Sunday, February 28, 2010

Open Letter to DCCC

Historically my family has leaned toward the Democratic Party. However, as the various branches of government have been captured by corporate power, we feel that no party represents our views.

Pundits are saying the Democratic Party is too liberal and needs to steer toward "the center." This conflicts with surveys of public opinion, which, for example, have shown strong support for a single-payer health care system and a majority in favor a public option. The "center" has been pulled far to the right by the Reagan revolution and re-enforced by a corporate media with financial interests in a center skewed to the right.

The Democratic Party has become a prisoner of this corrupted system. So, we the people are asking ourselves, "Why perpetuate this system by supporting a party that has been captured by corporate interests? Why support a party apparently too weak to take principled stands? Would it not be better in the long run to let the corrupt system crash of its own weight and then re-build on a fresh foundation?"

Unless you can convince me, and many like me, that the Democratic Party is willing, and able, to take principled stands, then many of us will stay home for the mid-term elections. Many will do so in disgust. Others will take their chances with deeper change that comes from letting Sarah Palin and the Tea Party take control with the inevitable crash alluded to above.

Allowing such a collapse would entail many sacrifices, much like a war; however, this wouldn't be a war for corporate and establishment interests. The sacrifice would be to rid us of the undemocratic corporate powers and their corrupting influences.

The Democratic Party needs to find its bedrock principles, voice them and hold to them. Is the Party for the people or for the corporations? Unfortunately, evidence strongly suggests that it cannot be for both.


Friday, February 19, 2010

Is Corporate Personhood Legitimate?

Most educated people have heard that "corporations are legally considered to be persons." Upon hearing it, most people take on the look of a dog with it's head tilted to the side. Here's one take on corporate "people".[1]

The watershed moment came in 1886 when the Supreme Court ruled on a case called Santa Clara County v. Southern Pacific Railroad. The case itself was not about corporate personhood, although many before it had been, and the Court had ruled that corporations were not persons under the 14th Amendment. Santa Clara, like many railroad cases, was about taxes. But before the Court delivered its decision, the following statement is attributed to Chief Justice Waite:

"The court does not wish to hear argument on the question whether the provision in the 14th 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."

The statement appeared in the header of the case in the published version, and the Court made its ruling on other grounds. How this statement appeared in the header of the case is a matter of some mystery and competing theories, but because it was later cited as precedent, corporate personhood became the accepted legal doctrine of the land.

Corporations acquired legal personhood at a time when all women, all Native Americans, and even most African American men were still denied the right to vote. And this was not an era of good feelings between the average person and corporations. It was the time of the robber barons, and the Supreme Court was filled with former railroad lawyers. It was the time of the Knights of Labor and the Populist movement. 1886 was the year of the Haymarket Massacre, the Great Southwestern Strike, and the next year the Pullman Strike. The people were struggling for real democracy and the wealthy ruling class did whatever it took to keep them down.

Great way to set Supreme Court precedent, eh? So, if the foundation of corporate personhood is... corrupt... established by a Supreme Court put in power by the corrupt corporations of the robber baron era, then we have to ask, "Is Corporate Personhood legitimate?"

Confused? You're not alone...


1. Abolish Corporate Personhood, Jan Edwards and Molly Morgan, May 20, 2004.


Thursday, February 11, 2010

Challenge Conventional Wisdom

The recent US Supreme Court decision, Citizens United, has been called a "Pearl Harbor for American Democracy" by a coalition seeking "to overrule the decision and amend the Constitution to restore the power of people over corporations, beyond election law."

The coalition, Move to Amend, takes its name from the right that we have, but rarely use; we can move to amend our constitution. Recall these words you've probably heard or read. The Tenth Amendment states:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people."

The people can call, or move, to amend the Constitution through their states:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,... [Article 5, US Constitution]

The active members of this coalition are not alone in their thinking, as is expressed in a blog post that questions the sanctity of the US Constitution. This thought-piece is a spring board to consider The Case Against Judicial Review, by David Cobb.

- (Referral to full post @ GDAEman blog)


Wednesday, February 10, 2010

Challenge Mabury Vs Madison

The phrase "Activist Judges" is a favorite of the US political right wing. By it they mean to challenge judges who go beyond deciding a case on narrow grounds and intentionally broaden the interpretation of their judgment to effectively create new laws to be followed... hence the phrase, "legislating from the [judge's] bench."

Judicial activism violates the canon of constitutional avoidance (i.e., where a statute can fairly be interpreted so as to avoid a constitutional issue, it should be so interpreted)[1].

Some on the left are also challenging activist judges. They were recently spurred on by the Supreme Court decision in Citizens United expanding the right of corporations to operate as persons with political free speech rights under the US Constitution. Rather than decide the Citizens United case on narrow grounds, they actively chose to broaden the case and thereby create law that gives new rights to corporations.

