The following is an edited text of a presentation that I had planned to give to Rutgers students of NJPIRG on the historical background of the Citizens United case,. The presentation was cancelled before I got the chance to make it. I thought that our readers, here and abroad, might be interested in looking at this ongoing and pernicious oddity of U.S. judical history.
First the United States judicial system at all levels is politicized.is political and always has been political . Judges are and have always been either elected or appointed by political parties/leaders for political reasons. The U.S. Supreme Court is the most powerful court in the world because it has the power to do routinely what no other court in the world has—the power to repeal local, state and federal laws, and directives of mayors, governors and presidents, thus in effect influencing directly policy in all areas of life. That power was not explicitly in the Constitution by it was gained by the Court in an early decision(Marberry v. Madison, 1805) and has been the unchallenged rule ever since.
Through most of U.S. history, the courts, whose members are appointed usually for lengthy terms, and the Supreme Court, whose members are appointed for life (barring impeachment) has been the most conservative branch of a government defined by a divided sovereignty between executive, legislative, and judicial branches.
And it has pursued “activist” interventions in government, declaring against legislation to regulate and tax private business and provide protection and benefits to labor and until the great depression, the upsurge of workers and peoples movements, led the New Deal government of Franklin Roosevelt to foster a great change. First to enact legislation to regulate business and provide benefits for labor and the people and asecond appoint judges to the federal judiciary who would support both such policies and also support a high standard of protection on the question of the civil rights and civil liberties of individuals and minority groups.
Only then did the rightwing begin to denounce “judicial activism” by which they meant court decisions to end school segregation, limit the power of police to search and interrogate citizens, restrict the death penalty, prevent governments from criminalizing abortion, and similar bill of rights related questions.
However, beginning with the Nixon presidency and carried forward under Ronald Reagan and both George HW and George W Bush, a counter-revolution against a judiciary that put the civil and human rights of people before the property rights of corporations and the wealthy has been carried forward. The Citizens United Case is the most recent stark and extreme example of what that counter-revolution is about and what it has already accomplished.
Now let’s look at the history which led to this. When the Civil War ended, radical Republicans—led by prewar abolitionists—had substantial power in Congress. But they faced a president, Andrew Johnson, who was totally opposed to their plans to provide citizenship rights to the four million former slaves and carry out other reforms that would democratize the defeated Confederate States. And they also faced a Supreme Court which was still in the hands of the “ex slaveholders” who eight years earlier had issued an unequivocal defense of the property rights of slaveholders and denial that any Blacks, slave or free, had any citizenship rights , in the Dared Scott Case(1857).
So they transformed into a constitutional amendment what was initially a comprehensive civil rights bill, granting citizenship rights to the former slaves, establishing clearly the supremacy of the federal government over the states on questions of citizenship rights, and denying states the right to abrogate the citizenship rights of all persons without due process.
This fourteenth amendment to the constitution, which was enacted after fierce political struggles, was about the rights of “persons” who had been slave property but were not yet citizens. It had nothing directly to do with the property rights of corporation.
Now we jump ahead to 1873. Rapid industrialization followed the Civil War bringing with it large national corporations led by men who called themselves “captains of industry” but whose critics and victims called them Robber Barons.
Railroads were both essential to this rapid industrialization and along with Steel and Oil the areas of the economy in which the large national corporations were centered. Stephen Field, brother of the inventor and capitalist Cyrus Field and associate of railroad Robber Baron Leland Stanford, had been appointed after the war to the Supreme Court by President Ulysses S. Grant.
It was Field who developed the novel view that businesses were persons deserving of the 14th amendment’s protections. And he did so in the most fantastic way imaginable.
In Louisiana, then under Radical Republican control, the state legislature passed a law relocating butchers south of New Orleans so that the waste products of their work would not pollute the city’s supply (this pollution had been the source of cholera outbreaks). By a 5-4 decision, the court upheld the law, but Field, writing for the minority contended that the right of a business to pursue its business interests without state interference was “the distinguishing privilege of all citizens of the United States.”
