Our Decrepit Constitution: US Supreme Court merges with the robber barons

The years after the Civil War marked the beginning of modern America. Some people became extremely rich through government largess. The government paid companies to build railroads by giving away the land the rails passed by. Slavery was replaced by a system called sharecropping that tied people to the land like medieval serfs. Factories paid children and women starvation wages and forced them to work 60 hours or more a week. Corporations made even more money than they had before the war using slave labor. Financiers became the heroes of America by loaning the government enough money to end recessions—which financiers were responsible for starting.

The Progressive movement arose in opposition to corporate abuses. For awhile it looked like life would get a little easier for workers. The Supreme Court ruled (Munn v. Illinois (1877)) that legislatures could pass rules to control corporate pricing under the Commerce Clause of the Constitution. This decision gave hope that We the People could fight back against the corporations that were sucking the life from the country.

Vain hope. The courts soon became the willing bedfellows of the corporations. The Supreme Court ruling in Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota(1890) struck down a Minnesota act that established a railway commission with the power to set rates and timetables, which were the instruments by which railways exercised their monopoly powers. The Court ruled that the courts, not the legislatures, should decide what rates were appropriate.

This action reversed the spirit of Munn,which appeared to reserve that power for the legislatures, and at the same time made corporations more powerful than the government. The corporations were able to influence legislatures through largess. The people could elect legislatures that looked out for their interests, but the Court now ruled that those anti-corporate elections would count for nothing.

The Supreme Court was moving toward granting corporations full personhood. The framers had not foreseen this development, nor provided for it in the Constitution. The Court declared in Pembina Consolidated Silver Mining Co. v. Pennsylvania (1888) that corporations were persons entitled to protection under the due process clause of the Fourteenth Amendment, despite the fact that the Fourteenth Amendment was intended solely to protect the rights of freedmen. This definition gave corporations protection from "unreasonable regulation" and taxation. In practice, it gave them virtual immunity from regulation and taxation, since the courts alone could determine what was reasonable and appeals were costly and time-consuming.

Another pro-corporation development at this time was the principle, right of contract, beginning with Godcharles v. Wigeman, 113 Pa. St. 431 (1866). The court in Godcharles declared that a law requiring laborers to be paid in cash instead of company scrip was degrading to the laborer, because it robbed the laborer of his right to make a contract for himself. By this declaration, the court accepted the fiction that what existed in the law books existed in reality and that a Corporation could not compel a laborer to accept company scrip in lieu of wages, because the laborer had an equal bargaining position with the corporation.

The courts forbade the state legislature to interfere with any contract duly made between two parties and particularly applied this principle to contracts between laborers and corporations, which they considered equal partners in an employment agreement. This policy meant that no law could interfere with an employment contract, no matter how unfair its terms might be to the laborer. Courts ignored the obvious fact that corporations, which had everything, were not equal to laborers, who had nothing. Courts assumed that laborers had the ability to walk away from any contract they did not like, despite the impossibility for most laborers, hardly able to feed and clothe their families, to do any such thing. Right of contract existed only in the minds of corporate lawyers and judges, not in the real world of need and subsistence.

The courts wielded the Fourteenth Amendment due process clause to protect corporations from state regulation. While doing so, they struck down numerous progressive laws that provided laborers with the eight-hour day, the right to be paid weekly, the right to work less than sixty hours a week, the right to be paid in cash rather than company store credits, the right not to pay higher prices than non-employees in the company stores, and many others.

The courts of the late nineteenth century ignored the common law precedents of the eighteenth century in their attitude toward the poor. They forgot the words of Lord Northington: “Necessitous men are not, truly speaking, free men; but, to answer a present exigency, will submit to any terms that the crafty may impose upon them.” (Vernon v. Bethell (1762)). In modern English, this means, "Poor men are not, truly speaking, free men, but to answer a pressing need, will accept any terms an unscrupulous employer may offer them."

See Arnold M. Paul, Legal Progressivism, the Courts, and the Crisis of the 1890s, Business History Review, 83 (1959) at http://law2.umkc.edu/faculty/Profiles/Kobach/AmerLegalHistory/Winter2005/Legal%20Progressivism.pdf

SCOTUS consults dictionary to see if voter suppression is constitutional

Most people would consider the case Arizona v. Inter Tribal Council of Arizona to be about the outrageous attempt by Arizona Republicans to deny the vote to Arizonans of Latino heritage. Not so Justice Scalia, who sees the case as an opportunity to discuss the dictionary meaning of the word, “accept”. Here we have the epitome of a narrow ruling, where the Court does not address the important issues in a case, instead discussing recondite matters of word meanings and reading the commentaries on election law in the Federalist.

Justice Scalia notes that James Madison, the slaveholding contributor to the Federalist, believed the federal government should not set its own requirements considering who should be allowed to vote. To do so, wrote Madison, would by degrees subvert the Constitution. Madison's overriding concern here was that non-slaveholding states would pass laws permitting African-Americans to vote. This was the reason for the Constitution's limitation in this area.

The people no longer believe there should a right to hold slaves. Therefore, the Court should give no weight whatsoever to any comments written by 18th century slaveholders on whether the federal government should determine voter qualifications. The Fourteenth Amendment took this power away from the states by declaring

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Arizona's voter registration requirement, passed in 2004, is just such a law. It erects barriers between voters and the ballot box. Studies have shown that 90% of the voters refused registration under the law were legally eligible to vote. The law crippled voter registration drives, which target first-time voters and voters newly arrived in the state.

The white supremacists who passed this law in Arizona got the results they wanted. The groups most affected by tougher registration rules are young, first-time voters, minorities, and the elderly. An objective evaluation of the effects of this law must bring it into conflict with the Voting Rights Act of 1965, which prohibits voting practices or procedures which discriminate on the basis of race, color, or ethnicity.

Once again we are faced with a situation where the laws are being violated by a small group of people who wield political power. These are the only people who could rectify the injustices they themselves are causing. Any other group that challenges these laws would require years of appeals and large sums of money.

We should not imagine that the conservatives on the court are colorblind. Justice Scalia knows that the framers had the same world view as slaveholders of that time, because they were in fact slaveholders. He personally favors rules that would exclude eligible voters from the rules, because his written opinion tells the supremacists of Arizona that they could make a similar law if they only followed his guidelines. They may, he writes,

request anew that the EAC[Election Assistance Committee] include such a requirement among the Federal Form’s state-specific instructions, and may seek judicial review of the EAC’s decision under the Administrative Procedure Act.

Those who want to suppress the vote of minorities should thank Justice Scalia for his helpful advice. None of the Justices mentioned that the right to vote is the foundation of our democracy, and that no law that prevents even one qualified voter from casting his vote should ever be ruled constitutional by this Court. 

Maryland v. King: New Technology Confuses Supreme Court

DNA testing is decades old. Police have developed techniques for using it to identify suspects. The suspect in Maryland v. King was caught because he was arrested for brandishing a shotgun. The police collected a sample of his DNA on a cotton swab they touched to the inside of his cheek. The sample matched DNA collected in the investigation of a brutal rape. King was convicted of that crime.

