Forum Post: Citizens United - The Constitutional Remedy for Judicial Tyranny……………PART 1
Posted 12 years ago on March 7, 2012, 2:43 p.m. EST by bensdad
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Article III's Exceptions Clause
By Larry Kachimba
http://www.opednews.com/articles/3/Reversing-Citizens-United-by-Larry-Kachimba-120112-189.html
In discussing what should be done to recover democracy from the plutocrats, not many media commentators who should know do invoke Congress' constitutional power to strip the Supreme Court of jurisdiction. This power applies to all cases appealed to the Court, which covers nearly all of the Court's cases -- including all its election cases.
Congress' legislative authority to determine the appellate jurisdiction of the Supreme Court can overturn rulings that have usurped Congress' legislative powers and have caused the country's descent into plutocracy, systemic economic decline and structural unemployment since 1976. Once these separate powers of Court and Congress are re-balanced to conform with the constitutional plan, Congress can, in the same comprehensive legislation, reinstate the federal and state laws designed to safeguard the integrity of elections, but decreed by the Court to be unconstitutional. It can also go a few steps further to plug the remaining loopholes allowing money into politics. These reforms would allow the country to get back on track by solving its problems in ways that are best for the country, not just profitable for plutocrats and their hired political class.
One commentator who has discovered the extent of Congress' power to rein in the Court is Thom Hartman n. He recently recognized that the Court's power to declare any law unconstitutional is not to be found in the Constitution. He advocates that this power be entirely removed by a law overturning judicial review, although he also inconsistently advocates an unnecessary, impossible and counterproductive constitutional amendment to overturn Citizens United. James McGregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court (Penguin Press: New York, 2009) provided an extended discussion of the same proposal to remove judicial review. See also Jeremy Waldron, T he Core of the Case Against Judicial Review 115 Yale L.J. 1346 (2006) (judicial review is undemocratic and does not achieve better results in a functioning democracy).
It is not necessary to go anywhere near so far as abolishing judicial review across the board in order to rescue democracy from the Roberts 5. The Constitution provided a more refined surgical tool for the job. The Exceptions Clause ( Article III, Section 2, Clause 2, Sentence 2) of the US Constitution, states that,
" the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
Under this provision Congress may exclude from the Supreme Court's general jurisdiction to review the constitutionality of legislation any appeal concerning political questions, including specifically the law of elections. Even more narrowly, Congress should clearly except any election decision based on the surreal theory that corrupt political money is protected speech under the Constitution that cannot be regulated to eliminate its unquestionable evils. Americans universally reject the Court's view that money is speech, knowing that in fact "[c]orporations spend money on politics to buy influence/elect people favorable to their financial interests."
Americans do not need to wait for 5 judges to accept the obvious. They have the power to make Congress outlaw the obvious systemic corruption that dominates the political status quo under the political regime imposed by the Supreme Court.
Some followers of the Supreme Court might assert that the Exceptions Clause means something other than what it says, that Congress cannot be in full control of the kind of appeals the Court may hear. Those holding this judicial supremacist ideology will argue, without pointing to any specific constitutional language expressly qualifying the Exceptions Clause, that this power should not apply to such important rights as the First Amendment freedoms of speech and religion. It is the First Amendment that the Court has used to invalidate all effective regulation of money in politics.
Others argue not law but the "slippery-slope" rhetorical device that if Congress used its undisputed constitutional power to rescue democracy: "OMG what next? they might decide to overturn Brown v. Board and reintroduce segregation." Such "parades of horribles" by the judicial supremacists are not just ridiculous, they also ignore that Congress has never been successful in checking the Court for unpopular causes. Congress is always significantly less popular than the Supreme Court. Congress will only effectively take on the Court if the public applies irresistible pressure to do so.
Arguably this only happened after Dred Scott helped cause the Civil War and the victory of a new Republican Party to overturn it. Lincoln ignored Dred Scott by issuing passports to former slaves and ultimately freeing the slaves into full citizenship. This was soon codified in the 13 th, 14 th and 15 th Amendments in order to bind the states as well as the federal government. The public has never waged such a campaign against a court decision for the purpose of reducing their own rights and liberties.
The founders deliberately made no exceptions to the rule that Congress trumps the Court's appellate jurisdiction. They knew, as Jefferson wrote: "The Constitution, on this [judicial supremacy] hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." The founders understood that an unelected -- and therefore otherwise unaccountable -- judiciary could become an instrument of tyranny that would in extreme circumstance need harnessing to the democratic control of an elected Congress.
Citizens United –
The Constitutional Remedy for Judicial Tyranny……..PART 2
Article III's Exceptions Clause
By Larry Kachimba
http://www.opednews.com/articles/3/Reversing-Citizens-United-by-Larry-Kachimba-120112-189.html
No founder could have foreseen the use of the First Amendment to protect from regulation special interest money spent on intrusive political broadcasts in exchange for political favors. Recognizing that any loopholes in the Exceptions Clause power could be used by the unelected judiciary to establish tyranny, the founders chose to make the power broad and absolute, enabling Congress to cut out with a sharp knife any powers that the Court abuses. The same is true of the lower federal courts. Congress has the authority to abolish them entirely if it chose to do so.
