Constitution Archives - Page 3 of 8

Earl Warren versus “people are corporations”

A leader of the Republican Party for more than a decade, Roscoe Conkling had even been nominated to the Supreme Court twice. He begged off both times, the second time after the Senate had confirmed him.

Earl Warren Sometime in 1973 or early 1974, I was in a class at the SUNY College of New Paltz. It was my only course, 15 credits, in political science, and, oddly, I don’t remember much about it except save for the fact that it was conducted by the late Ron Steinberg.

Except for one thing: we all got to meet retired US Supreme Court Chief Justice Earl Warren in his office in Washington, DC. And not a meet-and-greet but him talking with us for at least a half hour, and then the dozen or so of us able to ask him questions.

Earl Warren is the guy whose court made many monumental decisions between 1953 and 1969 when he retired.
They included:
*attempting to end segregation policies in public schools (Brown v. Board of Education)
*ending anti-miscegenation laws (Loving v. Virginia)
*ruling that the Constitution protects a general right to privacy (Griswold v. Connecticut)
*protecting the rights of the accused (Miranda v. Arizona)
*providing lawyers from https://www.denvercocriminaldefenselawyer.com/ to the indigent (Gideon v. Wainwright)
*codifying one person, one vote redistricting (Baker v. Carr)
*freedom of the press (New York Times Co. v. Sullivan)

The question I had must have been stated ineloquently because he didn’t know what I was getting at. I was probably nervous. Finally, I asked him about the precedent of the Court considering corporation as people back in the late 19th century. He said that the Court got it wrong back then.

Earl Warren, who died in July 1974, would have appreciated this article, “‘Corporations Are People’ Is Built on an Incredible 19th-Century Lie: How a farcical series of events in the 1880s produced an enduring and controversial legal precedent.” It involved the Southern Pacific Railroad Company, “owned by the robber baron Leland Stanford,” and the corporation’s lawyer, Roscoe Conkling.

Former President Harry S. Truman applauded the newly-retired Warren in this January 1970 California Law Review article. To the point of my question, Truman wrote:

“I would suggest that it is at least symptomatic of a conservative in today’s society that [Warren] is deeply concerned with the faceless, seemingly randomly and capriciously directed activities of the gigantic institutions which influence the direction of modem life. Under this definition, a conservative is one who worries that the balance of power in this nation has shifted in favor of oversized corporations, government agencies, labor unions, universities, foundations, and institutionalized groups which draw together shifting combinations of some or all of these.”

Happy Constitution Day.

Book review: The Quartet by Joseph J. Ellis

Ellis reminds us that democracy was viewed skeptically in the 18th century

Given all the other tomes on my bookshelf, I surprised myself by checking out from the library, The Quartet by Joseph J. Ellis (2015), the author of Founding Brothers and American Sphinx, about Thomas Jefferson.

The subtitle, Orchestrating The Second American Revolution, 1783-1789, informs how George Washington, James Madison, Alexander Hamilton and John Jay, along with others such as Robert Morris and Gouverneur Morris (not related), got the thirteen colonies, who had fought off the British, came to accept another centralized government.

A lot of reviewers noted, and it was my experience as well, that our American history courses in high school presented the narrative of the last quarter of the 18th period woefully incompletely. There was the revolutionary fury of the Declaration of Independence and the war, which was reasonably well laid out. The Articles of Confederation -they failed, but why? – followed. Then the Founders came up with the Constitution – but how? – including the Bill of Rights.

In fighting the American Revolution, the colonists were cohesive in that limited battle against the British. However, the notion that these 13 nation-states would then relinquish their independence to accept the creation of a powerful federal government was no guarantee. Certain visionaries diagnosed that structure created by the Articles of Confederation was doomed to fail. They suggested conventions, purportedly to amend the Articles, but ultimately to throw them out.

