Vacuum Packed Court
Feb 18, 2010
The current Supreme Court, composed of five Republicans and four Democrats is, of course, an "oxymoronic" group. Previous Courts, with jurists like Earl Warren, Sandra Day O'Connor, David Souter and others who paid less attention to personal political ideals, managed to function in a professional manner. They would actually consider the entire Constitution, as well as the function of law, before making momentous decisions. The recent decision by the Supreme Court, justifying unlimited campaign donations by corporations, or anyone, is frought with countless consequences, unforeseen by an amazingly thoughtless majority. Obviously, in defense of the First Amendment, these judges sacrificed every other article and amendment of the Constitution. By their decision, they would equate paying money as expression of "Freedom of Speech." The ACLU and Floyd Abrams would agree! Other legal scholars like Jonathan Turley would also, reluctantly admit that the decision had merit. The problem is, simply, that the Court's decision was made in a vacuum.
While millions of viewers were shocked to see Justice Alito, eyes closed, waving his head in apparent disagreement with the president, I thought I could hear him clicking his heels and whispering: "I wish I were in Kansas, I wish I were in Kansas!" Eventually, no matter how satisfied the five "Republican" justices may be with the political consequences of their decision, I can guarantee that they will not be happy with the ensuing legal consequences. The Fourteenth Amendment, which the Court has seen fit to consistently avoid, will, sooner or later, rear its ugly head and fulfill my favorite prediction: "Violation of the Constitution will always come back to bite us in the ass!" I have said this many times and it never fails to come true. Unfortunately it usually bites eveyone, innocent and guilty alike, which is why the Supreme Court and the ACLU and legal scholars, all, cannot afford to work and think in a vacuum as they seem to be doing.
If "accepting money" is, somehow, the same as listening to the expression of "Freedom of Speech," then any gift of money can be twisted, somehow, into expression of this "Freedom of Speech." Anyone can demand the same right to accept payments as long as the donor and the recipient have the same or even similar views. What's more, despite the unconstitutionality of the "Patriot Act," it cannot ask for the confiscation of funds intended for terrorists or anyone else with whom the perspective donor agrees. You see, the Fourteenth Amendment, like the overly protected First Amendment, does not differentiate between citizens and anyone else existing within the boundaries of the state. Perhaps, an "activist" Republican Court would like to change the Constitution without going through the Legislature and state referendums? Given the chance, in fact, I believe, the liberal minority might be just as tempted.
Despite the biting sarcasm of recent articles on this subject, my contentions are in no way political positions. The First Amendment of the U.S. Constitution reads:
"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 redress of grievances."
Whether or not I agree with the notion that unlimited contributions to a candidate constitutes "Freedom of speech," nowhere in this "simple paragraph" or "runon sentence," does the Amendment mention "campaign donations," "monetary payments," "bribes," "gifts," or the recipient's "thank you note" for the "speech" he has received. In fact, in the actual expression of "Freedom of Speech," the "listener" is in no way responsible for the "speech." Essentially, the speaker, unless he is inciting violence, is not responsible for the listener's actions either. In the case of campaign donations, payment to a candidate, meant to influence him, is open to a host of improprieties. In fact, most large donations are meant to unfairly tip the scales of the recipient in favor of the donor. Worse yet, most large donations involve a quid pro quo, that is, a clear favor purchased with the donation, The higher the payment, the more likely the desired consequence. Worse yet, in most cases, a "payment" is required to even "purchase" the opportunity to communicate with an office holder. Thus, the really bad news is that incumbents should actually be barred from accepting any monetary gifts while in office. Expressions of "Freedom of Speech," bribes, gifts, inducements, whatever they may be, turned into money, each one carries with it, the dreaded quid pro quo.
More bad news: Unlimited contributions, especially by "corporations," certainly abridges the right of "the people to petition the Government for redress of grievances." The "Republican" Judges may well be justified in considering corporations, in fact, all entities to be entitled to "Freedom of Speech," because that is the way the Amendment is written! Unfortunately, "redress of grievances" does seem to be "the right of the people." Whether or not the Supreme Court decides to consistently equate "people" and "corporations," two things seem clear. (1) A very unprofessional Supreme Court decision was rendered without due consideration of the consequences of the decision. (2) The decision was based on consideration of "precedent" and "case law" and all Justices ought to be required, before their vote, to take an oath that they have reread those portions of The Constitution relevant to their decision. In other words, I seriously doubt that some of the Justices bothered to actually reread the First Amendment and certainly not the Fourteenth Amendment, before rendering their decision.
Allen Finkelstein, D.O.