The Scalia v. Stevens Smackdown In President Obama's view, corporations are anathema not even George W. Bush—has sent liberaldom screaming into the streets more than the Supreme Court's recent 5-4 decision in Citizens United v. Federal Election Commission. The Court's ruling that corporations have a free-speech right to express opinions about politicians running for office really let the furies out.
President Obama's in-their-face criticism of the Supreme Court over Citizens United at his State of the Union speech got pundits on every blogger barstool chattering about the propriety of this public smackdown.
America's Democrats and Republicans, crudely defined, are with this presidency and this Congress living today on opposite sides of a moon that they both call the United States.
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That's nothing compared to how the Supremes smack each other inside their public decisions. Justice John Paul Stevens dismissed the majority's opinion, written by Anthony Kennedy, as lacking "a scintilla of evidence" for its argument and making "only a perfunctory attempt" to root its reasons in the First Amendment views of the Constitution's Framers.
Justice Antonin Scalia then wrote a majority concurrence solely so that he could go mano a mano with Justice Stevens. A mere three sentences in, he unloads: "The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment."
While the commentary on Citizens United rightly emphasized First Amendment law, the scrum inside the decision between Justices Stevens and Scalia, over the status of corporations in America, deserves more attention than it got.
Their dispute, and especially Justice Stevens's view of corporations, reveals a lot about why Mr. Obama and liberalism's left wing went nuts. It isn't just corporate political advertising that's anathema. Corporations themselves are anathema.
In his State of the Union swipe, Mr. Obama said the Citizens United decision would "open the floodgates for special interests." The "special interests," of course, is Democode for corporate interests. This week we learned Mr. Obama will try to convey his pro-business sentiments Feb. 24 to the Business Roundtable. Don't buy it.
Justice Stevens offered the historic and psychological basis for this foundational antipathy.
."Thomas Jefferson," he notes, "famously fretted that corporations would subvert the Republic." A citation quoted by the justice notes that "the word 'soulless' constantly recurs in debates over corporations"; and "corporations, it was feared, could concentrate the worst urges of whole groups of men."
But here's the public-philosophy belief that flows from this view: "The Framers thus took it as a given," in Justice Stevens's opinion, "that corporations could be comprehensively regulated (my emphasis) in the service of the public welfare." In short, private corporations have not much, if anything, to do with the public good.
In his crack-back concurrence, Justice Scalia ridicules "the corporation-hating quotations the dissent has dredged up." He notes that most corporations back then had "state-granted monopoly privileges" (sort of like Fannie and Freddie today—columnist's footnote) and that modern corporations without these state privileges "would probably have been favored by most of our enterprising Founders—excluding, perhaps, Thomas Jefferson and others favoring perpetuation of an agrarian society."
He ends with a conservative belief: "To exclude or impede corporate speech is to muzzle the principal agents of the modern free economy."
America's Democrats and Republicans, crudely defined, are with this presidency and this Congress living today on opposite sides of a moon that they both call the United States.
In the universe inhabited by Justice Stevens and President Obama, corporations—the private sector—are a suspect abstraction, ever tending toward "the worst urges" which have to be "comprehensively regulated." The saints regulate the sinners.
If you think this way, what one does to the private sector, such as the proposed $90 billion bank tax, can never be wrong in any serious way, so long as the rationale offered is the "public good." Private-sector players are seen as barely more than paid galley slaves on the ship of state. So it is with the health-care bill's mammoth, comprehensive regulation of American medicine and insurance.
Mr. Obama seems genuinely perplexed that the opposition can't just, you know, sign onto it. What's their problem? Evidently, the voters of Massachusetts have a problem with that and more.
In the past year, Mr. Obama and the Democratic Congress passed a $787 billion stimulus, seized banks and the auto industry, embarked on a $1 trillion reorganization of the private health-care system, and passed a fiscal 2010 budget that put spending as a percentage of GDP at 24.1%. These are very large claims for the public good.
This public-private tension is an ancient and never-ending debate in the U.S. But what we are seeing this year, in Massachusetts and elsewhere, is American voters arriving at a tipping point over the scale and role of government. Most Americans still go to work each day inside a private economy organized around tens of thousands of corporations. Their basic view of the world and that found inside Justice Stevens's dissent and this White House are out of sync.
Obama certainly isn't against corporations and neither am I. We both don't understand how they are entitled to flood the electoral process when they are not even allowed to vote.
Through Citgo, Hugo Chavez can now spend as much as he wants to influencing American elections. Somehow, I don't think that is what the founding fathers had in mind.
Right on Jimbo - Great Post!
I don't see this as a left or right topic. It's just an unexpected victory for all special interests at the expense of the people. I promise you won't like the results.
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