As Newsday noted: Ellis’ account of the run-up to the Constitutional Convention of 1787 and the subsequent state-by-state ratification process is so pacey it almost reads like a thriller. New Yorker Hamilton, fearful that anarchy was looming, developed a national vision first; Madison was just a bit behind. Jay, serving as foreign affairs secretary, was trying to fashion coherent foreign policy. But all agreed that if their efforts were to succeed, a reluctant Washington, who had retired to Mount Vernon, had to be on board. Washington’s revolutionary credentials were unassailable.

“In 1780, most Americans, having thrown off the fetters of a faraway central power, would have thought the kind of national government envisioned by Washington and Co. as peculiar in the extreme. Some historians have viewed the Constitution as a betrayal of the American Revolution by a cabal of elites who crushed an emerging democracy. Ellis, however, reminds us that democracy was viewed skeptically in the 18th century; he prefers to see the efforts the quartet as ‘a quite brilliant rescue’ of revolutionary principles.”

I totally agree that, for a topic that could be very dry, I found the book surprisingly engaging. Ellis explains how the Founders, even those opposing slavery such as Hamilton, essentially ducked the question for the cause of federalism, hoping the topic would be addressed down the road, which it was, decades later.

I should mention that I got the large-print version of The Quartet because that happened to be the edition near the checkout. I didn’t NEED it, but I’m not complaining about it either.

Antonin Scalia and the “dead Constitution”

“If the issue of the franchise for women came up today, we would not have to have a constitutional amendment.”

A good friend of mine asked me to try to find an interview with Antonin Scalia. The late Supreme Court justice talked about a “dead Constitution,” arguing that people ONLY have rights that are spelled out in the document or by the formal amendment process.

My friend recalls him saying that women, or blacks, had no inherent rights until they could convince sufficient White Men to give them rights thru the amendment process.

I discovered that he laid out his “originalist” views many times. In 2005, he delivered one of his two most essential speeches, Constitutional Interpretation the Old Fashioned Way:

Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment.

Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920.

In 2008, Scalia vigorously defended a ‘Dead’ Constitution. As his 2016 New York Times obit noted:

“By choosing the appeals court judge and former law professor, Reagan believed that his nominee would become a… man who would unite a coalition of like-minded justices… But from the beginning, Justice Scalia defied all expectations. He eagerly participated in questioning from the bench during oral arguments when new justices traditionally held back. He became an outspoken, witty and acerbic writer and speaker, who was deified or vilified by people on opposite sides of the political divide.”

This is the first Monday of October, the traditional opening of the Supreme Court’s term. Scalia has been replaced by ~~Obama nominee Merrick Garland~~ Trump appointee Neil M. Gorsuch.

Julian Assange and Edward Snowden

Edwatd Snowden seemed to be just a guy who believed that the Constitution of the United States was being violated by its very government.

Chris has thought about Julian Assange a lot more than I have:

What drove Julian Assange to start WikiLeaks? Do you think he’s a white, gray, or black hat? Has your opinion of Assange or Snowden changed at all due to the leaks and Russian involvement?

I’m going to assume Assange started Wikileaks for the reason he said he started it. From a recent Bloomberg story I can’t locate presently:

“A decade ago, when Assange founded WikiLeaks, it was a very different organization. As Raffi Khatchadourian reported in a 2010 New Yorker profile, Assange told potential collaborators in 2006, ‘Our primary targets are those highly oppressive regimes in China, Russia, and Central Eurasia, but we also expect to be of assistance to those in the West who wish to reveal illegal or immoral behavior in their own governments and corporations.’ For a while, WikiLeaks followed this creed.”

The same story shows how the organization has gone off the rails, most recently proposing the tracking of verified Twitter users’ homes, families, and finances. Um, no thanks. That seems to be the Big Brother that Assange looked to take down initially.

When Agent Orange sided with Assange Over the CIA, that was disturbing on more than one level. Sarah Palin’s support further diminishes.

I thought, 10 years ago, that he was a white hat if you will, but certainly not now.

Whereas Edward Snowden I’ve seen differently. He was just a guy who believed that the Constitution of the United States was being violated by its very government. He believed that protection from unwanted and illegal government attention should be afforded to every citizen.