 To most people, perhaps a vast majority, this seems reasonable, even a cause for celebration. The police solved an old crime. A victim got whatever justice she could from the capture and punishment of her assailant. The public breathed a sigh of relief that a dangerous criminal is now in prison instead of on the streets, looking for his next victim.

 The Supreme Court is not most people, however. They are priests in the strange cult of Constitution worship. They compare every trial outcome to a piece of paper that is incomprehensible to most people. No one can predict what they will decide once they have performed the necessary rituals over the scrap of holy paper.

Justice Antonin Scalia is the high priest of Constitution worship. In this case, Scalia writes that the police should not be able to perform the simple act of touching the inside of a suspect's cheek with a cotton swab. The Constitution forbids it, he says. He has made similar statements in the past. The Framers of the Constitution, a small group of men who wore knickers, silk stockings, and powdered wigs, wouldn't permit it.

 This seems most strange to me. Even the existence of DNA was unknown until about 160 years after the Constitution was written. Scalia and his brethren have no way of knowing what the men of those long-ago days would have thought about today's police procedures. The whole court considers what the Framers thought, or rather might have thought, to be very important.

 The Supreme Court is very good at splitting hairs. In this case, the crucial detail is not whether the police collected the DNA sample, but when. The police should not have collected the sample at the time of arrest, Scalia writes. They should have waited until after the suspect was sitting in a jail cell. He thinks there is a distinction there.

Pragmatism should be applied here. The result in this case would be exactly the same, no matter when the DNA was collected. The result is good. Justice was done.

The Court is also very good at imagining impossible scenarios that are prohibited by the law. The Maryland law permits DNA to be collected only from people arrested for serious, violent crimes. Scalia predicts this will be used to trace minor traffic violators, even though the law specifically forbids this. He writes that this decision will be used to build a national database of DNA that includes everyone who has ever been arrested, rightly or wrongly. With this statement, Scalia is bragging that not only can he red the minds of long-dead framers, he can also foretell the future.

No one, not even a Supreme Court Justice, can foretell the future with any accuracy, any more than he can read the minds of long-dead men.

McQuiggin v. Perkins: Good news for prisoners seeking to prove their innocence

In the recently decided case of McQuiggin v. Perkins, the conservatives on the Supreme Court continue their struggle against the most powerless people in our society, those who have been convicted of a crime. Justice Scalia, in his written dissent, once again claims special knowledge of the U. S. Constitution, which, he tells the court, does not permit the Supreme Court to make changes to laws, only to opinions of other judges. The part where the Constitution forbids the Supreme Court from modifying laws, according to Scalia, states “All legislative Powers herein granted shall be vested in a Congress of the United States...”. That seems to be a straightforward statement, but it has been interpreted differently by different jurists.

Chief Justice John Marshall, in Marbury v. Madison (1801), decided that the Judiciary Act of 1801 was unconstitutional and voided the entire bill. The Act was passed by the Congress, but the Supreme Court nullified it. This is undoubtedly legislating, by deciding which laws may be implemented and which may not. So the Supreme Court has been legislating from the very beginning of the republic.

The framers did not intend for judges and legislators to become quasi theologists using the Constitution as holy writ. Today, the text of the Constitution is held in such reverence by some Supreme Court Justices that they relate almost every case directly to the Constitution, whether or not the Constitution has any relevance to the case. Scalia has assumed the mantle of soothsayer, since he interprets the Constitution and expects others to be guided by his interpretation. When he says that Judges are forbidden by the Constitution to legislate, he splits some very fine hairs about what constitutes legislation and what doesn't.

Scalia also continues his crusade against what he considers a blasphemous decision, Brown v. Allen (1953). In Brown, the Court decided that a writ of habeas corpus could be granted not just on procedural grounds, but also on substantive grounds. Scalia refers to this decision as a Faustian bargain, in other words, a deal with the devil. He goes on to complain that Brown has caused the courts to be inundated with requests from prisoners. Scalia has said that there is no such thing as substantive due process.

Whether substantive process exists and whether appeals should be granted on substantive grounds depends very much on your politics. Conservatives argue that the Constitution only guarantees you a statutory trial, but does not guarantee a fair trial. You got your trial, your lawyer bungled his job, and now you're sitting in a jail cell for 20 years. If you try to assert your innocence in court, Scalia writes, you are contributing to a flood of “stale, frivolous, and repetitious petitions”.

Looking at substantive grounds for a retrial, however, as the majority of the Court ruled in this case, gives an innocent person a chance to prove his innocence in court. Justice Ginsburg, in writing the opinion of the court, writes that a provable claim of innocence justifies the extension of the one-year limitation prescribed by law. The substantive finding of actual innocence, she says, outweighs the letter of the law, which would require the innocent as well as the guilty to be punished for failing to meet a deadline.

This finding drives Scalia mad. He says the law must be observed. In this uncompromising stance he is acting like the clerk who won't let you buy a pack of cigarettes after closing time. The store is closed, the chance for justice has vanished. Scalia and the clerk make the same excuse. “It's not my fault,” says the clerk. “Rules are rules.” But Scalia and the Supreme Court are not clerks at a seven-eleven. They are the highest jurists in the land, the last court of appeal. Scalia's opinion attests to his belief that innocent people should suffer to reduce the workload of the courts.

In his dissent, Scalia uses a metaphor that reveals just how removed he is from reality. You can't just add something to a law passed by the legislature, he says. “any more than one would add another gear to a Swiss watch on the theory that the watchmaker surely would have included it if he had thought of it. In both cases, the intricate craftsmanship tells us that the designer arranged things just as he wanted them.”

The problem with this metaphor is that the watchmaker of a Swiss watch is making an instrument that is guaranteed to work indefinitely. The watchmaker assures the buyer that all of his skill has gone into the making of this watch. A legislative body assures no such thing. The legislature presents the public with a law that is very often a compromise between two diametrically opposed schools of thought. Laws are frequently badly written, containing loopholes that skillful lawyers can use to negate their purpose. Sometimes laws fail in practice because the legislature designs the law to do something that cannot be done, such as lower taxes and balance the budget at the same time. Comparing congress to a Swiss watchmaker is like comparing God (who is infallible) to the committees that design how traffic flows in our big cities.

We all may wish that our Constitution and laws could be perfect, but most of us understand that they are not.

Unholy Alliance: Revising the Alien Tort Statute

There is an unholy alliance between corporations and American courts. Corporations do not influence the courts through elections. Instead, they rely on propaganda to create a pro-corporate mindset. The judges internalize this propaganda and usually rule in favor of corporations. In general, they believe that what's good for business is good for the country.

A recent disaster at a clothing factory in Bangladesh has crystallized the issue. A fire broke out in a factory and killed 117 people. Numerous foreign companies, including Walmart and the Gap, used the factory and others like it to make their clothing. The fire safety certification, awarded by the fire authorities in Daka, had expired in June 2012 and was not renewed. The authorities noted that the building had a permit for five stories but the owner had built eight and was adding a ninth when the building collapsed.

