The Constitution has given representative government a bind the Founding Fathers never intended: an unelected official whose exercise of high office exceeds its intent, making him the most powerful lawmaker.
It could be any Justice of the Supreme Court, under the construct it presently bears. It gives the legal profession a sway over history that it hasn’t earned, and can’t because it is entirely human in its practice. Though the Constitution intended that Justice be served by the rule of law, we have instead in practice rule by the profession of the law. And it comes tainted with self-interest, underscored by the very human desire to eat well.
How else can the Supreme Court’s 2010 Citizens United decision be explained? It held that a corporation has the same First Amendment protection that a person has, because a corporation qualifies as a person: after all,it is guided by a board of people. But any further resemblance is a long, long stretch. Does it have blue eyes, or brown? Does it part its hair left or right? Or is it bald? Who trims its toenails?
Moreover, how often does an individual’s wallet match a corporation’s? A few do. Here lies the crux. Some of the very rich are walking holding companies. They are twice leveraged by the First Amendment. When they speak as individuals, many admirers listen. They spin the same message then through their corporations, which are freed by Citizens United to spend whatever they please to do it.
It puts representative government and the Constitution in double jeopardy in the 21st century, with WeThePeople too easily drowned out by corporate power. Which is just the way the multinationals are playing it, giving them essentially a free hand in global trade, leaving American workers pitted against the cheap labor of Asia, paced by the state-funded factories of China, thus also saddling the American economy with mountainous trade deficits.
The corporate powers have little to fear, since the legal system and the law profession are too easily tilted by money. The CEOs haven’t gotten where they are by failing to see the advantage that comes of retaining the most prestigious and influential law firms to protect their interests. So however much Citizens United bends the Constitution, it hardly comes as a surprise from a panel formed entirely of highly esteemed practitioners from this system.
Always startling is that decisions of such weight come on 5-4 votes. Whoever casts the deciding vote, which often in this century has been Justice Kennedy, that unelected official bears the most decisive hand of both government and history. It makes a strong case for a constitutional Amendment that allows the Court to change existing law or establish precedent only by votes of 6-3.
That’s the standard by which treaties are made, by which vetoes are overridden: actions that stand only if they’ve been ratified by two-thirds of the Senate. Serious turns of the law should require the same margin. That way no unelected Justice could reign at any moment as the most powerful hand of government. That way the Constitution would keep the balance that tripartite government intends. And no Justice would ever loom larger than Justice itself.
Frank Mensel — May 2015