Supreme Court Arrogance, Citizen United, and Amending the Constitution

Forwarded To:

Supreme Court:

Justice Samuel A. Alito, Jr., Justice Ruth Bader Ginsburg, Justice Stephen G. Breyer, Justice Elena Kagan, Justice Anthony M. Kennedy, Chief Justice John G. Roberts,Jr., Justice Antonin Scalia, Justice Sonia Sotomayor, Justice Clarence Thomas

President Barack Obama

Vice President Joe Biden

Congress:

John A. Boehner (Speaker of the House), John Conyers, Jr. (Ranking Member House Judiciary Committee), Chuck Grassley (Ranking Member Senate Judiciary Committee), Patrick J. Leahy (Chairman Senate Judiciary Committee), Mitch McConnell (Senate Republican Leader), Nancy Pelosi (House Democratic Leader), Harry Reid (Senate Democratic Leader), Lamar Smith (Chairman House Judiciary Committee)

Magazine Editors:

Monika Bauerlein (Mother Jones), Clara Jeffery  (Mother Jones), Richard Just (The New Republic), William Kristol (The Weekly Standard), Rich Lowry (National Review), Adam Moss (New York Magazine), David Remnick (The New Yorker), Ellen Rosenbush (Harper’s Magazine), Matthew Rothschild (The Progressive), Richard Stengel (Time Magazine), Katrina vanden Heuvel (The Nation), Robert Wright (The Atlantic), Mortimer B. Zuckerman (US News & World Report)

Jeffrey D. Clements

Author of Corporations are not People

Cofounder of Free Speech for People

MSNBC Anchors:

Martin Bashir, Mika Brzezinski, David Gregory, Melissa Harris-Perry, Chris Hayes, Rachel Maddow, Chris Matthews, Lawrence O’Donnell, Al Sharpton, Chuck Todd, Alex Wagner

CNN & PBS ANCHORS:

Wolf Blitzer, Candy Crowley, Gwen Ifill, Charlie Rose

The U.S. Supreme Court’s ruling in Citizens United v. Federal Election Commission in 2009 opened up the possibility of rich individuals, rich families, and rich public and private corporations, domestic and foreign in all cases, to spend huge sums of money in America’s national, state, local, and judicial elections, and with the right to spend this money in secrecy.

This decision was the work of the five conservative Justices of the Supreme Court, including Chief Justice John Roberts, with the other Justices being Samuel Alito, Clarence Thomas, Anthony Kennedy, and Antonin Scalia.  These Justices, like others on the Court, were fully aware of the previous string of Supreme Court decisions, dating back to 1907 (The Tillman Act) that endeavored to keep corporate money out of America’s elections, or seriously to restrain corporate contributions.

It was their knowledge of these decisions and the fact that they were all strong pro-corporate Justices, that the five conservative Justices were motivated to overturn previous U.S. Supreme Court, and lower national court decisions.  They obviously wanted rich and powerful individuals, families and corporations, foreign and domestic, not only to be able to spend huge sums of money in the country’s elections, but to control these elections, and the elected officials they produced.

President Obama criticized this decision in his State of the Union Message in 2010, with Justice Samuel Alito visibly showing anger at the criticism.  Chief Justice Roberts weighed in against the President’s criticism for several days after he made it.  There were a number of Republican politicians and supporters especially conservative radio and television talk show hosts who chastised the President.  The decision, surprisingly, was criticized by some rich individuals in the corporate world, such as Yvon Chouinard of Patagonia, Ben Cohen and Jerry Greenfield of Ben & Jerry’s Ice Cream, and Wayne Selby of Calvert Social Investment Foundation.

 Jeffrey D. Clements, a lawyer and founder of Free Speech for People, and author of Corporations are not People, has been involved in organizing individuals and groups to oppose Citizens United.  He has been inspired by individuals from the corporate world, like those mentioned above, and also by Representatives and Senators in Congress who oppose the Court ruling, and who have devised legislation to curb its implementation, or amendments to get rid of it.  He was particularly inspired by talk and action to add an amendment to the Constitution that would overturn Citizens United.  He joined with others to devise what the drafters have called The People’s Rights Amendment.  This amendment appeared in Clements’s book, and it has the support of corporate individuals and groups such as Move to Amend, Public Citizen, Center for Media and Democracy, Common Cause, People for the American Way, and Business for Democracy.