The government of Bangladesh has arrested the owner of the building. They may have difficulty convicting him of a crime, however. The investigation following a 2006 fire in Chittagong, Bangladesh, did not lead to a trial, despite discovering numerous violations of safety regulations. The question remains whether Walmart and the other foreign corporations involved with the building will receive any punishment for their part in the crime.

Walmart has recently warned its suppliers not to buy merchandise from subcontractors who have not been authorized by the contractor. Walmart's actions reveal that the company would like to avoid liability in any future disasters. This new, somewhat belated, safety campaign does not exonerate Walmart, however. The Bangladesh government has proven incapable of regulating its garment industry. Walmart knew or should have known about government incompetence before the fire in question, since there have been many such fires, including the one in Chittagong where more than 50 people died.

There is an American law, the Alien Tort Statute (ATS), that might have been used by victims of the Bangladesh fire to sue Walmart in American courts. The Supreme Court has been whittling down ATS to make it less comprehensive. In the past, victims of torture in foreign countries have sued individual torturers and won in American court. When victims of corporate criminal conduct began using the law, the Supreme Court changed directions to protect the corporations.

Once they had decided to shield the corporations from civil suits, the Supreme Court discovered, what they had apparently missed in earlier cases, that the Alien Tort Statute did not support “extraterritoriality”, that it could not be applied to crimes committed in other countries. In Sosa v. Alvarez-Machain (2004), the court determined that the Law of Nations, which ATS was intended to enforce, does not include corporate liability.

This theory is nonsense. ATS was passed in 1789. The law of nations has since transformed itself into international law, which does indeed have laws that apply to corporations, including criminal statutes against homicide. What ATS did was to give the victim a chance to recover damages in civil court. By ruling that the law of nations, which is no longer a current legal term, does not include corporate liability, the Supreme Court achieves the purpose of shielding corporations from wrongdoing abroad.ⁱ

Since Sosa, the Supreme Court has gone further to discover that ATS does not apply anywhere outside the United States, effectively castrating it as a tool for individuals to recover damages against corporations.ⁱⁱ We the People can take steps to rectify this injustice by changing the law, but it will not be easy, considering that corporations contribute heavily to the campaigns of our lawmakers, some of whom appear to believe that what's good for the corporations is good for the U.S. Such a law would merely amend the Alien Tort Statute to replace the phrase “Law of Nations” with the phrase “established international law”. Furthermore, the new ATS could state that it applies equally to individuals and corporations. Finally, the new ATS could state specifically that the law applied in any nation where an injustice may have occurred.

i In this instance, corporations have more rights than individual persons, since international law in no way can be considered to exempt persons from its statutes, yet the Supreme Court has discovered that the law of nations does not apply to corporations. This inconsistent treatment of corporations is a proof that the unholy alliance exists and has consequences in the real world.

iiSee http://masrizone.blogspot.com/2013/04/kiobel-v-shell-supreme-court-gives.html.

Our Decrepit Constitution: Remedies (Part One)

The National Initiative Amendment (NIA) is the only way to resolve our Constitutions problems in the long run. There are a number of stop-gap measures we can take without amending the constitution, but these would be just as hard to pass as the NIA, so there would be little point in wasting our energy on them. Once we give the power to amend the Constitution back to We the People, there are a number of measures we can take to restore the balance between competing interests.

1. Increase the number of Senators

The Constitution provides for two senators to represent each state. This has led to many problems, chief among them the fact that California, with 35 million residents, has the same number of senators and the same relative power as Delaware, with under a million. This imbalance leads to defeats for issues of interest to large states, such as gun control.

The U.S. Senate was modeled on the House of Lords. Like the Senate, the Lords became a barrier to passing bills for the common good. The House of Commons partially resolved the problem by increasing the number of Lords. We, the People, could resolve the Senate problem by adding another 100 Senators to be elected at large. By definition, these Senators would represent a larger constituency than any of the current Senators. Small states would still have disproportionate representation, but nothing could stop one of the small-state senators from running at large. Such a candidate must appeal to a broader electorate than one running in a small, homogeneous state.

Other, more drastic measures may be taken. The Senate could be abolished altogether, or Senators could retain the ability to block bills (which is their primary function now) but only for three years.

2. Elect the Supreme Court

Life appointment for Supreme Court Justices was intended to free them from political pressures, giving them liberty to vote their conscience. This idea never worked very well, since the Justices are nearly always members of the elite classes. Recently, the idea of apolitical Justices must appear a cruel hoax. Observers can usually predict which justices will join a majority. Presidents appoint younger and younger justices to prevent the opposing party from gaining a majority on the court. Retiring justices choose the terms of like-minded presidents to give up their seats. The Court has actually become a third legislative body, one with even less variety of opinion than the Senate.

We, the People, should make the Court responsible to us by forcing the Justices to run for election every seven years. Renowned jurists who can't get seats on the current, highly politicized court, should be happy to run for such a prestigious post. Presidents could still fill vacancies with the consent of the Senate, but they would be forced to make better choices if they want their appointees to withstand an electoral challenge.

3. Normalize the Laws

Another measure would be to remove the appellate responsibilities from the court, or abolish the federal bench entirely. The Federal Bench exists side-by-side with the state courts, with many of the same responsibilities. All courts should be combined into a single, national system of district courts and appellate bodies. Instead of striking down laws they deem improper, the judges in this system could replace the offending laws with others that have been passed in other states. Many states have similar legal codes already. This blending of federal with state authority would discourage state legislatures from passing frivolous laws that pander to the electorate.

This system would also discourage well-heeled groups like ALEC from changing the laws, state by state, to favor corporations and the wealthy. Judges would be free to ignore changes made by ALEC and other groups in favor of more moderate laws.

Lawyers should be allowed to practice in any state, since the laws would, over time, tend to be similar. State Bar Associations would lose their monopoly control of the legal profession. Legal professionals could practice in any state without fearing law suits from the State Bar. The cost of legal assistance would decrease, enabling ordinary people to better afford lawyers.

4. Abolish the Electoral College

We, the People, should elect presidents by majority vote. If no candidate achieves a majority, we should hold a runoff election. Third parties would be able to participate in elections without fear that their participation would defeat candidates with whom they agree on most issues.

There is currently a National Popular Vote movement (NPV) to sidestep the electoral college by passing laws in each of the states. These laws commit the states to cast their electoral votes for the candidate who wins the majority of all votes cast in all states. NPV flips current presidential campaigning on its head. Candidates would spend most of their time and money in the largest states instead of in the key swing states.They would have to take positions on important issues instead of avoiding them.

NPV avoids the Amendment process but ends up with laws that can be repealed without using the Amendment process. It also fails to institute a runoff system, as described above. It does not encourage third party candidates, since it will rob them of any electoral votes they might have gotten using the current electoral system. This could lead to appeals through the courts, throwing elections into confusion for other reasons, such as when a third-party argues that the anti-electoral college law prevents third parties from getting the votes necessary to appear on ballots. Current election laws are a tangled thicket that may cause unforeseen problems.

