But, alas, I’m a Soul-Proprietor

Those few parts of the Realm of the Weblogs that I still visit have thus far been pretty quiet regarding yesterday’s significant, if not already-blown-out-of-proportion, SCotUS decision in Citizens United v. FEC. (The Extraordinary Mark, unsurprisingly, comes down in favor of it.) Consequently, I haven’t found too many outlets for expressing my opinion (save Facebook conversations), so here I am, after a too-long hiatus, engaging in all the self-absorption that the personal Weblog permits.

Perhaps needless to say, despite my occasional libertarian leanings and rule-of-law-based reluctant Constitutionalism, the predominant front-porch republican strain in me immediately anathematizes the Court’s decision. Given the ease with which corporations ably circumvent what restrictions heretofore existed (as ably noted in an unsettlingly almost-persuasive defense of the decision by Glenn Greenwald), fears that this decision in any way really changes matters in practice are probably exaggerated, but I, nonetheless, worry about to what the messages that this decision send, however quietly they will reverberate in a nation of acquiescent sycophants and myopic, long-term-memory-challenged “activists”, will amount.

First, it is a First-Amendment issue, at least as “freedom of speech” has come to be understood and to be applied to “corporate persons” as well as to ensouled people. Accepting this — and further acknowledging that the wording of the First Amendment says nothing about to whom the freedom of speech belongs (“Originalism”, I suspect, provides an answer, but not one that “conservative” “originalists” presently on the Court would likely wish to entertain. See below.) —, I have to raise the predictable question about equating money with speech, or, rather, designating spending money as a form of speech. Specifically, my concern lies with equality, the equality of liberty. (Greenwald, again, makes a discomfortingly almost-persuasive case for money as speech.)

The reality is that “the average corporation” — “the small business: the dentist, daycare operator, or grocery store owner who has incorporated due to the nature of our litigious society”, as asserted by an ardently Republican good friend of mine — is not the average corporation financially able to “say” anything loudly enough and frequently enough to get things done. That being the case, doesn’t this still decision still warp freedom of speech, subjecting it to the market? That is, instead of an equally possessed right, the freedom of corporate (political) speech is something afforded more to those who have money than to those who lack it. (Problematically, we must address this same issue when we consider individual expenditures comprising political “speech”(; more on this, as a matter of principle, below). Practically speaking, the decisive factor seems to me to be that corporate influence tends, as a matter of finances, to be much more effective than individual campaign contributions, and that matters relating to economy of scale permit the large corporate entity to out”speak” the small businessmen more effectively than the wealthy individual can the small-money campaign donor. (Also, money-bombing seems to have shown that en masse, small-time donors can make a big splash, even if their recipients ultimately fail to gain sufficient traction to upend the political Establishment.) This seems to be either a rejection of soi-disant conservatives’ preference for “equality of opportunity”, or one hell of a reductionist stretch of said principle.

Now, on to a meatier point, returning to the more foundational question of corporate personhood. I have a serious problem with the precedent set, directly or not, by Santa Clara, fully detesting the very notion that anything other than an ensouled, free-will-possessing human is a person. But even accepting that, I am troubled by the theoretical threat to federalism that rulings of this nature — and, admittedly, the very notion of corporate personhood that I’m begrudgingly accepting as precedent — present. Allow me, no Constitutional-law scholar (and thus willing to be corrected, or supported, by someone better versed in the field) to demonstrate.

A corporation exists because it is chartered by a State government. That is, it is a beast of the State’s creation, which intuitively suggests that the State ought to be able to regulate it as it sees fit. So perhaps the Citizens United decision is the right one, prima facie, because it’s stripping the federal government of regulatory power properly left to the States(; we’ll leave aside implicit questions about inter-State commerce). However, by virtue of the Fourteenth Amendment (regarding which the SCotUS originally granted personhood to corporations (“Judicial legislation”?)), the State loses the right to regulate what it has created because the federal court has deemed this chartered — rather than incarnate — “person” to be worthy of Constitutional protections that, through the Incorporation Doctrine, the State must now honor. It may not be an obviously direct ramification of Santa Clara, Citizens United, et cetera, but it seems to me to be a legitimate cause for concern.

