutching at straws.

Unfortunately, politics is a dirty game. That is a fact, and anyone who chooses to play must get their hands at least a bit dirty. The problem that faces this country at this juncture is whether we are realistic enough to accept the fact that politics is a dirty game and seek the one candidate who is the cleaner of the two and who promises to play the game in such a way that the country will remain relatively strong and survive as at least a shadow of the republic the founders envisioned. Or will the citizens of this country be so sick of politics as usual that they will blindly choose a man who is completely unqualified to head up this government and play a game whose rules he does to fully understand, a man who is used to making up his own rules on the go?

Socrates was right. But he was also wrong. It is possible for some to play the game and retain their integrity. But it is mighty difficult and there are few who can manage to play it successfully. In the meantime, we must accept reality as it is given to us and accept the candidate who will do the best job for the country and for each of its citizens — the best under the circumstances. It’s time for realism, not pie-in-the-sky-fantasy that ignores the fact that an unqualified president will flounder and fail miserably in the dirty world of politics, a world he is totally unfamiliar with and one that will eat him alive.

Free Speech?

The first amendment to the U.S. Constitution states that the government may not establish any laws that “impede the free exercise of religion or abridging freedom of speech,” among other things. The F.B.I.’s recent attempts to force Apple to open private documents on the grounds that there might be information there that threatens the United States centers around the question of how much power the U.S. government actually has, given the wording of the First Amendment and our presumed right to privacy. Leaving aside for the moment the question of privacy, clearly the so-called “right” of free speech is guaranteed by the First  Amendment, despite the fact that it speaks against the government’s misuse of its power, and not about the ordinary citizen at all. But the question has been raised repeatedly as to just what that “right” guarantees. The famous clounter-example is the alleged right to shout out “fire” in a crowded theater, and that has been something of a paradigm: the right to free speech does not extend so far as to endanger others. That would appear to be common sense.

The Supreme Court has dealt with numerous cases of alleged violations of the First Amendment on the part of the government, going back as far as 1919 when Eugene V. Deb’s outspoken opposition to the war led him to face 10 years in prison. Furthermore, as the following case will illustrate, in 1969 the Court ruled against the right to free speech when it is designed to incite a riot — which would be a corollary to the so-called right to shout “fire” in a crowded theater. I quote the always reliable Wikipedia at this point:

Brandenburg v. Ohio, 395 U.S. 444 (1969), was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action. [Italics added].

Now, given the undeniable fact that the leading candidate for the Republican nomination for the highest office in this land has said things that led inexorably (some would say) to violence — in the case of an alarming increase in the burning of Muslim Mosques in this country since the speeches began and the recent violence at his rallies where protesters have been struck and thrown to the ground by “security” personnel or by irate supporters of the candidate — one might ask whether this man’s outspoken bigotry and hate-and-fear-mongering ought to be allowed by law. It is apparently not speech protected by the First Amendment since it leads, apparently, to violence. Indeed, it would appear to be a clear case of speech “inciting, and likely to incite, imminent lawless action.”

It is interesting that this man’s crude and abominable behavior should raise such a question. If he were not running for the highest office in the country it would be a small item, hardly worth mentioning (though still interesting none the less). But given the circumstances, it strikes me that his behavior is not only lawless, but ought to disqualify him from the high office he seeks where he would be sworn to uphold the Constitution of the United States — a document about which he seems to be entirely ignorant, and which he flagrantly abuses.

Small Victory

A recent Supreme Court decision seems to give those of us heart who want some sort of control on the sale of guns in this country, some restoration of sanity in what has become sheer madness. A Yahoo News story suggests that the Court realizes that the sale of such things as assault rifles and semi-automatic weapons was never any part of what the Founders had in mind:

Washington (AFP) – The US Supreme Court appeared on Monday to back lawmakers who want to restrict the type of guns such as semi-automatic assault weapons used in recent mass shootings.
In a 7-2 vote, the high court’s justices refused to take up a challenge to a Chicago suburb’s ban on the sale or possession of semi-automatic weapons or high-capacity magazines with more than 10 rounds of ammunition.

The court’s move is a small victory for activists against the spread of such guns, which can potentially kill many people in a short period of time.

