On The Surpreme Court & “Personhood”

Justice is the linchpin of a society.  Without a system of laws that reflect it, a nation’s government will lose its credibility among its governed.  Plato used the Greek word “Dikaisyne” for justice, which translates to ‘morality’ or ‘righteousness.’  Justice is not the right of the stronger but the effective harmony of the whole.  Since his time, a common ideal to reflect justice in codified laws has been the purview of a select body of lawmakers appointed by the state.

The body assigned with interpretation and final execution of federal laws in the United States is its Supreme Court.  Article III of the United States Constitution states, “[t]he judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

The Supreme Court was subsequently established by the first bill introduced in the United States Senate, the Judiciary Act of 1789.  The court convened for the first time in February 1790 in New York City, then serving as the nation’s capital.  From 1791 to 1800, it assembled in Philadelphia, which served as the capital while Washington, D.C., was under construction.  Starting in February 1801, the court began meeting in Washington, where it occupied various sites in the Capitol building for more than a century.  Following the burning of the Capitol by the British in 1814, it met in a private home.

The Supreme Court today is commonly petitioned for 10,000 cases each year, of which they will review about 80.

During its existence, the Court has been frequently controversial.  Some decisions have had long-lasting effects on how the ideals laid out in the Constitution are interpreted.

Frequently, decisions handed down from the Court have been perceived as politicized, as serving elite interests, or discriminatory toward race or gender. As such, elements of society have looked upon the Court as a means by which the existing hegemony is society is maintained.

Two 19th century decisions are illustrative of this.

In 1857, the ruling in Dred Scott v. Sandford denied freedom to a former slave who was taken to a free-soil state.  It essentially confirmed that Blacks had no rights of citizenship, and prohibited Congress from banning slavery outright.  This ruling fueled the slavery issue, which culminated in the outbreak of the Civil War four years later.

In 1896, despite Lincoln’s Emancipation Proclamation and the abolishment of slavery throughout the republic at the conclusion of the Civil War, the ruling in Plessy v. Ferguson stated that “equal but separate accommodations” for blacks on railroad cars did not violate the “equal protection under the laws” provision of the 14th Amendment.  This gave rise to discriminatory practices throughout the American south, Jim Crow laws that harshly segregated Blacks from Whites, and bogus voting eligibility requirements that effectively removed Black citizens from the voter rolls.  These conditions endured until the civil rights campaigns of the 1960s.

These are the two most prominent examples of an application of bias that runs directly contrary to the principles outlined in the United States Constitution.  The preamble to this most revered document makes broad-stroke claims about establishing justice, insuring domestic tranquility, and promoting the general welfare.  Clearly, these decisions accomplished exactly the opposite.   The racist elements of the United States won out convincingly in both cases, and even questioned the personhood of Black men and women born on United States soil.

Many years later, in the 1960s, Malcolm X, Martin Luther King, Jr., and the Black Panther Party asserted by different means and tactics the primacy of institutionalized racism in the United States.  The widespread economic inequalities between races (which persist today) led to more than 100 different riot episodes in 1967 alone.  The 1967 Detroit riot left 44 dead; the Newark riot had 23 deaths.   The implicit failure of the Supreme Court in these cases, as President Kennedy pronounced in a 1962 television address, was its inability to acknowledge racism as a moral issue, “as old as the scriptures, and as clear as the Constitution of the United States.”

The Court’s lack of moral conviction led directly and indirectly to the bloodiest conflict ever fought on American soil, and a climate of inequality and repressed opportunities for Black citizens.  Certainly, I understand the difficulty and the nuances of legislating morality, but these decisions reflect a remarkable arrogance and fundamental disregard for the dignity of human life.  No other western nation has held to institutionalized slavery as long, nor has any other advanced nation had racist presumptions been so baldly codified in modern times by its highest court.

Such decisions suggest only one thing: that the element in American society benefitting from the institution of slavery and the discord of segregation was being well served by the judiciary, and that the judiciary itself was complicit with these sentiments above its responsibility for adhering to the principles of the United States Constitution.