The instability of the NPV, which could be undone by the votes of only a few states (assuming it ever passes) will lead to more electoral confusion, not less. The supporters of this plan have a good idea, but the execution would likely be chaotic and reversible within a few years. NPV will go into effect when the states that have adopted it have enough electoral votes.

NPV now has about 50 per cent of the states necessary to put its plan into action. From here on, however, it will run into the same problem of the electoral college, only in reverse. Each state that passes NPV will now be a state that benefits from the current situation.

Another movement, much less realistic, to reform the electoral college would divide the nation into 50 new states with equal populations. The logistics of this proposal make it impossible. State governments are huge, unwieldy bureaucracies that have taken root in one place for up to 200 years. Moving one of these bureaucracies to a new location would create a complex mess and cost a fortune. Moving 50 of them might take another 200 years.

5. Undo the Corporate Strangle Hold on Our Laws

In the late nineteenth century the Supreme Court discovered that the Due Process Clause of the Fourteenth Amendment applied to corporations, though they couldn't figure out how to use it to help African-Americans. In 1890, Congress passed the Sherman Anti-Trust Act to regulate corporations. The Courts permitted the Sherman Act to be used against Unions, which it declared illegal combinations as defined by the law. In United States v. E. C. Knight Company (1895), the Supreme Court upheld the appeal of the American Sugar Refining Company, which controlled 98 per cent of sugar refining in the U.S., because this control did not constitute a restraint of trade.

During the last years of the twentieth century, Congress responded to public concern about corporate lobbyists influence in politics by passing modest reforms. In Citizens United v. FEC (2004), the Supreme Court reversed much of what reformers had accomplished. In his dissent, Justice Stephens cited earlier Court decisions that recognized that corporate spending on elections should be viewed as a business transaction designed for no other purpose than profit-making. Corporations unfairly influence elections with vast sums of money that few individuals can match. Finally, Stephens pointed out that the mere appearance of impropriety fostered by Corporate campaign contributions would have a chilling affect on voter participation.

Stephens' arguments fell on deaf ears. The Court, as so often before, sided with corporations against the interests of ordinary citizens. One protection for We the People would be to limit the power of the Court by limiting its terms and making it easier to overrule their decisions with a national initiative. Critics of the Citizens United decision have proposed a Constitutional amendment to overturn it. A constitutional amendment would require majority votes of both houses of Congress and passage by three-fourths of the state legislatures. The amount of time, energy, and treasure necessary for the effort is enormous. This massive effort, involving millions of citizens, is required to counter the opinions of five Republican Justices. Nothing about our republic is less democratic than this proposition.

An amendment should be passed outlawing corporate spending in political elections. Laws should be instituted imposing heavy penalties for corporate officers who authorize anonymous spending from the corporate coffers.

Our Decrepit Constitution: Slavery by Another Name

During the last days of the Civil War, Congress passed the Thirteenth Amendment. This amendment freed all the slaves in perpetuity, including those not yet freed by the Emancipation Proclamation. The Fourteenth (1868) and Fifteenth (1870) Amendments followed within a short while.

The Constitution was not strong enough by itself to protect the newly minted rights of freedmen. The government posted federal troops in the states of the former Confederacy to enforce the law. Freedmen--former slaves--voted in elections for the first time. African-Americans were elected to state offices, helped by laws that made former Confederate office holders ineligible to run.

The freedom and justice promised by the Fourteenth Amendment was short-lived. The Ku Klux Klan began intimidating and murdering Republicans and African-Americans in 1868. The Klan murdered Republican organizer George Ashburn in Columbus, Georgia, on March 28, 1868. The Klan published a pamphlet intended to slander Ashburn and intimidate anyone who might try to take his place as an organizer. The pamphlet charged that Ashburn was living with an African-American woman and described the place of assassination as a brothel.¹

Nine men, described as prominent citizens, were arrested and brought to trial before a military tribunal. Before they could be tried, the Georgia legislature accepted the Fourteenth Amendment, which was the condition set for reentering the union. The military government was dissolved and the prisoners released. No one was ever tried for Ashburn's murder.

A group of African-American Republicans marched from Albany to Camilla to attend a political rally in September, 1868. White southerners ambushed them in Camilla's Courthouse Square, killing 12 and wounding many others. The white men kept on attacking the group as they retreated along the road back to Albany. Other similar massacres occurred in South Carolina and Alabama.

Some political leaders were intimidated or imprisoned. T. G. Campbell described how he argued before the Georgia Legislature that he and other freedmen should be allowed to speak. While he was speaking, the white legislators put their hands on the butts of their pistols and made threatening gestures at him. Campbell gave up after eight days of argument. Later he took office as justice of the peace and organized a group of 300 African-American horsemen to protect himself from the Klan.

Campbell could perhaps protect himself from violence within the enclave of freedmen he organized along the Georgia coast, but he could not protect himself from miscarriage of justice perpetrated by his white enemies. Campbell was charged with malfeasance in office and brought before a local judge. He was convicted and immediately jailed. Campbell spent the next year and a half being shuffled from jail to jail. His wife tirelessly worked to free him, but nothing she did was of any use. Judges avoided him. New trials were arranged, but with each new trial came demands for new documentation that had to be found and delivered to the court.

Finally, Campbell's wife secured an order from the U.S. Attorney General that the case be moved to a federal court. Campbell believed that he was about to be cleared, but his lawyer failed to file the proper papers and his case was dismissed. After the dismissal in federal court, Campbell was sent to a prison camp where the prisoners were worked from dawn to dusk and beaten if they fell behind the other workers. This system of forced convict labor replaced slavery to a certain degree. Campbell's wife interceded for him with the camp overseer and succeeded in getting him a job more suited to his age. He was sixty-three when he entered the camp in 1876.²

Following the passage of the Fourteenth and Fifteenth Amendments, Congress passed several Civil Rights Bills to protect the civil rights created in the amendments. The Supreme Court set about methodically destroying these rights in a series of decisions that ran counter to the spirit and the letter of the amendments.

In Blyew v. United States (1871), the Court ruled that the Civil Rights Act (1866) did not affect the witnesses in a case. The Bill specifically states that all persons born in the United States are citizens and that citizens have a right to give evidence in court cases. In Blyew, two African-Americans were denied the right to testify by Kentucky state law. The Court construed the Civil Rights Act to apply only to principals in court cases, not witnesses, despite the clear intent of the law, and affirmed the ruling of the Appellate Court. In this case, the principal, a blind, 75-year-old African-American woman, was the murder victim. Since she was dead, the Court ruled, the federal court had no jurisdiction in the case.

In United States v. Cruikshank (1876), the Supreme Court ruled that the Enforcement Act of 1870 was only binding on state actions, not individuals. Using this logic, the Court overturned the convictions of two white men who had joined the Colfax Massacre in Louisiana, when over 100 blacks were murdered by a white militia. The Congress had intended this Act specifically to address the actions of the Ku Klux Klan, so the Court ruled exactly counter to the purpose of the Act. The Court's action left the freedmen in the south at the mercy of the Klan and numerous other private militias. Their action returned African-Americans to their pre-War status, when an African-American could be raped, murdered, or tortured by a white with impunity.

