Saturday, January 23, 2010

To Vibrate or not to Vibrate

Writing in Salon this week, Glenn Greenwald says we should not look to evil consequences when considering Citizen's Unived v. FEC. "...if the Constitution or other laws bar X, then X is not allowed regardless of how many good outcomes can be achieved by X." Well, that's undeniable.

I fear to disagree with Glenn Greenwald, especially once he has armed himself with the awful might of a tautology. Still, I must. I wish the Ring had never come to me.

It's true judges are bound by the law, and when the law is plain, consequences mean diddly. But when reasonable persons can disagree about the meaning or intent of a law, then consequences are invoked all the time. How else can a decision be made? Flip a coin? Cut for high card? Consult the entrails of a calf?

Chief Justice Roberts, himself, appeals to a fascinating consequence when he says denying free speech to corporations would subvert the "vibrant public discourse that is at the foundation of our democracy."

Really? I hadn't known before that democracy was meant to vibrate. Who knew the founders intended to create a sex toy? I always thought democracy was supposed to be, you know, democratic. That it was to secure human rights. That it should be a conversation among equals. But, apparently, it's supposed to give a relaxing massage.

(Roberts says far more than that, of course, but I'm picking on him. It's my blog. See Page 65 of the pdf)

Since four Justices of the Supreme Court disagree with the majority, and since many more Justices have historically disagreed with them, it appears that reasonable persons can disagree. Furthermore, since Chief Justice John Roberts makes an appeal to consequences—however dubious—he also must think the constitution is less than crystal clear about the degree to which corporations have free speech. And so does Justice Alito. And so, we may assume, do all of the majority.

Very well, then. If four Justices vehemently dissent, and even the majority apparently agree that the Constitution is not clear about the degree to which corporations enjoy free speech, then it must be safe for humble folk to assume that consequences are on the table. The majority, in fact, put them on the table.

So let us consider the consequences:

On one side of the question, democracy might cease to vibrate. On the other, why, it might cease to be. Can any doubt our Republic is now in deadly peril? Corporations enjoy privileges mortals do not enjoy. Corporations can live forever. Corporations can own other corporations. Corporations can amass unlimited wealth and power, and now, thanks to this appalling decision, they can use that wealth and power without hinderance to bend our elected representatives to their will, in spite of ours.

We have already seen a demonstration of it. From the moment Roberts™ re-opened a case that had already been decided on narrow grounds to review the broader issue of corporate free speech, the outcome was never in doubt.

Meanwhile, poll after poll demonstrated that a huge majority of Americans wanted real health care reform, with at least a public option. If our Republic was functioning as it should, the people would have gotten their will. But the will of other entities was imposed: the will of Big Insurance and Big Medicine. Apart from the power they already had—to saturate Washington with lobbyists and "campaign contributions," to create a grievously disinformed astroturf movement and send its dupes howling into town-hall meetings—fell the shadow of the power they were going to wield once the Court handed it to them, and every member of Congress felt the chill. Lobbyists would have made certain they did.

When we are governed, not by the will of the people, but by the will of corporations, then by definition we no longer live in a democracy, but in a corporatocracy, which can, in spite of the plain raison d'etre of the Constitution, destroy every happiness of the people and—oh, by the way—chuck the Constitution into a fire and laugh while it burns.

Still, against that, we must weigh that our democracy might cease to vibrate. One can see how reasonable persons might be swayed by so heavy a consequence.

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