The Tempting of the Plutocracy

The Tempting of the Plutocracy

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

–     9^th Amendment to the Constitution

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

-       14^th Amendment, Section One, to the Constitution

Every age and generation must be free to act for itself, in all cases, as the ages and generation which proceeded it. The vanity and presumption of governing beyond the grave, is the most ridiculous and insolent of all tyrannies.

-       The Rights of Man, Thomas Paine

By J.M. Hamilton (4-3-2017)

Approximately thirty years ago, President Reagan nominated Robert Bork to be a member of the Supreme Court of the United States (SCOTUS).  Some of my older readers may remember Mr. Bork as Mr. Nixon’s legal assassin from Saturday Night Massacre fame.  Mr. Bork was subsequently rejected by the U.S. Senate, and in 1990, he released a book, entitled: The Tempting of America.

In The Tempting of America, Mr. Bork outlined how the Supreme Court had been politicized, since its founding, but specifically lamented the judicially activist courts from FDR forward.  “Judicial activism,” at least as outlined by Mr. Bork, is characterized by finding rights within the Constitution – where, per conservative jurist, none are said to exist; legislating from the bench; and whereby a jurist’s personal biases, predilections, and prejudices are utilized to rationalize a decision.

This is as opposed to Mr. Bork’s methodology, “Originalism.”  Originalism is the belief that the Constitution should be interpreted literally, and utilizing revolutionary American history to further help clarify, the framers' intent (e.g. the Federalist Papers).

Judicial Activists believe the Constitution is a living breathing document, designed to evolve to meet the needs & standards of today’s citizens.  While Originalist (often associated with, strict constructionist) believe the Constitution is frozen in time, and should only be interpreted from the perspective of white men (from over 240 years ago), many of whom owned slaves and nearly all, believed women and children to be inferior.

As outlined by Jill Lepore, recently in the New Yorker, both Originalist and Judicial Activist have been in an academic & historical arms race, post-Bork, so that both sides of the judicial divide can rationalize their decisions using history.  And not just American revolutionary history, but per recent rulings, both sides – republican & democrat appointees-  have utilized history going back as far as ancient Rome and Greece.

At the end of his book, Mr. Bork was afraid that the Constitution & the SCOTUS were being perverted and politicized far away from the framers' intent, which only Originalist can mysteriously divine.  Moreover, Mr. Bork feared that SCOTUS was being kidnapped to legislate from the bench a liberal agenda.

Of course, it may have never crossed Mr. Bork’s mind that the Originalist doctrine could be utilized to legislate the plutocracy’s, or the GOP’s, agenda from the bench, including but not limited to: corporations are people, except for when it comes time to hold said corporation accountable for criminal behavior & civil infractions (because said corporation, and its leadership, are too big to fail/jail); and the worst of the lot, money equals freedom of speech, where plutocrats are free to buy entire governor’s mansions and federal and state legislative bodies.

The reality is the tables have turned. Our apolitical SCOTUS jurists, in lieu of legislating from the bench a liberal agenda, are now legislating the plutocracy’s retrograde & reactionary neoliberal agenda: where women are chattel; minorities are placed at the bottom of the economic & political food chain; money talks; and only billionaire’s opinions count. 

All of this is rather insane, including the fairy tales we tell our children throughout grade and high school, that the unbiased person in the black robes – w/out fear or prejudice – like an angel descended from the heavens – has come down to divine the law and impart justice to us mere mortals.  Think about it… a lot like the bull the elite’s peddle about America being a meritocracy.  All one has to do is check out Judge Gorsuch’s privileged upbringing, the schools he attended, and his high placed billionaire connections to lance that meritocratic boil. 

If you’ve never been in a courtroom, ask any lawyer who has…  the courtroom is the most politically charged environment many U.S. citizens will ever encounter, outside of - possibly – a POTUS campaign rally.  It's time to bury this fable once and for all:  Judges are political, and they – as humans - bring all sorts of baggage with them into their courtrooms.  All judges have biases, egos, and are entirely human; and to pretend otherwise, whether you’re a democrat or a republican, plays directly into tyranny’s hands.

Judge Scalia was a homophobe, misogynist, and a racist.  Judge Gorsuch was placed on a list of possible SCOTUS nominees, from the ultra-rightwing Heritage Foundation and the Federalist Society, because he most closely resembled Mr. Scalia’s judicial philosophy (which comes right from the Bork playbook).  Orange Julius Caesar picked Gorsuch off the list, and now the judge is before another apolitical body, the U.S. Senate, for approval. 

Why was Mr. Gorsuch picked?  Let’s be clear: It wasn’t because he was a liberal; it wasn’t because of merit; it wasn’t because of his preternatural ability to divine the law of the land & read our deceased founders’ minds; but yes, it was because Mr. Gorsuch’s judicial philosophy, and political views, most closely resembled Justice Scalia’s - and the rightwing ideologues at the Heritage Foundation & the Federalist Society. 