In the Civil Rights Cases (1880), the Supreme Court ruled likewise that the Fourteenth Amendment did not apply to private citizens, like railroads, hotels, and the operators of public amusements. These individuals, said the Court, had the right to choose the people they wanted to associate with, regardless of what the Fourteenth Amendment said. Justice Harlan, the sole dissenting voice in these five decisions, reminded the Court that private railroads were by law public highways, that innkeepers had long been held to be public servants of a sort, and that public amusements are maintained under a license coming from the public. No state, said Harlan, nor any corporation or individual acting under state authority for the public good, can discriminate against freemen or citizens. These rulings put an end to efforts by Congress to ensure civil rights for African-Americans and ushered in an era of segregation and second-class citizenships.

In U.S. v. Harris (1883), the Supreme Court once again ruled that federal courts had no jurisdiction in cases of murder or assault. These cases were matters for the states. It did not matter that the persons assaulted were African-Americans and the assailants were a group of Ku Klux Klansmen. In Harris, the Klansmen dragged four African-Americans from their jail cells and beat them, one of them to death. Although Federal Law intended to stop such violations of African-American civil rights, as authorized under the Fourteenth Amendment, the law was unconstitutional because it usurped the rights of the states. Harris also ruled that the sheriff who had custody of the African-Americans who were beaten could not be held liable under federal law because he was liable only for his actions, not his inactions. Under this ruling, depriving a person of his life is not the same thing as depriving him of his Constitutional rights, and inaction is not a form of action.

Not until the 1960s did the Supreme Court repudiate the extreme racism inherent in all these rulings (and others besides). The Constitution failed to protect individuals from crimes committed against them, even when Congress explicitly created laws saying that it should.

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1 Radical rule : military outrage in Georgia: Arrest of Columbus prisoners (Louisville, Ky., 1868), http://books.google.com/books?id=QEwTAAAAYAAJ&pg=PA16&lpg=PA16&dq=george+ashburn+murder&source=bl&ots=u4jYy1SKzI&sig=csGygOILiQ6j5e-RfFFGKQ-9Ha0&hl=en&sa=X&ei=_Hh9UcibCpTG4APiooDgCg&ved=0CHoQ6AEwCQ#v=onepage&q=george%20ashburn%20murder&f=false. Since this pamphlet declares in its preface that its intent is to convey the proper impression of military despotism to the northern mind, its content must be treated as completely unreliable.

2Campbell, T.G., Sufferings of the Rev. T. G. Campbell and his family, in Georgia (Washington, 1877), http://openlibrary.org/books/OL22894692M.

Kiobel v. Shell: Supreme Court Gives Corporations A Break

In an important case, Kiobel v. Royal Dutch Shell, the U.S. Supreme Court has once again ruled in favor of corporations and against individual human rights. Court observers should have had no doubt about the resolution of this case. The U.S. Chamber of Commerce, a powerful lobbyist for corporate interests, has made its opinion known. Businesses around the globe, said a spokesman, are being punished in U.S. courts with costly, reputation-damaging litigation.

Neither the Chamber of Commerce nor the Court seem interested in the crimes committed by corporations in these cases. These crimes are the worst sort of human rights abuses.

Filartega v. Pena-Arala (1980) was brought by the sister and father of Joelito Filartiga who was tortured and killed by the Paraguayan government. In Kadic v. Karadzic (1995), muslims and Serbians charged Radovan Karadzic, president of Srpska, for acts of rape, torture, extrajudicial killing, and genocide committed by soldiers under his command.

In re South African Apartheid Litigation (2004) was brought by South African citizens against multi-national corporations for aiding and abetting apartheid, extrajudicial killing, torture, cruel, inhuman or degrading treatment, and denationalization. The corporations involved in these lawsuits were Daimler, Ford, General Motors, and IBM. This case has not yet been brought up on appeal. Its fate is doubtful, given the Court's decision in Kiobel. All these cases have been brought under the Alien Tort Statute of 1789 ("ATS"), which gives U.S. District courts the right to try cases that originate in foreign countries.

ATS has been invoked in law suits 154 times since 1995.

The Supreme Court tolerated ATS until victims began targeting corporations. One law journal article estimated that continued prosecution under the law might cost corportions $6 billion over the next few years and cause multi-national corporations to stop doing business in countries that are notorious violators of human rights, like China. The article called this a nightmare scenario, while admitting that it hasn't happened yet.

An alternate scenario could be that multi-national corporations begin to protest human rights violations in countries like China to protect their bottom line. Then human rights violators will stop denying rights to their citizens because they need foreign capital to survive. One advantage of ATS is that it allows victims to sue for damages, while other international human rights laws hand out criminal penalties. The cash awards permit human rights law firms to take the cases on contingency and continue to represent victims in other cases.

The chances of either scenario happening were diminished by the Supreme Court, which rejected the arguments of human rights victims in Kiobel. Cases filed under ATS had two characteristics that bother the conservative justices on the Court. First, the statute can be used against corporations, which the Court has shown an eagerness to protect. Second, the statute can be used for any violation of the law of nations, now known as international law, which the conservatives on the court hold in contempt.

Justice Scalia proudly boasts he does not cite the opinions of foreign judges in his analyses of Constitutional law. He cites a number of areas where European law differs from American law as the reason for this practice. European courts, he says, have declared homosexual sodomy legal; abolished the death penalty; banned political donations for periods of time before elections. ATS specifically mentions offenses under international law. Using ATS forces American District Courts to become interpreters of international law.

The differences Scalia cites between U.S. and European law do not represent instances where Europe is wrong and the U.S. is right. They are instances where Scalia personally disagrees with European law, but where millions of Americans would accept the European position.

In his opinion in Kiobel, Chief Justice Roberts used a concept, presumption against extraterritoriality, that has not been well-defined. Roberts rejects the petition of Kiobel for redress against Shell Oil Company because accepting the petition might result in discord between nations. This decision is a transparent effort to resolve the claim in favor of a multinational corporation, regardless of the merits of the case. Recall that Filartiga was brought by a Paraguayan citizen against another Paraguayan citizen for crimes committed in Paraguay. Kiobel was brought by a Nigerian citizen against a multinational corporation for crimes committed in Nigeria. If anything, there is a closer relationship to the U.S. in Kiobel than in Filartiga. It is hard to view the Court's decision in the current case as anything but a complete reversal of the earlier case.

Roberts decides that the U.S. Supreme Court cannot intercede because the acts of Shell are also illegal under international law and therefore should be tried in an international court. Roberts knows Kiobel won't be tried in an international court, however, because the attorney for the plaintiff informed him in oral argument that no other judicial body showed an interest in taking the case. Furthermore, international courts are familiar with conflicts between countries and have procedures in place to handle such conflicts. Therefore, U.S. entry into the case would offend no one.