Clements’s book has become a rallying point for those interested in getting Congress and the states to pass the People’s Rights Amendment.  He seems to be a titular leader of a movement that has been launched to put it before the Congress and the public and before the states of the Union.

But it seems to me that Clements and his cohorts, individuals, and groups, and their growing movement are on the wrong track.  They are operating on the basis- - which is false- - that an amendment is needed to overturn a U.S. Supreme Court decision.  This simply is not so.  Article III of the Constitution pertains to the national Supreme Court and other national courts.  There are six paragraphs in that Article and none of them indicate that it is necessary to have an amendment to overturn a U.S. Supreme Court decision.  That decision could be overturned by Congressional legislation. 

One of the tactics that both the Supreme Court and Congress have used in American history is to channel individuals and groups into pursuing an amendment to the Constitution to bring political and social change to the country, because they were not willing to make the changes people were demanding. Sometimes, it is necessary to amend the Constitution to effect desired changes.  This was true with respect to the 13^th, 14^th, 15^th, 22nd, and 26^th Amendments, with the latter two Amendments limiting Presidential terms, and extending the vote to 18 year olds, respectively.

  But there was clearly no need to have the 19^th Amendment that extended voting rights to women.  White men in Congress and in the Supreme Court forced this pursuit on white and other women in the country. In his book, Clements noted that in 1874 the U.S. Supreme Court declared “that even if women were citizens, they had no right to vote because the Constitution did not guarantee the right to vote as among the fundamental rights, privileges, or immunities of citizenship” (p. 177).  Clements seems to be satisfied with that answer, and with women having pursued an amendment to the Constitution to obtain the right to vote.

But why would the Court’s answer be acceptable?  The Constitution did not specifically confer voting rights on white men, or any other men in the country, but from the time of the establishment of the republic to the war between the United States and Southern Confederacy, white men voted in all elections.  There were even some Black men in the North who voted who were not regarded by white men or white women in the region as being citizens of the country.

But white women were citizens, and under the 15^th Amendment, they were entitled to vote.  That Amendment reads: “SECTION 1.  The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition or servitude.”  But while the citizens’ part applied to white women, they were denied the right to vote.  And the U.S. Supreme Court was involved in denying their right to vote, meaning that Justices of this Court violated the Constitution that they had taken an oath to uphold.

In 1965, the Voting Rights Act was passed, which invested Black people, men and women, with national voting rights, on the basis that they were citizens of the country.  The law actually restored the national rights that the Supreme Court, the national government, and southern state governments had taken away between 1875 and the early 1900s, and kept from Blacks until the early 1960s.  But the restoration of the national voting rights occurred without Blacks and their white allies having to pursue an amendment to the Constitution to achieve this outcome.  White, Black, and other women should not have had to seek an amendment either, because their rights, as citizens of the country, had been guaranteed by the 15^th Amendment.

The U.S. Supreme Court has a history of violating the rights of people, especially Black people, as per the decisions in the early 1880s that took away their national civil and political rights.  There was the Plessey v. Ferguson decision in 1896 that sanctioned the racist segregation laws of the South and the denial of Black civil rights.  There were decisions in the 20^th century that denied Blacks jobs, recreational activities, places to live, and opportunities to acquire an education.

So violating the rights of people is not new for the U.S. Supreme Court.  Clements did not get into the Court’s suppression of Black rights, male and female, or the rights of white women.  He did make the argument, though, that the Court took rights from Americans and gave them to corporations.  He used the phrase “corporate rights” in his book, which is a term anathema to him:

The recent fabrication of “corporate rights” under the Constitution goes beyond elections and money in politics.  Citizens United is the extreme doctrine that courts have used with increasing aggression and hostility to the judgment of people and our elected representatives since 1980.  The courts have used the fabrication of corporate rights, particularly corporate “speech,” to strike down a wide range of commonsense laws in recent years, from those concerning clean and fair elections to environmental protection and energy to tobacco, alcohol, pharmaceuticals, and health care to consumer protection, lotteries, and gambling to race relations and much more (p. 173).