In short, Mr. Gorsuch can be counted on to do the plutocracy’s bidding, at the expense of the little guy.  Of course, it was the little guy that POTUS Trump swore he’d protect, in order to get elected to the nation’s highest office.

And just like all of Trump’s campaign commitments and promises, as of late, here comes Gorsuch and his attendant baggage.

The irony in all this, as pointed out by Ms. Lepore, is the founders weren’t Originalist…. And if they were, the American colonies – or provinces - would still be a part of the Commonwealth and swearing allegiance to the Queen.  No, our founders – unlike the cowards w/in today’s federal and state legislative bodies – were radicals and revolutionaries, who placed their lives on the line for what they believed in.  They renounced the tyranny of the elite: the Crown, and the British aristocracy.  Today, we have new tyranny in America: the tyranny of a crony/rigged economic & political system (where monopolistic profits are privatized & losses socialized); the tyranny of experts, many of whom have been proven repeatedly wrong; and a financial aristocracy.

Sound familiar?

Here’s another irony: Our founders, and patriots of that era, resented being ruled by old dead white men.  Read the Declaration of Independence by Mr. Jefferson; read The Rights of Man by Mr. Jefferson’s dear friend, Thomas Paine.  Both revolutionary documents --– read this carefully, Originalist  –-- said that humanity should not be subjected to the tyranny of rule from beyond the grave.  These authors/patriots believed the earth and our government belonged to the living (not dead white men, or its equivalent, despotism). 

Sounds like our founders are trashing Originalist dogma, from beyond the grave.  What’s that you say, the Declaration of Independence (DOI) is a political/philosophical manifesto, and not the law of the land?  Seemingly, both Messrs. Lincoln and conservative columnist, George F. Will, would beg to differ with you.  Mr. Will, earlier this year, wrote an outstanding piece stating that the Declaration of Independence was, indeed, very much a part of the Constitution and the law of the land.  Indeed, the DOI’s central themes of equality - and the pursuit of life, liberty & happiness - can be found within the bill of rights, not the least of which is the 9th and 14th Amendments.

The founders were brilliant and prescient men.  And my guess is the founders would see right through the Originalist ideology, as little more than a power grab by a tyrannical monied elite (whereby, the ends always justify the means).

You see, the founders wanted the Constitution to be an evolving and living document.  They wanted this great experiment to succeed, which is more then I can say for some of today’s billionaires.  Some of the founders so dreaded issuing a Bill of Rights - because all rights not enumerated belonged to the human race – that they installed a 9th Amendment, that said just that. 

Just to clarify, if the founders didn’t spell it out in the Bill of Rights, all remaining rights – all natural rights - belong to the American people (and both Federal and State governments should not infringe upon these natural rights, period).  In the most liberal interpretation, the 9th Amendment protects nearly any behavior that doesn’t directly infringe upon the life, liberty & happiness/property of third parties, potentially, as a right unto itself.  (That is to say, rightwing, faux, Christians – seeking to legislate their version of morality, or establish Christianity as a state religion – need not apply.)

And then came the 14^th  Amendment, particularly Section One, (aka the equal protections clause). The 14^th Amendment was entirely necessary after the Civil War to insure that all men, and eventually women, were free, equal, and enjoy equal rights & protections under the law.  It’s the 14^th that, up until recently, had allowed SCOTUS to rein in rogue states in the South - who would like nothing more then to operate slave labor colonies, voter oppression, and the new Jim Crow - by means of the privatized prison industrial complex.  (See Nixon’s War on Drugs and the Southern Strategy)

Mr. Bork's book described a battle that continues to this day.  A battle fought by nine jurist, who issue rulings often using an American history that does not reflect well upon this nation or the United State’s awesome potential (i.e. slavery, Jim Crow, manifest destiny, native American genocide, obscene labor practices, robber barons owning the government, neo-colonialism, etc., etc.).  A battle fought by nine jurist, who remain on the court – often for generations – beyond when they were appointed.  A battle fought by nine jurist, who are not popularly elected and can rule until their bodies give out… not unlike, Monarchs.

Justice Scalia was appointed by Reagan in 1986, and he died last year... thirty-long-years-later.  Americans suffered thirty years of Scalia’s despicable beliefs and judicial philosophy, inspired by a man – Bork – who could not make it through the Senate’s confirmation process.

And now, Mr. Trump wants to replace Scalia with a clone, an errand boy for the oligarchy – Judge Gorsuch.   So we can have another thirty years of binary rulings from the Court?

Americans have been subject to the tyranny of SCOTUS, an elitist ruling body if there ever was one, for centuries.  Americans need judicial term limits and SCOTUS candidates who are subject to popular vote.

The plutocracy maybe tempted to game the system and seek out the trifecta.  That is to say, the financial elite own & operate the executive, legislative, and now, the judicial branches of government (thanks largely, to SCOTUS' Citizens United decision).  But, in doing so, the plutocracy – like the British aristocracy & monarchy before them – maybe sewing the seeds of their own destruction.

Copyright JM Hamilton Publishing 2017