Then again, the Constitution was our first, worst mistake, an inherently centralizing document for the large, commercial republic, endorsed by the sorts for whom talk of the States was mere pretense.

In the comment section of an exceptional post of his at Front Porch Republic, John Médaille has this to say:

[T]he Supremes were merely recognizing an established fact: that the government of the United States is a wholly owned and operated subsidary of corporate America. Why should the plutocracy be limited in the amount of money they spend in supporting their employees? What the Supremes did was to reveal how little they cared for “original intent,” since the founders never intended to give corporations the rights of natural persons.

And via Ted Chan, this:

Today’s structure of law gives corporations a spectrum of legal and constitutional rights which they routinely wield against people, communities, and nature. Corporations have more rights, for example, than the communities in which they seek to do business. They can and do use those rights to lobby Congress, impact elections, and to decide for us what we eat, whether mountaintops are blown off or not, whether there are fish in the oceans, and on and on. Their constitutional and other legal rights, together with their wealth, guarantee that they can define the debates that lead to the adoption of new laws—and often write the laws themselves.

Update: John Médaille offers his thoughts here:


All CU wanted was for the court to bless their end-run around the campaign laws. Corporate contributions were not an issue in the case, and not part of the relief that plaintiffs were seeking. But for some unknown reasons, the court decided to re-hear the case on grounds that had nothing to do with the plaintiffs plea. The rehearing was peculiar, not only in widening the grounds of the case beyond the issues that were placed before it, but in ordering the rehearing for September 9th, a full month before the court’s session normally began. This seems to indicate some undue haste in deciding so pivotal an issue. One is tempted to think that the majority wanted this issue decided in time to dismantle the current laws in advance of the coming congressional elections. One is permitted to ask here whether the court’s agenda is judicial or political.

In ruling on the issues presented to it, the court upheld the FEC against CU. But on the issues that were no part of the original case, they voluntarily threw out restrictions against corporate funding of campaigns, restrictions that date back to 1907 and have been upheld by every court since then, in test after test. They have, at a stroke, undone 100 years of legislation and judicial precedent. This is not evolution, but revolution, and a revolution predicated on some very peculiar grounds.

The majority of the court treated this as a “free speech” case. Yet, this is somewhat perplexing. As far as I know, CEOs have always had the right to say whatever they liked, to support whatever candidate they wanted, to go to whatever rallies they wished, and to write letters to the editor whenever they felt the need. That is, they enjoyed all the rights of free speech that every other citizen has. As far as I can recall, there are very few corporate executives in prison for expressing their opinions. The court, however, was not interested in the rights of the executives, but in the rights of the corporations as “legal persons” endowed with all the rights of natural persons. This is a rather peculiar doctrine that originated in another example of legislating from the bench, Santa Clara County v. Southern Pacific (1886), which granted “personhood” to corporations. This rule was a complete overturning not only of the court’s previous rulings, but of the long history of corporation law dating back to the Middle Ages.

Porn, Rights, and Higher Education Or, Thank God I’m Gone in Two Months


The University of Maryland: Our basketball team fails; featuring two socialists, a communist, and left-liberal constitutes intellectual diversity, and we like to show xxx-rated porn on campus.

Iowa and Cosmopolitan Ignorance

I have little to say about the today’s Iowa gay marriage ruling. I don’t think, in the history of Nathancontramundi, I’ve dedicate more than a few posts to the subject, mainly because I have nothing but convoluted thoughts on the matter. John, who links to the ruling and to a pretty solid commentary on the ruling, has some thoughts here.

What interests me most about reactions to the decision are the numerous “pro-Iowa” status and away messages I’ve seen on AIM and Facebook today. I have no qualm with the support many of my friends have shown for the decision, but I’m troubled — though certainly not surprised — by the attitudes inherent in most of these opinions, to wit, the “Hey, not bad for a bunch of provincial hicks!” point-of-view. I think it’s fair to say that Iowa, even if more “conservative,” is a swing state that has, much like Minnesota, Wisconsin, and Illinois, a fairly strong progressive/populist strain in its political history, and, thus, this decision ought not to shock the “progressives.”

