Party of 1

Jeffrey Rosen, in Sunday’s Washington Post, speculates that Barack Obama may be better-suited to be a Supreme Court justice than a chief executive. “It would be unusual, but not difficult, for Obama to get himself on the Supreme Court. He could nominate himself to replace John Paul Stevens, for example, or he could gamble and promise Hillary Rodham Clinton that he won’t run for reelection in 2012 in exchange for a pledge of appointment to the next vacancy…. As a senator, he voted against the confirmations of Roberts and Alito, and GOP lawmakers might hold that against him in his own confirmation hearing. Yet … Obama might get some deference as a former president, at least from senators who would rather have him on the court than in the White House.”

Accompanying Rosen’s article is an unscientific online poll asking whether Obama is best suited to be president, senator, or high-court justice.  As of this writing, with over 9000 votes cast, 80% of respondents chose — none of the above!  Is this really the Washington Post website, or has a survey from Hot Air or Red State somehow been placed on the site? Remember, it’s strictly unscientific….

Generally, Daniel Henninger is one of the Wall Street Journal’s less unpleasant  op-ed columnists, but I see little point to his Thursday column, which amounts to little more than gloating over his side’s victory in the Supreme Court’s Citizens United decision. I don’t see much engagement with the issues raised in the case, such as the matter of the nature of the corporation — which, as far as I am concerned, was dealt with more substantively in the paper’s letters column (for instance, here and here).

Henninger notes that Justice Stevens cited a lengthy body of precedent according to which “corporations could be comprehensively regulated.” He then applauds Justice Scalia’s ridicule of Stevens’s “corporation-hating quotations.”  Henninger’s own gloss on Stevens: “Corporations themselves are anathema.”

Scalia, of course, could say anything he wanted to in his opinion; he had the votes to get his way. That doesn’t mean that his arguments hold up. It doesn’t follow that if someone holds that corporations should be susceptible to being regulated, he must hold corporations to be “anathema,” or harbors “hatred” for corporations. From the point of view of those who hold corporations to be liable to regulation, it would be silly to “hate” them, since the hatred would be directed at what is, in their view, a legal abstraction. It is, of course, possible to work up hatred, or at least anger, toward those who demand everything on their own terms, or unlimited prerogative.

Henninger: “This public-private tension is an ancient and never-ending debate in the U.S.” But nobody really knows how much of the “tension” will survive in the wake of this decision, which gives even more prerogative to entities that already were less restricted in this country than practically anywhere else in the world. Henninger and George Will want the rules of the game written on their own terms, so that their side always wins….

“In fact, the Republican tradition of campaign finance reform in which I stand dates to the trust-buster, Theodore Roosevelt.” So writes former Senator Warren Rudman in Friday’s Washington Post. Rudman favors new public-financing legislation in the aftermath of the Supreme Court’s Citizens United decision.

I’m afraid that Rudman may be out of luck when it comes to invoking the memory of Teddy Roosevelt.  George Will and Glenn Beck don’t think much of “TR.” Beck seems to think that he’s some kind of Communist — never mind that he’s on Mt. Rushmore….

I’ve come across an editorial from the Las Vegas Review-Journal from yesterday (Sunday), concerning the Supreme Court’s Citizens United decision and related matters. One hardly knows where to begin — although the piece merits attention, since it is representative of what so many Americans are  to dispose to believe. One can only say that baloney is baloney, no matter how you slice it.

The author, Thomas Mitchell, wants to defend the Supreme Court’s decision on the basis of natural law. He insists that the Constitution does not grant rights — it only acknowledges the rights conferred by nature and prohibits Congress from infringing upon them. That is fine as far as it goes, I suppose. Natural law is an honorable tradition. After all, a government appropriate for human beings should be based upon what human beings are — that is, their nature. I just don’t know whether Thomas Mitchell is competent to expound upon the implications of natural law.

Months ago, just after the Citizens United case was argued before the Supreme Court and Justice Sotomayor in her questioning raised the matter  of the legal status of the corporation, I monitored the comments posted on the Wall Street Journal letters page. Someone asserted: “The state creates neither corporations nor land.” The thought occurred to me at the time that this individual seemed to think that the creation of corporations head been described in the Book of Genesis, along with the creation of land, air, water, and the animals who would end up filing onto Noah’s Ark in pairs.  I should have mentioned at the time that, in my Bible, God rested on the seventh day — whereas apparently that was when He created corporations.

I don’t know what it will take to get it through people’s heads that there are no corporations in a state of nature. The point was well made by yet another correspondent to the Wall Street Journal letters page: “Corporations are created by state (and, rarely, federal) law, and none can exist except by government charter. As Chief Justice John Marshall wrote in 1804, a corporation ‘is a mere creature of the act to which it owes its existence.’… the more recent enactment of limited liability company laws should illustrate the point: Before these laws were enacted, there were no such organizations. But now there are.” Nor will it do to assert that a corporation is a mere “association of persons” and therefore obtains its libertarian rights from the rights of the persons so associated. A Fortune 500 corporation is not the same sort of entity as your Friday night poker game, which does not require a government charter — although the game may very well be busted by the police if the stakes are too high. A corporation wants certain things from the government. It wants its liability limited, and it wants agencies of the government to enforce the terms of contracts into which it may have entered. No such entity is found in a state of nature.

The Constitution does indeed prohibit Congress from infringing upon certain natural rights — but it is no stretch to suggest that those are the rights of living, breathing, natural human beings. (Thomas Mitchell doesn’t consider the dissent of Justice Stevens in the Citizens United case, in which, as I understand it, he insists it was always the Founders’ understanding that corporations were to be subject to regulation.) Mitchell expounds upon the philosophy of John Locke’s Second Treatise as though he were a college professor who had written a doctoral dissertation on the matter. He knows that, in a state of nature, people have to give something up to a government of some kind or they cannot survive.

