6 Ways
Our Supreme Court Has Defiled Our Constitution
By Gary
Corseri
O
tenderest of mercies! The right to speak
one's mind freely, the right to question and challenge--upon which all other
rights are hinged!
1. "Corporate
Personhood"
The first attack came almost two hundred years ago in
1819, as the Industrial Revolution was beginning to spin serious wheels in the
budding Empire. Blacks picked cotton in
the South and the mills hummed in Lowell, Mass., and other river-blessed
locations in the North. It was a hundred
years after Newcomen's steam engine, and less than two decades after Fulton's
steamboat would once again spur our westward expansion. Given such multifactoral impetus, and its own
proclivity--established by Marshall--to oversight, how could our Supreme Court
restrain its worst intentions?
And so it declared, in "Trustees of Dartmouth College vs
Woodward," the principle of "corporate personhood." The Court was essentially restating the 14th
Amendment, but now equating the "rights" of corporations to be as free as real,
live, human beings from any State's denial of "equal protection" under the laws within its jurisdiction.
Of course, this 14th Amendment "equal
protection" did not apply to cotton-picking slaves, "Indian savages," women,
etc.! And that's the assault on our
national consciousness and conscience.
And we have lived with that assault for nearly two centuries!
2. "Fire
in a Crowded Theater"
Fast forward exactly 1 century. Oliver Wendell Holmes, Jr. is now Chief
Justice, and the "budding Empire" is now fully fledged, not content with
spreading its eagle-wings over its own continent, but, since the Monroe
Doctrine, having declared its hegemony over the Western hemisphere, tightening
such with the Spanish-American war--the result of which sees it slaughtering
hundreds of thousands of Filipinos when they declare their own right to
"freedom of speech" and an independent republic!
Up to my own boyhood in New York City, Oliver Wendell
Holmes' father's poem, "Old Ironsides," was still standard 9th grade
fare. They say the acorn doesn't fall
far from the oak, and we may discern something of his son's patriotic fervor in
his father's bombastic poem about an a War of 1812 ship about to be
scuttled. Here's the middle stanza:
Her deck, once red
with heroes' blood,
Where knelt the vanquished foe,
When winds were hurrying o'er the flood,
And waves were white below,
No more shall feel the victor's tread,
Or know the conquered knee;--
The harpies of the shore shall pluck
The eagle of the sea!
The "hero's
blood" with which Oliver, Jr. wanted to anoint the world, the "victor's tread"
he wanted to protect, belonged to those doughboys drafted to fight Mr. Wilson's
"War To End All Wars." A group of
peacniks had tried to exercise their freedom of speech by distributing flyers
opposed to the draft. When the case of
"Schenck v. the United States" came before the Supreme Court, Chief Justice Holmes
argued in favor of abridging free speech, asserting:
"The most
stringent protection of free speech would not protect a man falsely shouting
fire in a crowded theater and causing a panic. [...] The question in every case
is whether the words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent."
Thus, Holmes
provides us two salient phrases in one short paragraph: "shouting fire in a
theater" and "clear and present danger."
Defenders of
Holmes like to underline the word "falsely" to excuse their man's unsubtle
attack on our First Amendment. I think they
miss the point. Is the distribution of
anti-war material really analogous to "falsely shouting fire in a crowded theater?" One could argue that the peace cadets were
actually trying to prevent or contain the fire that was then enveloping the
world! Further, the "clear and present
danger" was already there--it was called the Great War!
Fifty years
later, during another unnecessary war (as almost all wars are--despite the
pageantry and rhetoric), the Supreme Court at least tempered Holmes' imperious
judgment in the case of Brandenburg v. Ohio, limiting "banned speech" to the
incitation of "imminent lawless action."
Of course, a lot of damage had been done in the meantime. Free speech had been suppressed, and generations
had come and gone censoring themselves and others.
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