Second, I’m perturbed, to say the least, that the reaction is, “Yay, Iowa!” as if Iowa, and not a few judges, sent down this ruling. Small-d democratic will (Not that it necessarily was opposed; I don’t know, and am too lazy to research, statistics on Iowans’ views about same-sex marriage.) is wonderful, as long as it supports what we do; when it dissents, we have no problem with leaving decision-making power to the courts.

Finally, what the hell is so bad about Iowa that one person, on Facebook, actually writes, “[Name redacted] may to rag on Iowa less.” We’re talking about the home of William Appleman Williams, Ray Kinsella, the National Farm Toy Museum, Henry A. Wallace, and the Iowa Writers’ Workshop, where the fabulous Marilynne Robinson teaches. Maybe if they pulled their heads out of the “cosmopolitan” arses, the excitement might be a bit more subdued and rational and less insular.

I’m just sayin’.

And The Truth Shall Set You Free!

Or enslave you to the state.

From Prof. Deneen on the Anti-Federalists, part one:


That the very functions of State governments that they deemed to be too uninteresting for the national government – such as agriculture and civil justice – would in fact be eventually accrued to the center, and that a train of state governors would leave their posts to join a national administration of those sorts of activities would someday become the norm, might not have been foreseen by the Framers, but is not out of keeping with the general direction and trajectory of the regime that they designed.

It’s not that the wrong people get into government. Centralization is inherent in our Constitution. Hamilton was a nefarious s.o.b.

No Faith in the Fed

From an article in today’s Post

After his speech, Bernanke was asked when he expected the economy would recover.

“My forecasting record is about the same as the win-loss record of the Washington Nationals,” he said.

In four years in Washington, the Team Formerly Known As The Expos have a record of 284-363, only in the first season in our nation’s capital even reaching the .500 mark. Exactly .500. I suppose that hearing a member of the Leviathan admit to being an idiot, rather than denying an incontrovertible truth, is somewhat refreshing, but that we continue to permit someone with such an abysmal ability to predict things that, seemingly, are within his realm of expertise, particularly when these are such vital issues, is bafflingly sad.

End the Fed. It’s little more than another bastion of centralization, anyway.

We should recall, too, that the Constitution only explicitly provides for the coining of money by Congress; no provision for exists permitting the Federal government to printmoney. I have no interest in advocating the return to the gold or silver standard; however, our Founding Fathers certainly seem to have recognized the need to tie our money to something sounder than the word of the government. I’m just sayin’.

Lincoln

Will, at Dispatches, has a post-Presidents Day post in which, amongst other things, he links, critically, to my Terrapin Times piece on Roger B. Taney. He packs quite a pit into a brief paragraph, so I’ll post it in its entirety and respond as appropriate.

I’m baffled by the rise of anti-Lincoln sentiment on some quarters of the Right. Freeing the slaves ought to count for something. Moreover, letting the South go and hoping for the best (voluntary manumission, perhaps?) seems like wishful thinking. I’d also argue that Jim Crow would have been a lot more durable had the South gained independence. Patrick Deneen’s assessment is a bit more balanced.

First, I’m not sure why this baffles Will. Criticism of Lincoln from the Right is nothing new; granted, unfortunately, a fair amount of it comes from certain neo-Confederate paleoconservative/paleolibertarian corners where racism, I suspect, seethes just below the surface, awaiting the day when Jim Crow laws can be revived, perhaps “for the good of” Blacks. However, such denouncements come from conservatives unpossessed of such virulent tendencies. (I like to think that I belong to this latter category.) For instance, long ago (by blogosphere standards), Larison offered this:

Serious conservatives of old (and some still around today) frequently disparaged Father Abraham and rejected the politics that he represented; to the extent that the GOP really was always the Party of Lincoln, conservatives are hard-pressed to ever find a real place in it, since our tradition via the Agrarians and Bradford ties us to the Antifederalists, Jeffersonian Republicans, Southern Democrats and Populists.  At each stage of our history, the revolutionary forces of consolidation wanted to transform and do violence to the settled order of American life and sought to damage the constitutional order as well.  At each stage serious conservatives opposed them and their works . . . .