The idea that corporations have rights is based on Supreme Court decisions going back to the latter nineteenth century that inferred or stated that a corporation was a “person” before the law, with the same rights as an ordinary citizen.  Citizens United was predicated on this assumption and legal description of the corporation, which conveyed upon it First Amendment rights, namely, the right of freedom of speech, and due process of law.  Clements and those involved in his movement reject the idea of corporate rights, seeing the designation as a fabrication, as something that does not exist, and that is made up.  They are interested in having an amendment to the Constitution that takes away the notion of corporate rights, based on the idea that corporations are persons or people.  Clements and his movement have proffered the following Amendment to the Constitution:

“SECTION II. The words people, persons, or citizens as used in this Constitution do not include corporations, limited liability companies, or other corporate entities established by the law of any state, the United States, or any foreign state.  Such corporate entities are subject to any regulation as the people, through their elected state and federal representatives, deem reasonable and as are otherwise consistent with the powers of Congress and States under this Constitution” (p. 166).

This amendment is inadequate, and the wrong one to propose, as I will shortly seek to show.  But here I want to indicate how Clements undermined the People’s Rights Amendment that he and his group proffered.  While the Amendment rejects the idea that the corporation is a person, Clement at the same time, and contradictorily, accepts that reality.  He wrote in his book:

Under state and federal law, corporations are “persons” for the purpose of contracting, suing, being sued, transacting business, and continuing operations as employees come and go.  Under state and federal law, corporations are “persons” for numerous purposes, from trademark protection to criminal prosecution.  The People’s Rights Amendment has no affect whatsoever on those state and federal laws.  The People’s Rights Amendment stops the radical and improper application of the corporate “person” concept to the rights of people under the Constitution and Bill of Rights (p. 170).

So, according to Clements and others it is okay for corporations to be regarded as “persons” when they engage in financial or economic activity, but not when they relate to people.  But in engaging in financial and economic activities, corporations automatically engage with people.  They could do all the things that Clements referred to as institutions- - indeed, as the institutions they are, and that their corporate charters declare them to be.  The words people, persons, or citizens do not have to be used at all in talking about a corporation.

Accepting corporations as persons under any circumstances, or by any law, undermines the People’s Rights Amendment.  And there is a failure on Clements’s part and on that of others in not recognizing that the U.S. Supreme Court is part of the national government, or the federal government, as it is popularly referred to.  It is the third branch of the national government.  So, by saying that the federal government can define the corporation as a person is the same as saying that the Supreme Court has a legitimate right to do so.

The Supreme Court has argued that it has a constitutional obligation to do so, because the corporation is a “person” in law, and has been regarded as such, since the latter nineteenth century.  Clements and his group should argue in strong terms, which they do not seem to do, that when the U.S. Supreme Court used the 14^th Amendment to declare or imply that a corporation was a “person” that this was the Court acting in a clear unconstitutional manner.  The 14^th Amendment reads as follows:

SECTION I: 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 any person within its jurisdiction the equal protection of the laws.

The words corporation or corporations do not appear in this Amendment.  To include them even implicitly, let alone explicitly, is a clear violation of this Amendment, and the Constitution itself, and by the Supreme Court!  This behavior also amounts to amending the Constitution, which violates Article V, which spells out the proper way the document is to be amended.  These two instances of Supreme Court behavior not only represent violations of the Constitution, but instances of abusive power.

Justices of the U.S. Supreme Court, or of other national courts, would never refer to the “birth” of a corporation, or refer to a corporation as being “naturalized” or as a “naturalized citizen.”  This behavior would be the subject of great ridicule, and would lead to the ousting of some Supreme Court Justices.  The U.S. Supreme Court and other national courts do not like to refer to a corporation as a citizen, which can be attributed to a particular restraint. 

If the corporation were a citizen, then it would have the right to vote.  The 15^th Amendment says citizens have a right to vote.  So why is it that Exxon Mobil, JP Morgan Chase, Citicorp, Goldman Sachs, Bank of America, Walmart, General Motors, Koch Industries, UnitedHealth Group, or Cargill do not vote in the country’s elections?  Because they are not eligible to and would not be able to get away with doing so, because Americans know that they are not citizens like they are.

Yet, the Supreme Court insists on arguing that the corporation is a person, and implies that it is a citizen, and makes decisions about a corporation on these bases.  This means that the Supreme Court makes decisions predicated on fantasies, on the basis of things that do not exist, that are made up.  The Constitution cannot be used- - certainly should not be used- - to support or to promote entities that do not exist and then make rulings on their behalf; or rulings based on non-existent entities that result in overturning a law, or denying a real life entity.  Yet, the U.S. Supreme Court has been engaged in this kind of unconstitutional, autocratic, and abusive power since the latter nineteenth century, and just recently with Citizens United, when it threw out a string of High Court and other court decisions that had denied that the corporation was a person or “voice” that had a right to freedom of speech, and that money equaled free speech.