Americans don’t want to concede anything to the state. Mitchell does no more than to expound a dime-store philosophy on the matter. But what is he going to do, if someone bigger and stronger proposes to violate his precious natural rights? Why shouldn’t I then say: No rights apart from the state?

People think they can get rid of the state, but it has been noticed that without such a thing, we don’t find much in the way of civilized human existence, or even beings that we would recognize as human — not much more than the existence of primitive hunter-gatherers or cave people, as a matter of fact. That’s why many thinkers have found the whole “state of nature” concept to be fit for ridicule, except perhaps as a thought experiment.

Rights need be understood in context. They have little or no meaning outside of a setting provided by a government or state apparatus. I am reminded of a statement made by a cranky, exasperated college professor: “What in the heck is a right? Has anybody ever seen one?”

George Will can be awfully flippant about matters like the Citizens United decision. At the same time, I notice that as of Thursday he is attempting to offer reassurances. “Alarmists say the court’s ruling will mean torrential spending by large for-profit corporations…. Corporate contributions to candidates’ campaigns remain proscribed…. If for-profit corporations do plunge into politics, disclosure of their spending will enable voters to draw appropriate conclusions.”

Last week, just as news of the decision was breaking, he was applauding it as “gratifyingly radical.” The more radical the better, we may suppose. But in that case, why not permit direct corporate contributions to candidates? Or, why not strike down disclosure requirements, if you want a “gratifyingly radical” nullification of all restrictions? Justice Thomas, after all, said that  disclosure requirement should go, along with everything else. Just asking….

The Supreme Court’s decision in the Citizens United case has attracted a boatload of commentary. It’s been mentioned that the decision may not be as apocalyptic for progressives as some of them fear. That certainly could be true; we’ll have to wait and see. For me, though, as they say, “It’s the principle of the thing.” In this case, the principle involves the nature and legal status of the corporation.

You’ll have a hard time finding a more apt and sardonic commentary on the matter than Robert Schlesinger’s “10 Questions About the Supreme Court Ruling on Campaign Finance” at the U. S. News site. Excerpts:

“Do corporations have an individual right to bear arms? I mean other than Blackwater.”

“Do corporations have a right to vote? If so, must they have been in operation for at least 18 years? If so, sorry Google.”

“Do corporations have the right to an abortion? (Is that what happened to Conan O’Brien’s TV show?)”

“Are corporations led by same-sex-CEOs allowed to merge? Or is that only legal in Massachusetts, Vermont, New Hampshire, Connecticut, and Iowa?”

Hilarious, or it least it would be if it weren’t so important….

David Kairys at Slate.com: “Money Isn’t Speech and Corporations Aren’t People.”  Amen and amen….

In a development that is sure to provoke I-told-you-so sentiments from libertarian critics of eminent domain, pharmaceuticals firm Pfizer has announced that it will be abandoning its corporate headquarters in New Haven, Connecticut. The private property surrounding the corporate headquarters building that New Haven was permitted to seize as a result of its victory in the Supreme Court case of Kelo v. New Haven lies barren; the promised hotels, stores and condominiums were never built. The New York Times has a report.

I haven’t blogged about the Supreme Court’s decision in the Ricci case involving firefighters in New Haven, which was decided a few weeks before this website was relaunched. Now comes news that a black firefighter has filed suit against the city of New Haven — in the wake of the Supreme Court decision that was initiated by a lawsuit filed by a white firefighter. Richard Thompson Ford at Slate.com fears that the city may be in a “damned if you do, damned if you don’t” situation.

The conflict is over the legitimacy of hiring policies designed to ameliorate “disparate impact.” How has “disparate impact” been manifested in the New Haven case?  “Why didn’t black candidates do as well as whites on the written exam? Black firefighters argue that because whites are more likely to come from families where firefighting is a legacy (for instance, one New Haven captain’s father and grandfather both served as fire chief in New Haven), they are more likely to get help from a network of friends and relatives in studying for the written exam. Few blacks have such family connections—in large part because blacks were deliberately shut out of firefighting jobs until the 1970s, when black firefighters won discrimination suits in New Haven and in many other cities nationwide…. So heavy reliance on a written exam, if it gives an advantage to legacy candidates, could perpetuate the evils of past discrimination.”

It’s not an argument that will appeal to so-called “angry white males” or Barack Obama’s “Bittergate” voters — who may harbor sentiments along the lines of “we’ve done enough for the blacks.” Indeed, much of the rhetoric we hear comes down to a claim that any anti-discriminatory measure is itself discriminatory. Richard Thompson Ford argues: “Although Ricci was often described as a challenge to affirmative action, getting rid of a flawed exam isn’t affirmative action and doesn’t push diversity at the expense of merit…. Disparate-impact doctrine allows us to dismantle these impediments without the finger-pointing that typically accompanies claims of intentional discrimination. We needn’t hunt today for racists to blame in order to eliminate practices that needlessly perpetuate the racism of yesteryear. That’s why the law against disparate-impact discrimination should appeal broadly—to zealous champions of social justice, beady-eyed utilitarians who just want the best person on the job, and jaded curmudgeons who are sick and tired of people playing the race card.”

Chief Justice Roberts and Associate Justices Scalia and Breyer have traveled to Britain to commemorate the establishment of the Supreme Court of the United Kingdom. However, although the name is similar, the constitutional powers of the new court will not be the same as those of its American counterpart. A British lawyer notes: “In the U.K., we want our politicians to decide issues like abortion, not the judges.” A point well worth pondering….