The Court's minority also concurred with the majority, making this a unanimous decision. The minority refused to accept Roberts's opinion on extraterritoriality. Rather, they ruled against appellant because they viewed the case as too trivial for action. This is probably the reason why international courts would not take the case, because they are busy with cases involving thousands of victims. The Supreme Court's refusal to uphold Kiobel’s appeal probably means that individuals will have a hard time getting a hearing for human rights violations in the foreseeable future. The international courts are too busy and the U.S. courts don't care.

The legislative agenda of the conservative Court majority proceeds. The Court has chosen groups to favor and others to disappoint. In this case, they have taken an inconvenient law and emasculated it. The judicial tools they use differ, but the result is always the same. Conservatives prosper, progressive languish.

Somewhere in its world of parsed word derivations and historical usages, the Court should find room for justice and equality. They should care whether Kiobel's wife gets compensation for her husband's murder. They should care whether prisoners on death row are innocent or only guilty of being poor and black or brown. They should put on their robes and walk to the courtroom with the humble acknowledgment that they are empowered by the people to administer justice and they should do their duty.

Our Decrepit Constitution: Defanging the Senate

The Framers designed the Senate as a stronghold for prominent men. John Adams wrote that all members of the government should be gentlemen, which he defined as friends and connections of the well-born and educated. In those days, prominent men took pride in their erudition. We know what books Thomas Jefferson had in his library because he donated the entire collection to the Library of Congress after the War of 1812. Jefferson was an American patriot, but no isolationist. His library included an extensive collection of Greek and Latin classics, books in modern European Languages like French and Italian, and a broad selection of subjects from astronomy to poetry. He likely would have laughed at the idea, commonly espoused by today's Supreme Court, that only American laws should be consulted.

Adams himself wrote 10 volumes of scholarly books, primarily on government and law. He was both a scholar and an author, as well as a statesman. He believed in the superiority of the natural aristocracy. Adams believed the aristocracy were the only men who should be allowed to govern the new country. He and other framers believed that democracy was dangerous. He favored not a democracy but a republic which he defined as a government run by representatives of the people, not the people themselves.

The Senate was one of the measures taken by the framers to keep government firmly in the hands of the gentlemen. The framers assumed that fewer members in the Senate would make the positions more highly sought after. Originally, the Senators were to be appointed by state legislatures, rather than elected by the people directly. This method of appointment was thought to add even more assurance that only the best men would be elected to the senate. Senators were to serve for six years. This qualification insulated senators from pressure by the people they were supposed to represent. The framers believed senators should represent the votes of the people, not their opinions.

From the beginning, the Senate was a place where a few men could block progress, the inevitable change brought about by the passage of time. Progress happens primarily because people are changeable. New ideas arise for the popular mind to accept or reject as it sees fit. The framers assured that the public would learn new ideas when they guaranteed freedom of speech and religion. They tried to slow progress by omitting the liberal ideals expounded in the Declaration of Independence from the Constitution. The Constitution did not consider all men equal, at birth or at any other time. It consigns Africans to slavery and the original inhabitants to annihilation by making no reference to the rights of indiginous peoples.

During the first 60 years of its existence, the primary function of the Senate was to prevent any anti-slavery laws from passing. It did this by creating gridlock in the government. Each state had two senators, regardless of its population. The pro-slavery states assured that one slave-holding state would be admitted to the union for each new free state. This tactic meant that the number of pro-slavery senators always matched the number of anti-slavery senators. The admission of California as a free state in 1850 doomed the senate deadlock system and led to the Civil War.

The Senate remained a place where a minority faction could block the will of the majority. The Senate was still the bastion of elitism it had always been. During the twentieth century, the Senate opposed internationalism, preferring a protectionist system that they felt favored the wealthy banking and merchant classes in the U.S. The Senate used its veto power over treaties to wreck the League of Nations. President Wilson intended for the League to prevent major wars by creating a forum where the great powers could talk to each other instead of shooting at each other. Without the cooperation of the U.S., the League failed to prevent the next catastrophic war. The Senate still had more damage to inflict on the world, however, by committing the U.S. to a policy of isolationism. In that isolationism, Nazi Germany arose and grew until it was almost capable of taking over Europe. During the 1950s, the Senate used its filibuster power to block civil rights laws, once again delaying inevitable progress.

After the election of Barack Obama, the Senate used its filibuster power to halt most of the president's fiscal programs. This led to a prolonged recession and suffering for millions of Americans. The Senate, representing the wealthy elite, was not affected by the suffering it inflicted on others. By this time, the U.S. government had delayed facing numerous problems, including drug violence, massive incarceration of its minority populations, two disastrous wars, an enormous and expensive military, the collapse of the middle class, violence in its cities, and a country divided against itself to as great an extent as it had been in the 1850s.

The Framers modeled the Senate after the English House of Lords. The House of Lords performed the same function as the U.S. Senate, that is, rejecting legislation aimed at taxing the wealthy and aiding the poor. The British system was not crippled by a Constitution like ours, however, and in 1911 the Parliament passed a law removing most of the power of the House of Lords to reject or delay laws.

The U.S. Senate was certainly as much a hindrance to progress as the House of Lords. In the 20th century, the Senate kept the executive branch from forming critical alliances, enacting treaties that meant the difference between war and peace, and enacting legislation that provided equal rights to African Americans. In the 21st centure, the Senate became even more obstructive, blocking or delaying numerous judicial nominations and refusing to fund agencies that favored the middle class over Wall Street millionaires and corporate executives.

The addition of another layer of checks allotted to the wealthy class in the form of a powerful Senate is a drag on the government at a critical time in our history. After passage of the National Initiative Amendment, the people should pass initiatives that severely limit the power of the Senate as it is currently defined in the Constitution. The number of Senators should be increased by 100 at-large seats, elected by popular vote nationwide. This will increase the influence of larger states like New York and California, while making each Senator less powerful.

An amendment should pass that limits the ability of the Senate to delay a bill by more than 3 months. If the Senate refuses to accept a treaty negotiated by the executive within 6 months, the treaty will automatically be ratified. These reforms should defang the Senators and turn the Senate into a debating club for the wealthy. Its fangs will be removed.

Our Decrepit Constitution: Fighting the Corporations

Our Decrepit Constitution: Fighting the Corporations

Recent incidents of gun violence are still fresh is the minds of residents of the states of Colorado and Connecticut. Those states have passed strict gun control regulations. Ninety per cent of the population agree that more gun control regulations are necessary, yet the congress is incapable of action. It seems incredible, but it happens because our laws are not democratic.

Senators and Representatives are elected by constituents. Their constituents exercise only indirect influence over their elected representatives. Constituents only vote every 2 years for Congressmen, or 6 years for Senators. The Constitution permits lobbyists to give money to our lawmakers every day. These sums of money are sometimes very large, but politicians need large sums of money to run for office. Just as important, they must avoid ever offending those groups who might give them large sums of money. If politicians offend those groups, their opponents in the next election may receive support from those same groups.

The only politician directly elected by the people (discounting for a moment the anachronous electoral college) is the President. The Constitution surrounds the president with restraints, however. He cannot make laws. He cannot raise taxes. He cannot dissolve Congress and rule by himself, as monarchs used to do. He cannot schedule new elections when Congress refuses to pass his proposals.