I wondered if I, in the same situation, might have been tempted to do the same, be a whistle-blower, to detail these conflicting, interrelated issues of national security, privacy, civil liberties, and Internet freedom. Librarians, after all, have been at the forefront of the fight for freedom, changing the way records are no longer kept in the wake of the so-called USA PATRIOT Act.

He changed the business model. “The NSA relied on Internet giants to do surveillance for them (surveillance being a major part of the Big Data business model), and pre-Snowden, there was no real downside to cooperating with illegal NSA spying requests — in some cases, spooks would shower your company with money if it went along with the gag. Post-Snowden, all surveillance cooperation should be presumed to be destined to be made public, and that’s changed the corporate calculus.”

I wish I had seen “Citizen Four,” Laura Poitras’ film about abuses of national security in post-9/11 America. “In June 2013, she and reporter Glenn Greenwald flew to Hong Kong for the first of many meetings with the man who turned out to be Edward Snowden. She brought her camera with her.”

I did watch that John Oliver interview of Snowden in 2015, in Russia. As a buddy of mine put it, “he was clear, clever, and careful in how he responded, even when he was adopting the joke angle. He earned a lot of my respect just in how he dealt with Oliver’s interjections and his goofy gimmick interview style.”

Did Edward Snowden sabotage the war on terrorism? Did he provide too much information to Russian intelligence? Or did he let the American public know about the illegal activities that the US Government was doing in their name and at their expense? Possibly all of the above.

Someone wrote recently that, if he were a real patriot, Snowden would come home, and like a Father Berrigan, face his accusers, and let the ACLU or others defend him. That’s a personal decision only he can make.

I find Julian Assange to be an arrogant twit, whereas Edward Snowden appears to be a bright guy, but way out of his depth.

C is for Constitution of the US

There are Constitutional scholars who believe that not only must Donald Trump take his salary, but that it is appropriate so that he knows he’s being paid by the people of the United States.

If you’re ever looking at the Constitution of the United States, make sure you look at one that is footnoted, such as this one. It gives the reader a better sense of the trial and error that is the American experience.

For instance, Article I, Section 2, paragraph 3: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons.”

“All others” were slaves, who were three-fifths of a person. The matter was altered by Amendment 13.

Article II, Section 1, paragraph 3: “The Electors shall meet in their respective States, and vote by Ballot for two Persons. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President.”

This became unworkable in the election of 1800 when Thomas Jefferson and Aaron Burr each received 73 electoral votes, and dealing made TJ the Prez and Burr the Veep. The process has been superseded by Amendment 12, with separate ballots for President and Vice-President. This was referred to in the musical Hamilton.

The first 10 amendments are called the Bill of Rights. Amendment 1 is probably best known: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Some legal scholars feel Amendment 4 is particularly under attack: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The post-Bill of Rights amendments often deal with expanding the vote. 15 – regardless of “race, color, or previous condition of servitude.” 19- regardless of “sex.” 24 – regardless of “failure to pay any poll tax or other tax.” 26- allows 18-year-olds to vote, when the age had been 21, generally. Amendment 17 allows for the direct election of US Senators, rather than them being selected by state legislatures.

Two Amendments canceled each other out. The 18th permitted prohibition of alcohol, but the 21st scrubbed the social experiment.

One section I had not noted until recently is Article II, Section 1, paragraph 7: “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

This has been an issue for a few reasons. The new president, Donald J. Trump, has indicated that he would not take a salary for being President. There are Constitutional scholars who believe that not only must he take the payment, but that it is appropriate so that he knows he’s being paid by the people of the United States. George Washington tried to avoid being paid, but was talked out of it.

Also, the Trump organization owns buildings for which the US government is paying rent. This could be considered “other emolument,” and could cause a Constitutional crisis early in his administration.

Amending the Constitution of the United States is very difficult. There has been only one amendment passed since 1971, and that was in the hopper for more than two centuries.

ABC Wednesday – Round 20