Predictably, the two Justices who voted in opposition to the majority were conservatives Antonin Scalia and Clarence Thomas. What is interesting to me is that Thomas claims to be a “strict constructionist,” one who  thinks the country needs to stick close to the intentions of the Founders. But, as I have said on these blogs repeatedly, a close reading of the second amendment to our Constitution states clearly that the “right” to bear arms is designed to guarantee the ability of a militia to defend the country against possible insurrection. The amendment doesn’t guarantee all of us the right to bear arms, only the militia. And since we no longer have a militia it would follow that the so-called right is no longer applicable. Further, the Court in years past has ruled out such things as machine guns and sawed-off shotguns on the grounds that these are not protected by the Second Amendment. So there is precedent.

One would expect that the Supreme Court is not subject to the threats and pressures the N.R.A. can bring against elected officials — by guaranteeing that those who are “uncooperative” have brief political lives. The justices are appointed for life and the original idea was that as such they would be above political infighting and cajolery. And in the past, the Court has shown that it can rise above political infighting; even the present Court has done so on occasion. Such is the case here, one would think. It is a small step. But when most of the steps we have been taking recently seem to be backwards, it is a sign of hope that there is a way forward.

Joe The Plumber

If we are interested in such things, we can read in Wikipedia the following text about one of America’s “heroes.”

Samuel Joseph Wurzelbacher, better known by the nickname “Joe the Plumber“, is an American conservative activist and commentator. He gained national attention during the 2008 U.S. presidential election when, during a videotaped campaign stop in Ohio by then Democratic nominee, Senator Barack Obama, Wurzelbacher asked Obama about his small business tax policy. Obama’s response included the statement, “when you spread the wealth around, it’s good for everybody.” Obama’s response was seized upon by conservative media, as well as by Obama’s rival, Republican nominee Senator John McCain, as an indication that Obama was interested in the redistribution of wealth and had a socialist view of the economy. Wurzelbacher is a member of the Republican Party.

Since he expressed to then Senator Obama that he was interested in purchasing a small plumbing business,Wurzelbacher was given the moniker “Joe the Plumber” by the McCain–Palin campaign. The campaign subsequently took him to make several appearances in campaign events in Ohio and McCain often referenced “Joe the Plumber” in campaign speeches and in the final presidential debate, as a metaphor for middle-class Americans.

Wurzelbacher became a conservative activist, commentator, author and motivational speaker. In 2012, he ran on the Republican ticket to represent Ohio’s 9th congressional district in the House of Representatives, losing to Democratic incumbent Marcy Kaptur.

And, so I have heard, he became the darling of Fox News. He’s supposed to represent your typical American as embraced by the Republican Party and represented by ordinary folks like Mitt Romney. The reason one might be interested in recalling this name is because it is again in the news; the man has opened his mouth again and showed us that there is really nothing between his ears. After the shooting deaths of three students and the injuring of thirteen others in a Santa Barbara Community College earlier this month, Joe declared that “As harsh as it sounds — your dead kids don’t trump my Constitutional rights.” There are two things about this inane comment that are disturbing.

To begin with, of course, is the crass self-assertion that rubs salt in the wounds of the parents of those who have lost their children to another senseless shooting in a country where such things are becoming alarmingly commonplace. I couldn’t possibly write a better response than did Erica Lafferty, the daughter of one of the women slain in the Sandy Hook shootings in December of 2012. Her comments can be read in their entirety here. But the second point has to do with this man’s typical misreading of the U.S. Constitution. I have held forth a number of times on this topic and will not repeat here what I have said in previous blog posts, except to say that retired Supreme Court Judge John Paul Stevens has expounded on a point I have made in those posts, to wit, that the second amendment to the Constitution does not guarantee people like Joe the Plumber’s so-called “rights” to keep and bear arms. It guarantees the rights of members of the militia to keep and bear arms.

This point cannot be made emphatically enough, since the widespread misunderstanding of the Constitution has led to the irrational attempts to justify the presumed rights of every American of every age and political persuasion to own automatic weapons that are designed to kill human beings on the grounds that they have a Constitutional right to own such weapons. The usual argument is that once such weapons are banned then “they” will take away our hunting rifles, though I have never heard anyone claim that hunting weapons should be taken away from people. Those who argue for some sort of calm and reasonable approach to gun control simply want to help remove those automatic weapons that are clearly designed for killing human beings and are readily available from the sporting goods department at Walmart, among other places.

