Judicial Activism for Strict Constructionists

The U.S. Supreme Court decision of January 21, 2010 in ‘Citizens United v. Federal Election Commission’ had the conservative justices in the majority. That is not an issue for me. I have distinct libertarian tendencies with which those justices sometimes align.

I am concerned with a fiction and with a reality. Reality first:

The decision grants corporations the same constitutional status as individuals that you and I have. That status confers all constitutional rights, including the pre-eminent 1st Amendment rights.

Despite protestations that ‘it’s not true‘, many corporations do have foreign owners and stockholders. They do promote public policies which are contrary to the wishes of some stockholders. They do already have immense political power, and they use it.

The range of opinions on the Court’s decision included Justice Thomas’ dissent: “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats …” It is obvious that the potential for significant damage to our liberties is recognized even by a Justice who voted for the decision.

We have given scant attention to the warning of President Dwight D. Eisenhower on January 17, 1961:

“In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”

Those who recognize this fact and realize that ‘Citizens United v. FEC’ is an expansion of the power of corporations may either be distressed or relieved. Yes, those who are adept in manipulating corporate influence can recognize the decision for it ‘beneficial’ possibilities. I will not develop this observation further. Corporate influence is so pervasive that I regard it as unworthy of detailed exposition.

We can curtail this threat. A solution is available which incorporates an important concept from the original Constitution.

The solution is to define ‘individual’ as excluding chattel and dependent persons. Individual constitutional rights cannot devolve upon entities which are the property or dependent children of other, Constitutionally-endowed, individuals.

The overt Constitutional example is Article One, Section 1, Clause 3, which refers to “free Persons” in apportionment of “Representatives and Taxes” as being distinct from “all other Persons” (slaves). After the abolition of slavery, the Fourteenth Amendment provided the first overt definition of citizenship: “Section 1. All persons born or naturalized in the United States … are citizens …”

The fiction is provided by the majority opinion in ‘Citizens United v. FEC’, delivered by Justice Kennedy: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” He also noted that since there was no way to distinguish between media and other corporations, these restrictions would allow Congress to suppress political speech in newspapers, books, television and blogs.[Wikipedia]

This comes from a decision which did not mention any Constitutional Amendment other than the 1st. The distinction between “speech” and “press” created in the 1st Amendment is blurred by Justice Kennedy’s opinion, above. Many years and other decisions have updated the word “press” to mean “news media” of all types, apart from individual “speech”. The Court’s decision did not expand corporate rights as “press”, it did so as “speech”. The opinion is explicit about this: “The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.””.

The profferred solution therefore does not restrict the freedom of the press.

It also can accomodate the “associations of citizens” noted by Justice Kennedy. These may be defined as we currently implement Political Action Committees. PACs are associations of citizens who have explicitly contributed or joined for the express and sole purpose of joint political speech.

The solution, whether implemented legislatively or by Constitutional Amendment (a separate concern), thus becomes:

Citizens under the Constitution of the United States of America shall exclude chattel and dependent persons up to the age of 18. Citizens shall include associations of citizens who have explicitly contributed or joined the association for the express and sole purpose of joint political speech.

May such a solution serve to restore the guidance of President Dwight D. Eisenhower on January 17, 1961:
We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals so that security and liberty may prosper together.”


2 Responses to “Judicial Activism for Strict Constructionists”

  1. 1 Jim
    February 15, 2010 at 6:54 pm

    Duane, my opinion of Eisenhower has increased over the years. He has become the Neglected President. The Marshall Plan, a brilliant exercise in rescuing international relationships and containing the Soviets, was really the Eisenhower Plan. We all know what he did for interstate highways. He advanced civil rights, especially in the military. He kicked Sen. Joseph McCarthy’s butt (one of my favorite episodes!). He was a Libertarian & Fiscal Conservative with integrity. As much as I liked Adlai Stevenson, I do not think that the country would have fared better with him as President.

    I don’t see how legislative actions can really remedy ‘CU v. FEC’. But there are such efforts in the works. – Jim

  2. 2 Duane Graham
    February 15, 2010 at 5:01 pm


    That is an interesting suggestion, although I have doubts about it as a legislative remedy (and I would have to re-read the majority opinion to assuage or confirm those doubts). As a Constitutional Amendment, though, it has obvious merit.

    I like your Eisenhower reminder, too. The phrase that follows the famous one is the best:

    The potential for the disastrous rise of misplaced power exists and will persist.


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