. . .  if “Lincoln Republican” means anything it refers to the post-1865 Republican stranglehold imposed on the country by the post-War arrangements of power . . . .

It was only ten years ago that Bob Dole lectured us about how the GOP was the Party of Lincoln and anybody who didn’t like it could get out right now.  I got the hint when I was still just 17 and never joined the Party of Corporations, Corruption and Consolidation.  Weaver’s argument from definition notwithstanding, Lincoln was certainly no conservative or, if he was a conservative, I would not want to have anything to do with such a conservatism. [Emphasis in the original. – NPO]

Moreover, of course this antipathy toward Lincoln is emerging perhaps more openly now, as we’ve marked his bicentennial. Such anniversaries are frequently the points at which we curmudgeons escape from our cellars long enough to inject politically incorrect vitriol into staid discussion. Pro-Lincoln agitprop (along with pro-Darwin commentary and anti-Darwin screeds) have dominated the media of late; that dissidents would keep opinions to themselves is neither to be expected nor desired.

Of course freeing the slaves ought to count for something; as far as I know, none of us expressing our disapproval of the Great Emancipator have denied that this was a good thing. I fully challenge the notion that ending slavery was Lincoln’s principal intention — if, initially, an intention at all (I’ll not pretend to know what motives drove him from deepest within.) —; preserving the Union, for better or for worse, I think, is what he sought to do. That the Emancipation Proclamation immediately freed slaves only in states over which Washington had no de facto authority — and in those parts of the Confederacy over which the Union had regained control (a fact seemingly lost to too many critics of Lincoln) — suggests an unwillingness, or ambivalence, at least at first, respecting the issue.

I certainly agree that expecting to see the end of slavery, at least any time soon, by way of “letting the South go and hoping for the best (voluntary manumission, perhaps?)” is wishful thinking. I certainly had no intention of making such a suggestion when I noted that Taney manumitted his own slaves. I make mention of that only to suggest (specifically to my primary audience; more on that below) that, dreadful and mistaken as his Dred Scott opinion was, Taney was not a complete beast.

Slavery is unequivocally immoral, a particularly sad stain on this nation’s sad history. However, I’m not at all convinced that the liberation of Black slaves into a Southern society in which de jure discrimination and, notwithstanding the Fourteenth Amendment, de facto inequality reigned and into Northern cities where the absence of slavery and the chimera of tolerance did little to meliorate the fact that Blacks often remained second- (perhaps third-)class citizens justifies the deaths of more than six hundred thousand Americans, more deaths than every other war, Revolution through Vietnam, combined.

How could we have ended slavery otherwise? I don’t pretend to know. Perhaps, as Will suggests, had the South been left to its own devices, Jim Crow would have been a lot more durable. On the other hand, that a South not embittered by bloodshed, conquest and Reconstruction, Sherman’s rape of Georgia, and the quashing of the important Constitutional question of secession (More below.) and states’ rights, could have gradually ended slavery and slowly developed, more organically, healthier race relations is not, I submit, impossible. I may reveal naïvety by expressing such an opinion, but, left with few options, I’m willing to entertain it.

Ultimately, for me, the question of slavery is almost irrelevant to my personal assessment of the sixteenth president. Rather, his willful violation of the Constitution (the fundamental point of my Taney piece), nationalism/centralism, refusal to negotiate with the secessionists over the legal transfer of Fort Sumter (and other forts) to the Confederacy (which could have precluded the attack that incited the War Between the States), and being beholden to corporate interests inform my judgment. That emancipation resulted from his war wins him a few points, but that it was such a bloody, dubious war that brought forth this result suffices to negate much of the gain here.

The Taney piece to which Will responded will be on the front page of the forthcoming issue of The Terrapin Times. The fact is that I’m running a beleaguered-from-the-get-go right-of-centre paper on a heavily liberal/apathetic campus; running a piece like this is something I’m doing because a) Provocation draws attention and b) Notwithstanding the great flaw of Taney’s, I believe that people ought to realize the important of Taney qua judge in Ex parte Merryman whose opinion was most recently reaffirmed in Hamdi v. Rumsfeld. Had I written a piece about Lincoln, I, doubtless, should have dedicated more of the piece to criticizing him, but I also should have offered at least a small bone to the vastly more numerous pro-Lincoln crowd.