The whole argument was absurd, not only by declaring the corporation to be a person and a “voice,” but in equating money with free speech.  This is the same as equating a microphone or a megaphone with free speech.   These are facilitators of speech, as is the human voice, but none of these facilitators are speech itself. Clements wrote in his book “With the creation of corporate ‘voices,’ ‘speech,’ and ‘rights,’ the Bill of Rights has been radically altered. The Twenty-Eighth Amendment will protect the First Amendment and the rest of the Bill of Rights for people and end the distortion of turning corporations into ‘people’ (p.177).

This is actually an inadequate way of explaining the U.S. Supreme Court’s behavior.  Investing non-existent entities into an article or clause of the Constitution is not only a radical thing to do, but it is an act of amending the Constitution without constitutional authorization.  This is Supreme Court behavior that should be publicly called into question and not glossed over, or accepted as an inevitable reality, or the continuation of some long-standing or High Court tradition.

 Indeed, the Citizens United decision has called forth a need to add two new amendments to the Constitution, with the People’s Rights Amendment not being one of them, which shadow-boxes with the realities that have to be dealt with.  There should be an amendment relating to corporations and one relating to the Supreme Court.

 With respect to the first of these amendments, it could indicate the things that Clements’s group said about the corporation.  But that amendment would have to include much more than that.  The corporation has no presence in the Constitution, in the form of direct reference, and this is precisely what needs to be inserted into the Constitution.

 In 1975, Senator Eugene McCarthy expressed his alarm that the corporation, as an institution, had not been drawn into the orbit of the Constitution, to give it a constitutional status and reading.  In a book of that year entitled The Hard Years: A Look at Contemporary American Institutions, he wrote:

The corporation has developed into a separate center of power.  It is one, which was not anticipated or provided for in the Constitution.  It is one which has not been subject to the general laws of dealing with business and financial practices.  And it is one which has assumed functions that go far beyond its original economic purposes (p. 61).

 Those functions are political functions, and not just donating money to candidates, campaigns, and elections, or helping to run them, or getting politicians elected or appointed to political office, but also writing laws --done by lobbyists and others-- that elected officials then introduce and pass in government and thereby in this indirect manner allow unelected outside elements to participate in the governing of the country.  The corporations are engaging in law making, rulemaking, and governing, when they have no constitutional right to do so.  These are abuses of power and the Constitution.

 Two years after McCarthy’s book appeared, economist and social critic John Kenneth Galbraith said in The Age of Uncertainty: “Between the modern corporation and the modern state there is a deeply symbiotic relationship based on shared power and shared wealth” (p.258).  The year before that writing, political scientist Arthur Selwyn Miller published a work entitled The Modern Corporate State: Private Governments and the American Constitution.  Miller rejected corporations functioning as “private governments” in the country, and trying to use the Constitution to justify this existence and this kind of functioning.

And a real concern about the Supreme Court altering--i.e. amending the Bill of Rights by autocratic fiat--is that it can be imagined that it will allow the 10th Amendment to be used by the corporations functioning as private governments.  That Amendment reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

 Alternatively, since the Congress and Supreme Court and other courts regard the corporations as persons, people, and citizens, one can see how corporations might seek to claim that the power not given to the national government, accrues to them as part of the 10^th Amendment reference: “to the people.”

 One can see, therefore, that Clements and his movement are short-sighted.  While the words person, persons, people, citizen, or citizens, should not be used in a constitutional way with the corporations, that will not keep them from exercising great, and unrestrained power, financial, economic, and political in the country.  There has to be an amendment that places the corporation—public, private, or not-for-profit within the framework of the Constitution, where it would be subjected to various provisions.  The following could be some of those provisions:

 The corporation is an institution not an artificial, fictional, or legal person, moral citizen, or people.

Neither the 1^st, 10^th, 14^th, 15^th, or 24^th Amendments apply to the corporation.

Corporations that sell stock to the public are public institutions and are subject to Congressional and state regulation as such.

Closely held corporations are public institutions, and are subject to Congressional and state regulation as such.

Not-for-profit corporations are public institutions and are subject to Congressional and state regulation as such.

The federal government exists in a partnership with the American economy and the corporate and private enterprises in it, and has the responsibility of overseeing, regulating, and helping to finance this economy.

