The Constitution and The Supreme Court

In January 2010, in a stunning reversal of the nation's federal campaign finance laws, the Supreme Court ruled 5-4 that free-speech rights permit groups like corporations and labor unions to directly spend on political campaigns, and also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

Siding with filmmakers of "Hillary: The Movie," who were challenged by the Federal Election Commission on their sources of cash to pay for the film, the court overturned a 20-year-old ruling that banned corporate and labor money. The decision threatens similar limits imposed by 24 states.

I am reading "Scorpions" by Noah Feldman, which is about the battles and triumphs of FDR's Supreme Court Justices. I am in the period of October, 1937 when Justice Hugo Black takes the bench. From chapter 15 - Original Intent:

Black's very first independently authored dissent, in an otherwise obscure tax case, already contained the seeds of what would become Black's immensely influential theory of constitutional law: that the text of the Constitution means what it originally intended to mean. This is the philosophy known as originalism. Black's version of this philosophy was that the original meaning should be found by looking at the text of the Constitution as it would have been publicly understood when written. It guided his pen from the very first months he arrived on the Court and for the next thirty-four years. Although earlier justices had occasionally used historical materials to argue about the original meaning of this or that provision of the Constitution, Hugo Black was the first justice to frame originalism as a definitive constitutional theory and to explain why and how he was using it. In this sense, Black was the inventor of originalism.

The case in which Black rolled out his theory was brought by a Connecticut-based insurance company that had been taxed in California and wanted the Court to find the out-of-state tax unconstitutional. The other eight justices saw the case as routine, and they held in favor of the Connecticut company. Black, though, disagreed. The Constitution, he declared, did not protect corporations-only people.

His reason was simplicity itself: The due process clause of the Fourteenth Amendment gave the rights only to persons. "I do not believe the word 'person' in the Fourteenth Amendment includes corporations," Black wrote. To include corporations was to invent new rights, rights that had, "a revolutionary effect on our form of government." Black was alluding to the Lochner era, when the justices has invented the liberty of contract to protect corporations and their property. He was saying that all this could have been avoided if the justices has only followed the original intent of the Constitution. Black's opinion flew in the face of precedent dating back to 1886: but Black did not care. "A constitutional interpretation that is wrong should not stand," he insisted.

I always believed the court was made up of humans, men and women who can make mistakes, takes in the current political and social climate, and can be convinced to reverse precedent. What is interesting is this issue has be bounced back and forth since 1886.









NYC Wins When Everyone Can Vote!

Michael H. Drucker
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