On the question of secession, I hold firmly no opinion. Unwilling to say that the States definitely possess the right to secede, I’m even more loath to submit that they lack such a right. Doubtless, whatever the Constitution says, I suspect that many States’ leaders failed to realize the Hamiltonian machinations at work to guarantee that, regardless of what they all believed, whatever right to re-establish autonomy would slip into the mists of history courtesy of the centralizing tendencies of Madison’s document.

The Maryland Corner: “Redeeming Roger Taney”


(from the forthcoming issue of The Terrapin Times, the first installment of our new feature, dedicated to important political figures, past and present, on the Right from Maryland, tentatively called The Maryland Corner)


Americans have a way of spinning history to bolster our national mythology. JFK’s foreign policy was nightmarish — to speak nothing of his personal life —, yet we extol him. FDR attempted to pack the Supreme Court, interned Japanese-Americans in numbers that dwarf the count of unfortunate souls at Guantánamo, and eagerly collaborated with the murderous Stalin, but idolizing him as the conqueror of the Depression and scourge of the Axis powers is much more palatable than embracing the truth. 


Then there is Abraham Lincoln. Ignoring that he needlessly sanctioned the bloodiest war in American history and put the kibosh on the important question of whether states, sovereign when they entered into the great experiment in liberty, could secede and reassert their autonomy, we revere the sixteenth president as a great liberator, the savior of the Union. We relegate Maryland native and Lincoln antagonist Chief Justice Roger B. Taney to the deepest pits of Hell for his opinion in Dred Scott v. Sanford.


Yet, ironically, as we begin at least four years under our first Black president, a man esteemed as the new Lincoln, we ought to look for inspiration to no less a man than the estimable author of that loathsome Dred Scott decision.


Roger Brooke Taney, of Calvert County, was hardly perfect; he was, however, more complex than many would care to admit. His opining that Blacks were “beings of an inferior order, and altogether unfit to associate with the white race,” and thus ineligible for citizenship, is detestable. Nevertheless, he had personal qualms with the “peculiar institution,” and manumitted his own slaves. A dual-federalist, he stood firmly between ardent states’ rights champions and the advocates of centralization, proud of his Southern heritage and a lover of Maryland, but a loyal American who sought the preservation of the Union. 


Most important today, as our government continues to expropriate powers at the cost of our God-given liberties, Taney stood up to Lincoln’s antipathetic attitude toward the Constitution. After the mayor of Baltimore and governor of Maryland, to the president’s consternation, proclaimed that they would permit no more Union troops to transfer through their respective jurisdictions, Lincoln instructed General Scott to suspend the writ of habeas corpus within the area of the military line. 


Obeying the governor’s orders, Lt. John Merryman, of the Baltimore County Horse Guards, burned bridges to prevent additional Pennsylvania soldiers from entering Maryland; not long thereafter, he was arrested on charges of treason. Numerous Maryland legislators soon found themselves incarcerated for no obvious reason. 


Enter Roger Taney. Presiding over the U.S. Circuit Court for the District of Maryland, Taney, in Ex parte Merryman, reaffirmed that the president lacks authority to suspend the writ of habeas corpus — a power expressly delegated to Congress in Article I of the Constitution. A defiant Lincoln persisted, widening the scope of the territory wherein the writ was held in abeyance. Employing arguments frightfully comparable to — but exceedingly more eloquent than — those to which we have grown accustomed in this tumultuous decade, Lincoln asked rhetorically of Congress, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Orwellian reverence for the rule of law at its finest.


Taney’s comprehension of liberty was incomplete, perhaps unforgivably so. That President Obama intends to try to suspend the writ of habeas corpus is dubious. However, given Obama’s vision for expanding government’s role in the economy, embrace of the Pax Americana ideology, and, more relevant, support for the USA PATRIOT Act and the FISA “compromise,” one is right to fear for his liberty. If we look beyond his imperfections, in Roger Taney we see a Marylander of whom we should be proud and whose spirited defense of the Constitution we should aspire to mimic.