Since Congress has never abused its Exceptions Clause power, there has never been need for an amendment that would limit the 1789 Constitution's original broad allocation of power between the judicial and legislative branches. As long as the Supreme Court is widely perceived as serving within the proper scope of its judicial role by enforcing the rule of law and fundamental constitutional guarantees, it retains sufficient public regard to prevent Congress from exercising its Exceptions Clause authority to encroach on that role. And so it has been for several generations, at least.
In the New Deal era a comparable issue arose with Supreme Court justices who, like the Roberts 5, acted more like an unelected plutocratic legislature than a court. In 1937 Franklin Roosevelt tamed the runaway corporatist Court of that era by personal attack on the judges who were publicly vilified as the "Four Horsemen" and old men with outdated "horse and buggy" views of the Constitution. One of the four old horsemen promptly resigned, thereby creating the first vacancy on the Court filled by Roosevelt. The others immediately reversed their opposition to New Deal legislation, a "switch in time that saved nine." That successful outcome ended the constitutional crisis that became known as the "court-packing" episode since Roosevelt simultaneously proposed the expansion of the Court from 9 judges to 15.
The judicial appointments that followed for nearly four decades produced a Court that generally lived up to democratic ideals. They included a distinguished Senator or Governor like Hugo Black or Earl Warren, and a litigator or professor at the pinnacle of their profession like Thurgood Marshall or Felix Frankfurter. The quality of the justices, and of their decisions, attracted to the Court a high level of non-partisan public regard. Congressional opponents of the democratic ideals failed in their efforts to use Exceptions Clause powers to rein in even the Court's most dramatic expansions of democracy, such as when the Warren Court overturned de jure segregation in Brown v Board under the Fourteenth Amendment, broadly protected civil liberties under the Bill of Rights, or reformed America's malapportioned "rotten borough"election districts by enforcing the one person one vote principle.
A sharp re-orientation of the Court away from its extended New Deal-era luster came after the corrupt President Richard Nixon made four appointments to the Court, prior to his Watergate-induced disgrace and resignation under threat of impeachment. Disclosures about Nixon's corrupt election practices had prompted Congress to complete major reforms to restrict money in politics in the early '70's. The Nixon Court's 1976 Buckley v Valeo decision that vitiated these Watergate reforms legitimated and perpetuated a "Nixonian" era of corrupt money in politics.
This new era had been plotted out for the US Chamber of Commerce by Lewis Powell in his infamous Powell Memorandum just before Nixon elevated him to the Supreme Court to carry out his plan for a judicial-aided corporate overthrow of democracy. Powell had the chance to fulfill his prophecy that "the judiciary may be the most important instrument for social, economic, and political change."
In Buckley v Valeo Powell and his Nixon Court colleagues overturned a Court of Appeals' decision holding that money in politics was not protected speech and is subject to legal prohibitions against the harm it causes. The lower court cited First Amendment precedent in support of its conventional view that money in politics is not speech itself, but conduct that amplified speech and more importantly a means of corrupting elections and politicians. Such "speech" - like fraud, conspiracy, and other speech crimes - can be restrained by Congress to serve the greater good, like preserving the integrity of elections.
Restrictions on money in politics would be no different in principle than restrictions on demonstrators from using electronic means or other property to amplify or symbolize their views. There are numerous examples of limitations on speech to prevent public harm. But the majority of the Nixon Court just like its current manifestation as the Roberts 5 did not view democracy as a greater good. In his plutocrat manifesto Powell complained of the problem that: "Politicians reflect what they believe to be majority views of their constituents." For Powell, the Nixon Court, and its Roberts 5 descendants, democracy is the problem; money in politics is the solution.
Nixon's four Supreme Court appointees helped deliver the Court's 1976 decision overturning the Watergate-era reforms aimed at Nixon's own misdeeds. Elections became increasingly influenced by the pressure of campaign contributions. This in turn resulted in the appointment of Supreme Court justices who reflected that growing influence, just as Nixon's judges had reflected and codified Nixon's own corrupt political ethics. The Republican criterion for elevation to the Court became political allegiance to a money-driven conservative movement. In the resumes of most new justices, service to money and big corporations in bureaucratic positions took the place of demonstrated dedication to justice or democracy, and high achievement in service to the public in politics or the law.
There ensued a 30 year period of gradual decline of quality in a closely balanced Court. While the Court was sliding downhill since the Nixon Era, in 2006 the Court lurched to the far plutocratic right as the Roberts 5 took control. Most of these 5 had no particular claim to achievement that might dress up their adherence to extremist right-wing ideology as their principal qualification for their elevated position. The Supreme Court reverted to the character it had when railroads dominated the Court in the first Gilded Age, between Reconstruction and the Progressive Era. What was illegal in Nixon's era was legalized as a result of his lasting corrupt influence on the Supreme Court, and through it on American politics. No end can be seen to this self reinforcing downward cycle by which corrupting judges sustain a system for corrupt politicians who in turn appoint more judges committed to maintaining this corrupt system, or in the case of Democrats - not strongly opposing it.
CU must go