If
you've ever wondered how the Supreme Court, in its great wisdom, came
to the proposition that corporations are persons, with all the rights
thereof, you might try Millhiser's book. There is plenty of precedent
for that body making law out of whole cloth. Basically two forces are
at work in the court, as in our great land, sometimes in the same
justice, one dissenting, one dominating. A pro-democracy strand of
fairness based in the written constitution and the people's right to
govern themselves via the congress struggles against a commitment to
business owners (or one could say the 1%) and a distrust of
democracy. This latter faction parces the constitution where it can
but doesn't hesitate to invent, where needed, to advance those
interests. Today's court obviously has stood mostly in this camp, and
given the current congress and executive, stands poised to wade still
deeper into that unsavory swamp.
During
the Civil War, when the Union army took New Orleans, that city was
the least healthy in the country. Every summer thousands perished
from the heat-stirred effluence polluting the water system from
slaughter houses upstream. When the Union Army force-moved them
inland the death-rate plummeted. After the war things went back to
business-as-usual, including the toxicity. The reconstruction
government decided to require reform of the nasty enterprise.
Challenged by business, the supreme court eventually ruled in favor
of the restrictions but a dissent by Justice Field gave hope to
unbridled capitalism and in fact was cited, over the years, by many
state supreme courts, as if the dissent were law, in knocking down
other attempts to regulate business and protect workers and
environment.
The
Court played a part in a related story, the evisceration of that same
post-war, reconstruction body, where freed slaves were voting and
fully participating in the government itself. As you can imagine,
this was not acceptable to the former slave owners whose
rationalizations justifying slavery needed little tweaking to condone
the violent subjugation and demonization of their brothers from
across the sea. Black citizens were slaughtered in an incident
defending the reconstruction government from vigilantes. The great
court ruled that the plaintiffs had no federal remedy, they must rely
on the state government (the vigilantes), the very body oppressing
them. Needless to say, this ruling gave the south clear sailing. It
may not have re-instituted slavery but it came close. To put the final
nail in the coffin, in a disputed election Hayes was given the
presidency in exchange for ending reconstruction. Thus the march of
injustice staggered on.
These
cases demonstrate court polarity but they hardly begin to exhaust the
record, both prior to these judgements and since. A few examples:
The Fugitive Slave Act of 1850 required that free states return escaped
slaves to their “masters”. The Wisconsin Supreme Court ruled this
act unconstitutional but the Supreme Court over-ruled the decision in
1859. In Plessy vs. Ferguson (1896) the court unanimously ruled that
segregated railroad cars did not abridge the privileges nor
immunities of the colored race, nor deprive him(!) of property
without due process of law, nor deny him the equal protection of the
law. In another case Field stated that if blacks could not be
excluded from juries then the next outrage would be to grant women
the same right. Justice John Archibald Campbell looked to ambiguous
language in the 14th amendment to creatively protect white
supremacy. The court has shamefully ruled that slaves are not persons
but corporations are.
A
Pullman Porter strike against wage cuts was suppressed by the company
in collusion with the president, the attorney general and the courts.
Troops were sent to attack peaceful strikers. There is an interesting
section of the book describing the famous Pullman Town created by
that patrician. Eugene Debs, the great labor organizer and socialist
presidential candidate, defied the anti-union injunction and was
jailed. Later, during World War I. he was jailed again for speaking
against the war, wrecking his health and shortening his life. So much
for the first amendment.
The
court struck down child labor laws as interference with trade, and
vigorously struck down state laws attempting to work around their
judgements. Working conditions for children were horrendous, life
stumping and threatening, from black lung to lost limbs, long hours,
low pay and early death. These judgements gave industry, particularly
southern mills, a generation of cheap labor and decades of freedom
from federal regulation. The “freedom” to enter into contracts
was cited to deny workers the right to organize, as if to protect
workers when actually those contracts were lop-sided in the extreme,
unfair, burdensome and coercive. The right of owners however, to
collude and organize against unions was not to be questioned. Working
conditions were terrible for adults as well, dangerous, poorly paid
and brutal. In one month in 1907 all but five of the entire work
force at one mine were killed in explosions. There of course were the
company towns and stores that reduced workers to near feudal
conditions. The court upheld a Colorado mining company's right to pay
in script, redeemable only at the company store. Companies had
no incentive to spend on safety or training since the courts did not
hold them liable for injury or death.
Respected
(by the “right” people) theorist and scholar Professor Tiedman,
in his prolific and widely read articles, urged jurists to rule
whenever possible against the notion of majority rule – Democracy –
even when the constitution or precedent did not support the ruling.
Many state supreme courts enthusiastically complied.
Justice
Field, in his notorious dissents, thought business should be immune to
regulation, using the 14th Amendment in his twisted
arguments. The “freedom” of business to be unregulated was put
above the freedom of citizens to have clean drinking water, decent
wages, safe working conditions. Field wrote in dissent but
represented the “libertarian” strand, often dominating the court,
that reduces the bill of rights to protection of property. The
current court is not far from this position. The administration is
obviously appointing cabinet members, and soon the court no doubt,
who embrace this sinister point of view with a vengeance. In a case
closer to our time, a coal mine owner/CEO pumped $3 million into a
Virginia supreme court race, defeating the incumbent. His replacement
then voted to acquit the mine owner of negligence in the death of
minors. The Supreme Court ruled that the justice should have recused
himself but our own Chief Justice Roberts dissented.
For the
Injustice camp, books and information of the type offered in
Millhiser's book hardly matter. The numbers of people (voters) who
encounter it are relatively few and so impact elections not at all.
But offer up horror stories the book does, in a highly readable if
dense style. Tales necessary for an informed citizenry but also
confirmation of the ol' biblical saw, increase knowledge, increase
sorrow. It's not always all doom and gloom, after all, the court ruled favorably on Brown vs Board of Education (just barely, with much rangling despite the final unanimity) ending segregation, and Nixon had to hand over the incriminating tapes... but this history ought to alert us that the anti-democratic faction in our culture is a powerful force that requires a serious, sustained and focused response, the proverbial cost of liberty, eternal vigilance.