But lets go back in time and ask a basic question. What gives the nine appointed US Supreme Court members the right to say whether Congress's campaign finance law (McCain & Fiengold), hailed by most Americans as progress, and signed by the President, can or cannot be applied to corporations? You won't find that power of the Supreme Court written into the US Constitution.

Article III of the Constitution states:

"The judicial Power of the United States, shall be vested in one Supreme Court... and shall extend to all Cases... arising under this Constitution..."

Begs the question, what are judicial powers. But we know "judicial powers" extend to "cases" under laws established by the Congress and Executive. i.e., decide the merits of the case relative to the law. This is different than "judicial review," which is decide the merits of the law written by Congress.

The remaining powers are divided as stated in the Tenth Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people."

The power of "activist judges" isn't in the US Constitution. But, by one of the most amazing examples of circular logic, the Supreme Court gave itself the power to review the validity of laws and then use "case law," past precedent in judicial decisions, to support this power.

Where does the Supreme Court get this right to judicial activism? The Supreme Court said so in Marbury v. Madison [1803].

Specifics of the Marbury case aside, at issue, according to Chief Justice Marshall, was whether the Congress had the power to modify the original jurisdiction of the Supreme Court. Marshall found that Congress did not have that power, and he assumed that power for the Court.

Now, Marshall's decision raises a serious question of conflict of interest. The Court is giving the Court powers by fiat. Granted, they laid out their rationale, and reasonable people could debate those merits, and even agree on them. Nevertheless, the Court giving itself powers is an unresolved issue to this day.

Alternative Solutions Are Possible

One answer is a standing set of state Constitutional Conventions. One might ask, if the Congress can't regulate itself on writing laws that are constitutional, and giving that power to the executive branch poses certain dangers to power balance, who else is left but the Supreme Court to render such decisions? The states.

The constitutional issues, including their definition, could be posed to standing state Constitutional Conventions. They deliberate, including among states, to reach a two-thirds majority outcome. The outcome can take the form of narrowing the case to avoid a constitutional issue, render a decision (interpretation of the Constitution) or amendment of the Constitution to address the question. The later would be rare, but in as much as two thirds of the states agreed, the amendment process would be well on its way from a practical perspective.

In other words, remove judicial review from the powers of the Supreme Court and let the states decide as a reflection of the people.

Clearly there would be details to work out, like how are these standing conventions convened? How do they make decisions? Even if the "Standing Convention" isn't the way to go, other alternatives surely could be crafted by people with far greater knowledge of public administration and political science. What is important is the unresolved conflict of interest in the US Supreme Court granting itself powers in Marbury v Madison.

It is helpful to consider the words of Thomas Jefferson as he pondered Judge Marshall's power grab in Marbury v. Madison [2]:

"To consider judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and for privilege. But their power [is] the more dangerous, as they are in office for life, and not responsible to elective control." - Thomas Jefferson, Re: Marbury v. Madison [1803]


Wikipedia Marbury v Madison.

2. The Case Against Judicial Review, David Cobb.


Tuesday, February 9, 2010

To Constitution Cheerleaders

I recently received an e-mail from someone touting Ron Paul's push for Americans to read their constitution. I used to think the US Constitution was sacred and should not be tinkered with. That was my dear father's advice and what we were all taught in school.

But, as my father has grown older and wiser, and more knowledgeable about the history of the Constitution, he no longer thinks of it as sacrosanct. True, one doesn't want to mess with it willy nilly, but... Here's my reply to the person who sent me the e-mail.

Yes, but of course the US Constitution allowed for African people to be property. Even when it became clear that slavery was wrong, the inertia in the political and economic system of the time perpetuated the ownership of humans. So did the US Supreme Court.

Various aspects of the Constitution were designed with the intent of maintaining the power of the small wealthy minority that crafted the Constitution. Call it a compromise... yes, the US Constitution was compromised. For example, the original Constitution had US Senators elected by State legislatures over which the wealthy minority had control. The Senate was, and still is, a check on the chamber of the humans (the House). Maybe with all the crazy Sarah Palin followers around that check is a good thing? That's what the aristocratic minority would want you to believe... oddly, if you follow the money behind some of the teabagger organizing groups, it leads you straight to some people in our modern day aristocracy.

Now it is becoming painfully clear that we need to consider the place of corporations in our less than perfect union. The concept of corporations, that are so integral to our culture and economy today, isn't even mentioned in the Constitution. Corporations were originally chartered to be a vessel of wealth accumulation for taking on challenging tasks. These charters also provide a shield on liability for those humans who take on the challenging tasks... good idea when limited to challenging tasks that were narrowly defined and had a finite time horizon, like building the Erie Canal. Unfortunately, those wealth accumulation creatures of man's legal creation accumulated so much wealth and power, they started changing the underlying rules of our democracy. Now corporate power has gotten out of control to the point that some humans claim we couldn't put the corporate genie back in the bottle even if we wanted to (a functional definition of "out of our control").