All the president can do is talk, and try to persuade the congress to support his proposals. Since political decisions are influenced by money, not ethics, he cannot exercise moral suasion. The presidency, in some respects, is the worst job in the world. Although the president has very little power to influence anything, he is blamed for everything that goes wrong. The president typically begins his term as a popular advocate for change, and ends it as a despised failure. The fault is not his. The fault is inherent in the Constitutional system.

The Framers created a federal system out of necessity. They did not trust a strong government that could become a tyranny, so they created a system that had three checks on the federal government: the House of Representatives, the Senate, and the Courts. This system worked so long as there were no entities strong enough to defy the president.

Stronger entities soon emerged. The first was the faction of slave-holding states. These states eventually attacked the United States directly by forming the Confederacy. The Civil War nearly destroyed the Union and made it impossible for successive entities seeking power to use violence to succeed. The costs of civil war were recognized as unsupportable.

Other entities seeking power did evolve. These entities used money to buy influence in the Congress and the Courts. Giant corporations formed whose influence dwarfed the influence of the president. The government struck back, first by passing anti-trust laws to keep the corporations small enough to control.

Progressives at the state level passed laws to control corporate power within their borders. Progressives passed initiative and referendum laws because the only power strong enough to combat the corporations resides in the people themselves. These new laws controlled the corporations to some degree. California was able to control the Southern Pacific Corporation (SP), which had flourished through government subsidies. SP was a local entity that could be controlled through local (state) laws. Other states set up Utility Commissions under various names to control corporations and protect the people from monopolistic utitlity rates.

These efforts proved successful for awhile. Corporations continued to grow larger, however. The common people were severely weakened by the Great Depression, while the corporations and the people who ran them prospered. World War II brought the beginnings of great prosperity to the corporate elite. The Korean War ushered in an era of massive spending on military weapons. The development of atomic weapons caused unprecedented amounts of money to be spent on technology. This level of spending continued until the end of the Cold War, in 1989. Corporations receiving government subsidies for research and contracts for technology could not ship jobs oversease because weapons series were considered too dangerous to trust to foreigners.

This situation changed abruptly with the advent of consumer electronics products like radios, televisions, and audio equipment. These products used the same technological advances that were funded by the U.S. Government for rockets, guidance systems, and the space program. Corporations began saving money by shipping jobs overseas. Silicon chip manufacturing, a thriving business in Silicon Valley in 1969, was moved to Singapore, Japan, Taiwan, and eventually China. Instead of creating employment opportunities in the U.S., corporations fed money into the economies of other countries.

President Reagan led the assault on American unions when he fired striking air traffic control workers. Workers at Atari in San Jose threatened to unionize. In response, the corporate management closed down the San Jose plant and moved their jobs overseas.

Gradually, job opportunities for U.S. workers dwindled. The gap between the common people and the well-off widened. The Supreme Court thwarted attempts to damp the influence of money in electoral politics. The Republicans began suppressing the votes of African-Americans, Latinos, students, and the elderly. Republican governors rolled back hard-won abortion rights.

The U.S. looks more like a third-world country all the time. In those countries, the wealthy few rule the numerous poor. The common people have no chance to redress grievances because they have no power. In other words, there is no democracy.

The U.S. Constitution is badly in need of repair. It needs amendments to establish a right of privacy between a woman and her doctor; to curb the ability of wealthy corporations to buy elections; to prevent politicians from cashing in with legal bribery, otherwise called campaign contributions; to stop publishers from exploiting the work of authors and musicians; to stop corporations from buying up disused patents and using them to blackmail legitimate innovators; to stop gun dealers from supplying criminals with death-dealing weapons; to stop energy companies from destroying the environment.

The list goes on and on. There are far too many potential amendments ever to reach the end, especially when every one of them will be fought with skill backed by money. There is only one solution to this problem. The people must adopt a national initiative which would give them what they never had, a true democracy.

The National Initiative amendment would do just that. All groups advocating a constitutional amendment should join together and support this one. Once this amendment passes, all further amendments will have a much lower bar to pass: They will be passed by a majority of the American people.

Our Decrepit Constitution: The Courts

Our Decrepit Constitution: The Courts

The executive branch quickly found ways to circumvent the rigid language of the new Constitution. Alexander Hamilton revealed that the federal government had implied powers not enumerated by the Constitution itself. Hamilton determined that among these implied powers was the ability to form a corporation, if the government found that it needed a corporation to fulfill its Constitutional duties. These implied powers exist in the interstices between the clauses explicitly granting powers to the government. According to Hamilton and his followers, the government did not need to follow the precise dictates of the Constitution, but could take actions that it felt were merely implied by the document.

The Framers themselves did not agree on such and important right as the right to free speech granted in the First Amendment. John Adams's administration passed the Alien and Sedition Acts (1798) which gave the administration the power to imprison and deport opponents to the policies of the president. Adams proposed these laws to attack the French during the Quasi War. Adams did not consider the law unconstitutional because the U.S. was fighting an enemy. Just ten years after the constitution was adopted, the president demanded extra-legal powers during wartime.

The Framers failed to recognize the importance of corporations in commerce and manufacture, since corporations were small and few. The Framers did not make any rules governing corporations or protecting citizens from injuries that corporations might cause. Injuries inflicted by corporations have had extensive repercussions in the country and these injuries have seldom been corrected by law. Fortunes made by manipulation of stock or monopolization have remained the property of the men who committed the crimes. Corporations that cause massive dislocation in unemployment and property devaluation seldom pay any penalty for their actions. The Constitution does not enumerate the powers and rights that might be granted to corporations that are different from those granted to individuals. The bill of rights for corporations is lacking.

The framers did not make allowances for a standing army. They instead decided to rely on militias, guaranteeing that people could keep and bear arms in the second amendment. Militias proved incapable of defending the country, however. The weakness of militias was proven in the revolutionary war, when militias broke ranks and ran from British regular soldiers at the Battle of Camden. Camden resulted in 1000 casualties and 1000 prisoners taken by British.

More evidence of the unreliability of militias followed. In response to the need for security, the federal government has built a huge arms industry around its military forces. Neither the forces, nor the industry were foreseen by the Framers. The Constitution should contain guidelines for government oversight of the military and rules for the regulation of the arms industry, which has become a potent force for military aggression and congressional corruption. The Second Amendment should have been repealed after militias ceased to be relevant to the defense of the nation, but instead has continued in force to the detriment of law enforcement and the security of the population.

Treason is the only crime defined in the Constitution. That definition was not clear in the decades after ratification. Chief Justice John Marshall acquitted Burr of treason on the grounds that Burr had committed no overt act, as required by the Constitution. Thomas Jefferson disagreed.