In other words, folks like Joe the plumber who reveal their arrogant self-righteousness about their presumed “rights” and the determination of “liberals” to take away their shotguns and 22’s are guilty of what logicians call a “red herring.” There is no such movement. Second Amendment aside, no one wants to take hunting weapons away from Americans.  But the attempt  by folks on both the political left and right to bring light to an issue where there is at present so much heat  is thwarted at every turn by the immensely powerful gun lobby whose only goal is to keep producing and selling expensive weapons of all descriptions behind their appeal to a Constitutional amendment that was never written to guarantee them such a right in the first place. And the N.R.A. has shown repeatedly that they have enough politicians in their pocket to keep any sort of meaningful gun control issue from even being raised in Congress.

But, that’s the issue, isn’t it? How does one shine a light on such darkness where greed, irrationality, hatred, and fear dominate and reason can find no purchase?

 

Corporate Persons

In 1905 in his annual message to Congress, President Theodore Roosevelt declared:

“All contributions by corporations to any political committee for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.”

As retired Supreme Court Judge John Paul Stevens points out in his discussion of an amendment he has proposed to the U.S. Constitution that would curb excessive spending on political campaigns, the courts consistently maintained for years that corporations are not persons and therefore not entitled to the same rights as citizens of this nation. For one thing, corporations cannot vote, whereas citizens can. Conservative Justice William Rehnquist in 1982 wrote for the unanimous court in Federal Election Commission v. National Right to Work Committee, “there is no reason why Congress’ interest in preventing both actual corruption and the appearance of corruption of elected representatives may not be accomplished by treating. . . corporations differently from individuals.”

The change in the Court’s position came about indirectly, beginning in 1990 in a dissenting opinion written by Justices Antonin Scalia and Anthony Kennedy to Austin v. Michigan Chamber of Commerce in which they contended that corporate speech, like other expressive activities by groups of persons, was entitled to the same First Amendment protection as speech by an individual. This opened the can of worms that has become the ugly Citizens United Supreme Court case that recently maintained, drawing on Scalia and Kennedy’s opinion above, that since corporations have the same free speech rights as individuals, they have the right to support political candidates without restrictions. As Stevens notes in this regard, “[Scalia’s arguments in 1990] provided the basis for the court’s five to four decision in Citizens United overruling  the Michigan case and apparently affording the same constitutional protection to election-related expenditures by corporations as to speech by individuals.” Sheer magic: political donations are a form of free speech and corporations are people even though they cannot vote and (so far as we know) they cannot copulate.

Needless to say, the Citizens United case stands in glaring opposition to the concerns raised in 1905 by President Roosevelt and upheld by the courts for 105 years thereafter. Roosevelt was expressing the obvious concern about the undue influence of wealth on elections that would tilt the playing field and render ineffective the attempts by the less wealthy to have any voice in politics whatever. As Stevens says, one of the many consequences of this imbalance is the “public’s perception of the role of money in influencing the outcome of elections. Voters who would believe that the power of the purse will determine the outcome of elections are more likely to become bystanders rather than participants in the political process.” Indeed. One need look no further for an explanation as to why citizens have become increasingly disenchanted with the political process and why several analysts have determined that America has become a de facto oligarchy and can be regarded as a democracy in name only.

Stevens does not suggest an amendment to deal directly with the issue of whether corporations are or are not persons — as is currently under discussion nation-wide — but rather an amendment that simply allows states and the Congress to set “reasonable limits” to campaign contributions without insisting that these limitations are in any way in conflict with the First Amendment: limits on campaign spending should not be considered limits on free speech. But whether this Court or this Congress could manage to work with a nebulous concept such as “reasonable limits” is questionable, so the issue remains how to put restraints on those with great wealth who would make the government dance to the tunes they play on their diamond-studded harmonicas. — especially since those who might place those restraints on the wealthy are busy dancing to their tunes.  As things now stand, the recent Supreme Court decisions have given the corporations and the 1% of this country who control the vast majority of the wealth virtual control of the political process. Corporations and the very wealthy can determine who runs and who gets elected — and what those people will do once elected.

In a masterpiece of understatement, Stevens concludes that “The decision in Citizens United took a giant step in the wrong direction.” Teddy Roosevelt would agree.