I'm sure in the 1820s humans who knew that the legal creation of slavery was wrong felt the same way (owning slaves was legal.. said so, indirectly, right in the US Constitution). They knew of the corrupting nature of slavery, but they understood the integral economic role that human property played in providing labor, which allowed the Country to be competitive in world trade. Slaves allowed wealth accumulation, without which, some of the most grand historic mansions that speckle our countryside would not exist. Many great achievements, including beautiful works of art funded by wealthy slave owners, simply would not have been possible without the means to accumulate wealth that was enabled by the legality of slavery... so it was argued... for decades.

Some day humans might look back at the corporate legal construct in wonder as we look back at slavery today. They will see all of the inequities, the environmental damage, the murders and other evils wrought by this legal creation, like the legal creation of slavery.

So, the US constitution was far from exceptional when written and remains so today. This was recently evidenced by the US Supreme Court decision in Citizens United Vs Federal Election Commission. It might take until 2050 to rid the world of the legality of corporations as we know them today, but the writing is on the wall and re-writing of the Constitution will be the path to that salvation.


Monday, February 8, 2010

CU v FEC: A Blessing in Disguise?

The US Supreme Court decision in CU v FEC might be a blessing in disguise... it is helping to educate and galvanize people to the real issue. That is, we need to replace bounds on corporate rights (corps. used to be very tightly controlled... for reasons that have become obvious as those controls have been loosened). The campaign finance reform movement is a tangible way to motivate progress on the multi-generational struggle to change our power relationship with corporations.

One challenge we face is that corporations are chartered by states not the fed... the Supreme Court found in Dartouth College (1819) that a corporate charter is a contract. Contracts, like property rights, are sacred cows (unless of course it's a contract with a labor union). So, controlling the scope of corporate charters is spread across states... the fed might be able to place bounds on state charters of corporations, but I'm not sure.

The folks at the Program on Corpoations, Law and Democracy would know (


Saturday, February 6, 2010

Red or Blue

Even people, like myself, who are familiar with the story/movie "Matrix," benefit from reflecting on the matter of red and blue pills.

The question is not about pills, but what they represent about reality. The question is asking us whether honesty is worth pursuing. The blue pill will leave us as we are, in a life consisting of habit, of things we believe we know. We are comfortable, we do not need truth to live. But, some people in this state realize it's a dream.

The red pill represents an awakening. A realization of harsh realities, inequities, power structures, unsavory histories, hypocrisy, manipulation, of bad faith masked in supposedly democratic processes. These stark realities penetrate your heart with discomfort, like guilt. Your conscience compels you to change, to challenge the unfair elements of the established structure, to help right the wrongs.

... or is that "write the songs"? Probably both.

"There must be an awakening to the crisis, followed by action"
--W Edwards Deming


Blue Pill credit to Matrix Philosophy.

Friday, February 5, 2010

Creepy Site: Seek God

Seek God is just as creepy is their web page on Council for National Policy (CNP). Featured on the CNP is Cliff Kincaid, founder of American Sovereignty Action Project (ASAP), which is the astro-turf (pseudo grass roots) lobbying arm of Citizen's United.

Citizen's United is the group that challenged McCain Fiengold Campaign Finance Reform law and led the US Supremen Court to give new constitutional rights to corporations (CU v FEC).

Thank's Cliff. BTW, I found an updated photo.


Source Watch

Photo of Cliff Kincaid, Accuracy in Media (AIM) speaker bio for Kincaid... AIM IS Cliff Kincaid.


Thursday, February 4, 2010

Goodbye Rahm

Once again, GLH Blog is leading the way. Apparently Rahm Emanuel, Obama's Chief of staff, is as crass as we all thought he was:

Emanuel has apologized for a remark, quoted last week in the Wall Street Journal, in which he called liberal Democrats "(bleepin') retarded."

If you don't know much about Emanuel, read the GLH post on this subject.

Then, share your views with The White House.

Here's what I wrote:

Rahm Emanuel is a liability to progress. He exudes the misplaced values of Washington group think.

The perceptions of his political talents are not substantiated by his track record: He was the architect of NAFTA in 1993, resulting in unions staying home in 1994 and the Democrats losing 54 House seats. As anti-war sentiment raged in 2006, Emanuel, then head of the DCCC, recruited pro-war Democrats. The result, only nine of his hand picked 22 candidates won almost costing the Democrats the majority in a year they should have won a landslide.[1]

Let Emanuel go. There are plenty of talented people to be Chief of Staff.

Sincerely, a "bleeping" retarded lefty.


1. Dissident Voice