Other clauses deserve amplification. The Intellectual Property clause has been captured by the publishing industry as if it had been written to provide them a perpetual monopoly. The clause was too vague even at the time it was written, since there was already a specific idea of what a law governing patents and copyrights should look like. The Framers wanted to assure there could be laws written governing copyright and patent. They did not assure that those laws could not be abused in the future. On the contrary, the lack of specificity in this clause made its exploitation by corporations inevitatble. Corporations exist to make a profit. Monopolies are the surest source of profit, so every corporation seeks to become a monopoly. The Intellectual Property clause in the constitution apotheosizes an issue where debate is sorely needed. Corporations hav taken advantage of Intellectual Property being blessed by the constitution to act against the best interests of the country.

Here again, the Framers were more concerned with the rights of property owners (publishers and industrialists) than with those who toil with their hands (writers and inventors). They therefore left the terms of the law open for the property-owners to fill in as they see fit. The current intellectual property complex, like the military industrial complex, is a side effect of the Constitution. While the Constitution has created these profitable entities, it gives no guidance on regulating them.

The checks and balances imposed by the Constitution are all intended to thwart the will of the majority, which Madison called the majority faction. The bicameral legislature sets up a smaller, more prestigious Senate which is intended to represent minority interests of property owners and the elite. The U.S. Senate has evolved into the kind of body the Framers intended. It is filled with rich, famous, and powerful people. The Senate provides a strong check to the lower house, which tends to be more representative of the common people, although its members are also well-off.

The presidency has veto power over the legislature, providing another check on the power of the majority. The judiciary provides yet another check.

The judiciary has always been a politicized body, since John Marshall imposed his federalist views on Republican administrations. Bush v. Gore, Dredd Scott, and Citizens United were all highly polarized decisions decided along party lines. The Supreme Court was acting in these cases as the last line of defense against a majority faction. The Court is thus a legislative body in itself, the third legislative body set up by the Constitution. The Supreme Court is the least democratic of the legislative bodies. Its nine unelected members serve life terms. Even the College of Cardinals of the Catholic Church is more democratic because it has more members so more viewpoints may be represented.

John Marshall has been praised for establishing the Supreme Court as a respected body. In the last 30 years, the court has lost a great deal of its prestige. The Court has handed down politically charged decisions like Citizens United, Bush v. Gore and Jones v. Clinton. Important decisions are made along strict party lines. The Framers envisioned the Supreme Court as a neutral body where decisions would be made by respected jurists after careful deliberation. Instead we see a court where decisions are made with no deliberation at all. Opinions have become mere formalities tacked tacked onto decisions made by political hacks. Jurists are chosen for the court, not in recognition of their legal stature, but by their ability to hew the party line and by their youth. Politicians who wish to control the court far into the future pick young judges to help them perpetuate a political philosophy. These judges are too young to have distinguished for their wisdom or scholarship, but the political parties are looking for people who will follow their leaders. This practice is reminiscent of the Soviet aparatchiks, functionaries who never made a move without checking first with their political leaders.

Large corporations grow stale. They become unable to adopt new methods of business, even when adopting new methods is the only thing that can save the company. The constitution is an example of an outmoded way of doing business. The U.S. needs to change its way of doing business if it wants to survive.

Our Decrepit Constitution: 3. The Silver Bullet

Our Decrepit Constitution: 3. The Silver Bullet

On December 12, 2000, the US Supreme Court decided that George W. Bush would be president of the United States. The Court acknowledged that the Constitution left the election of the president to the people, but decided nevertheless to intervene, something it had never done before.

The Constitution furnishes almost no guidelines for the election of the president, one of the most important political undertakings of the government. The framers intended for the president to be chosen indirectly, by electors elected by the people, not by the people themselves. The framers intended for the electors to meet after the popular vote was taken. Only then would the electors decided the actual winner of the election.

As usual, however, the framers omitted the process to be followed in case of dispute. In particular, they did not specify that the Supreme Court, an unelected body of judges who held lifetime appointments, should not determine the outcomes of elections. In 2000 this led to the election of a president by five such judges after 200 million citizens had cast their votes in the general election. Furthermore, all five of these judges had affiliations to the Republican party, whose candidate they chose as the winner. These judges showed no reluctance to support their party's candidate, despite the express intent of the framers to lift the Supreme Court justices above the fray of electoral politics by giving them lifetime tenure.

Over the years, the citizens of the US became concerned about the influence of corporations and large political contributions. The Congress, responding to the will of the people, passed laws that regulated contributions from corporations. In Citizens United v FEC, the Supreme Court ruled that the concerns of the people were groundless. The Court ruled that corporations were nothing more than associations of individuals and as such were entitled to the same rights as individuals under the First Amendment.

This ruling supported the Court's belief that the rich had more rights to express their opinions, since it is obvious to everyone that the rich can buy more speech than the poor. The Court delared that there cannot be too much speech. Through this ruling, the court overruled the people of the United States, whose common sense tells them that corporations spending vast amounts of money wield inordinate influence over politicians and their decisions.

In Citizens United, the Court once again found a way to support the Republican party. They voted five to four along party lines to permit unlimited corporate contributions. Many groups have been proposed that an amendment to the constitution would resolve this issue. The impartiality of the supreme court is fundamental to the design of the Constitution. The framers designed the Constitution to operate by checks and balances. Without an unbiased Supreme Court, their design fails.

The Constitution conceals this flaw and many others. The framers intended the Constitution to be amendable, yet only 17 amendments have been enacted, other than the Bill of Rights, in over 200 years. There are several reasons for this failure of the original design.

1. The United States has many more states than it had originally. When there were only 13 states, the number of legislatures required to ratify an amendment was 10. Today, when ratification requires the approval of 38 state legislatures, the amendment process should be at least 3 1/2 times as difficult.
2. The population of the United States is more than 100 times what it was in 1787. Persuading a number of people of the necessity of a change increases with the number of people who must be convinced. The people do not directly vote to ratify amendments, but they do vote for the legislators who must make the decision.
3. Both the larger number of states and the larger population make the amendment process more time-consuming.
4. The increase in time and energy, and above all money, that can be spent to defeat an amendment makes it unlikely that an issue can achieve a 3/4 approval. Money can be spent liberally to confuse the issues. Confusion will make the amendment less likely to pass.
5. The vast amount of money that must be raised to ratify an amendment will make it difficult to pass a complex amendment, such as one that abolishes the Electoral College.

Numerous amendments have been proposed to overturn the Citizens United decision. The opponents of this decision correctly view it as a threat to democracy itself. All of these amendments, however, share a common flaw. These amendments seek to correct a single decision of the Supreme Court, but history has shown that the enemies of democracy will soon find another way to suppress the rights of the people. Given the impediments blocking any Constitutional Amendment and the large errors and oversights in the Constitution itself, there is only one solution. The amendment process itself, as described in Article V of the Constitution, must be changed.

The change required is simple. The Constitution must be amended by referendum and initiative, using the same process as already exists in many states. Such an amendment, known as the National Initiative, has already been proposed.

The existing initiative and referendum laws were proposed during the Progressive Era (1890 – 1930). At that time, people were concerned that big corporations were controlling state legislatures. Corporations are once again threatening our democracy. We need the National Initiative, the Silver Bullet that can rectify many of the Constitutions problems and return the government to its rightful owners, the People.