Field continued to push this view without much success for years, even though on one occasion the Chief Justice called upon him to recuse himself because of his involvement with and investments in the companies coming before the court. Field, a Californian, was especially close to Leland Stanford, whose Southern Pacific Railroad was the great economic and political power in California(at one point, it was reported that Stanford offered Field the presidency of the University that he was building in Palo Alto and whose first class would include future president Herbert Hoover)
When Santa Clara county, California, sought to tax the Southern Pacific, the company took its case to the Supreme Court , using as its defense the “corporate personhood or citizenship” argument under the fourteenth amendment which had been developed by Stanford’s close friend Justice Field.
This time the court found 5-4 for the Southern Pacific but on questions concerning the power to tax not on Field’s “corporate personhood” theory.
But the official Court Reporter, John Chandler Bancroft Davis, himself a former railroad attorney and trustees previously caught in a scandal in which he was accused of obtaining most of the railroad’s assets, wrote a commentary on the decision which stated “the defendant Corporations are persons within the intent of the clause of section 1 of the Fourteenth Amendment to the constitution of the United States, which forbids a state to deny any person equal protection of the laws.”
The decision had in reality nothing to do with that issue, and the summary was Field’s and in all likelihood Davis’s “interpretation” was what Field told him to write. And of course, the Court reporter’s summary had no legal standing.
But Field then built a lie upon a lie to cite the summary, claiming he was citing the Santa Clara case, in another case two years later to claim that “a private corporation is included under the designation of ‘person’ in the Fourteenth Amendment to the Constitution of t he United States, Section 1.”
That then became the basis for the doctrine of “corporate personhood” which meant corporate citizenship which meant not simply that property rights took precedence over human rights but that the rights of property, of corporate property, were in reality human rights. One might mention that the Court in whom Field now represented a majority was the same Court that was repealing the civil rights legislation passed to protect former slaves by the same Radical Republicans who enacted the fourteenth amendment.
But what did this have to do with campaign financing? Until the late 20th century, nothing. “Corporate personhood” was one weapon in an arsenal used to prevent the regulation and taxation of private business and legislation to compel private business to recognize and negotiate with trade unions, pay minimum wages, etc. It was in reality less important the doctrine of “freedom of contract” and the Court’s reliance on a narrow interpretation of the Constitution’s clause and blind eye toward the Constitutions’ General Welfare clause in serving as the rationale for the court’s defense of corporate wealth and power from the 1880s to the 1930s, when that wall cracked under the pressure of labor and peoples movements as reflected in the policy of the New Deal government
As money became more important in U.S. political campaigns in the 20th century with the development of party primaries, and radio and television, there were very limited attempts to regulate the use of money in elections. An early 2oth century law restricting financing in federal elections was updated and upheld in 1970 by what was still a progressive oriented Supreme Court. But subsequent decisions began to chip away at campaign financing legislation s, using both the fourteenth amendment and the free speech provisions of the first amendment to limit the scope of legislation restricting campaign financing.
In 2002, faced with what had been an exponential increase in the use of money by corporations,
Congress passed a very limited Bipartisan Campaign Reform Act, popularly known as the McCain-Feingold Act to address the question of money in national politics. In 2010, the Supreme Court, its four ultra-right Justices, Scalia, Thomas, Alito and Chief Justice Roberts, joined by the previously less ultra right California conservative Republican, Anthony Kennedy, invalidated MCain-Feingold on both first and fourteenth amendment grounds.
Kennedy’s fellow Californian, Stephen Field, never went so far as too employ the “free speech” rights of the first amendment to defend corporate personhood (even he make have blushed at the thought that corporations, however much they are people, have their rights to free political speech abridged by limiting their right to spend money in politics)
What can be done? First, we can elect a Congress that will enact serious campaign financing reform that will go far beyond McCain-Feingold in restricting the stranglehold that corporate/finance capital though their lobbyists and their funding of the election and re-election of candidates has over national politics and make that into the model for all politics.
Secondly we must also organize for a new struggle to restore a federal judiciary that will be an aid, not a major obstacle to progressive legislation and policy and democratic with a small d political action. If 2012 see a major progressive victory it will in all likelihood see a struggle over the future of the judiciary of a kind that we have not seen since the 1930s. But that is only possible with a progressive victory. A defeat, especially a defeat in the presidency, will probably enshrine a reactionary majority on the court for an many years, if not decades, to come.