All this serves as evidence of what Henry Thoreau once remarked disparagingly, “law never made men a whit more just.”

Two other Court decisions, more than 100 years apart from each other, have had the cumulative affect of empowering the corporation with “personhood.”  Ironically, the pretense used for such deft manipulation of principles was the 14th Amendment.

The 14th amendment was enacted in 1868, with the intent of protecting the newly defined citizenry for Black Americans.

Section I of the amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Another interpretation of the amendment occurred less than 20 years later, in the 1886 decision in Santa Clara County v. Southern Pacific Railroad.  The case involved disputed taxes the plantiff was seeking from the defendant.  The decision itself was entirely secondary to the following information entered into record by the Court clerk.  It states:

“One of the points made and discussed at length in the brief of counsel for defendants in error was that “Corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.”  Before argument Mr. Chief Justice Waite said: The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations.  We are of opinion that it does.”

This was then inaccurately recorded by the court reporter, and has been used as a precedent ever since: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations.  We are all of the opinion that it does.

It is important to note that this information was not a part of the decision itself, but a portion of the headnotes reference material to the case.  Twenty years later, headnote material had all of its legal merit removed by the Court.  Nevertheless, the consequence of Santa Clara County v. Southern Pacific Railroad was bestowing “human rights” on an artificial entity, the corporation.

In January 2010, in the case Citizens United v. Federal Election Commission, the Court ruled that the First Amendment prohibits the government from restricting political independent expenditures by corporations, associations, or labor unions.  This had the effect of lifting all restrictions on campaign spending by these entities, and upholding that their contributions were a form of “free speech.”

The consequence was allowing the artificial entity awarded personhood in 1886 with the ability to spend as much as he or she wants on a particular political candidate.  (Since gender is ambiguous concerning artificial entities, the appropriate pronoun usage is left to the discretion of the reader.)

The collective significance of these two precedents is staggering.  All the more so when considering that corporations became endowed with their “personhood” at a time when all women, all Native Americans, and even most African American men were still denied the right to vote.

The cases sited in this essay are essentially converses of the same question.  In other words, slavery is the legal fiction that a person is property.  Corporate personhood is the legal fiction that property is a person.

The effect is of the latter is to empower further the already powerful elements of society.  The deep-pocketed corporate entities that already possess inordinate sway of the affairs of government and the republic are now free to promote their agendas, through their selected candidates, with unlimited zeal.  The natural outcomes of such a scenario are debasements of the idea of equal representation, of a genuine citizen voice in our democracy, and the tacit acknowledgement that money is free speech.

I use the cases I have described to illustrate some of the troubling tendencies within the Supreme Court to not act presciently when the consequences to the people of the United States are so potentially enormous.  Much of the weight of upholding the truly virtuous aspects of the United States is entrusted to the Court, and their interpretation carries more long-term weight than any other branch of government.

The Supreme Court in the past, it must be recognized, has acted courageously as well.  Brown v. Board of Education (1954) made school segregation illegal and opened the door for the civil rights movement.  Roe v. Wade (1973) ruled that it was a woman’s right to privacy to terminate a pregnancy, thereby giving her domain over her physical body.  Black justices and women justices have (and currently do) serve on the Court.  My criticisms of it are respectfully offered as evidence that too often justice is not blind, that undertows in society like racial attitudes and the power of wealth can (and do) often blemish the proposition of justice for all.

I do not underestimate the difficulties and complexities in making rulings on issues that frequently affect the lives of all Americans.  I am convinced our justices today are honorable in their intent, as were their predecessors.  No justice, after all, has ever been impeached.  However, it is the duty of a diligent citizen to object and stand up when perceived errors in judgment have occurred.

As this essay has illustrated, misjudgments about race and privilege have betrayed the best interests of our country.  While there do indeed exist many principles for which the United States stands tall, these oversights are not incidental. They remain the core social and political components of problems left unresolved or ineffectively addressed.

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