 Corporations cannot contribute to political candidates, political campaigns, or elections, government or judicial, out of the corporate treasury, but individual members of a corporation can make such contributions, as specified by the Congress.

Fines or imprisonment, or both, will be instituted by federal and state governments against individual members of a corporation who seek in any way to use the corporate treasury, or seek to enable the corporation itself to make contributions to candidates, political campaigns, and government and judicial elections.

Corporations that contribute to candidates, political campaigns, or governmental or judicial elections, will be subject to a large fine or the loss of their federal or state charters.

 It is to be construed as unconstitutional and a criminal offense, punishable by a fine, imprisonment, or both, for a current or former member of a corporation, or any individual or group outside of government, to write laws, regulations, rules of implementation or enforcement of laws or regulations, or programs for elected members of the federal or state governments.

 The Supreme Court is in need of some serious changes in the way it functions, and an amendment to the Constitution can bring about these changes.  This institution has the distinction, although not known or understood by the American people, of often functioning outside the boundaries set for it by the Constitution, as reflected in the Citizens United ruling.

This practice of unconstitutional Supreme Court behavior was initiated at the outset of the High Court’s history as the brainchild of its fourth Chief Justice John Marshall in the early decades of the nineteenth century.  Chief Justices throughout the nineteenth century, especially Morrison R. Waite, Stephen J. Field, and Melville W. Fuller in the latter part of the century, vigorously led the Court in functioning outside its constitutional authority.

Marshall projected the idea that the Supreme Court had the constitutional authority to veto Congressional legislation or Presidential actions; or, in other terms, had the constitutional authority to judge whether Congressional laws and Presidential actions were constitutional or unconstitutional.  But this was an authority and power that the Constitution did not give to the Supreme Court.

 As said earlier, there are six paragraphs in Article III that pertain to the Supreme Court.  Those paragraphs refer to the Supreme Court as the highest court of appeals in the land, with the right to conduct judicial review of cases that come to it through the hierarchical national or federal court system.  There is no mention in any of the paragraphs that the Supreme Court has veto power over the Congress or the President.

 Yet the widespread belief in the country and which has been around for scores of decades is that the Supreme Court has the authority to declare a Congressional law constitutional or unconstitutional, and that this authority was initially executed in the Marbury v. Madison case that came before John Marshall and his Court.  But those making this assertion were always wrong in doing so, because this case did not involve Congressional legislation, and, thus, there was no law to be declared unconstitutional.

 Marbury v. Madison was a case about a political appointment.  John Adams, a Federalist President, had appointed Federalist William Marbury as a federal justice of the peace just before he left office.  But Marbury’s commission was signed so late, it did not reach him until after Thomas Jefferson had been sworn in as the new President.  James Madison, who was Secretary of State, and a Democratic Republican like Jefferson, would not give Marbury his commission.  Marbury appealed to John Marshall who was also a Federalist, and the Supreme Court, to force Madison to do so.  Marshall and the Court had the power to do that given to it by the Judiciary Act of 1789, but they refused to execute that power.

So this puts to rest that a Congressional law was involved in the Marbury v. Madison case, and that Marshall overturned this law and set the High Court out on the practice of doing that.  But Marshall, a strong nationalist, was very interested in the Supreme Court having equal power with the other two branches of the national government.  And to him that meant the Supreme Court not only being able to exercise judicial review of Congressional legislation, but having the capability of voiding it if the Court deemed it necessary.

 As Marshall knew, Article III did not give the Supreme Court the right to review Congressional legislation, not even state legislation.  But the Judiciary Act of 1789 invested the Supreme Court and other national courts with the right to review state laws, and even the prerogative to overturn state laws.  Noted historians Winthrop Jordan and Leon Litwack wrote in their popular history textbook, The United States A Brief Edition: “The first Congress spelled out the procedure [in the Judiciary Act of 1789] by which federal courts could review- - and if necessary- - void state laws and state court decisions involving powers and duties that the Constitution gave to the federal government” (p. 90).

 But the Judiciary Act did not extend this power to the federal courts in relationship to the Congress and its legislation.  And Article III did not provide it.  So the only way for Chief Justice Marshall and other Supreme Court Justices to use this power against the Congress, or against the President, would be for them to take it, and make it a power of the Supreme Court and not bother to be restrained by the Constitution and the limitations it imposed on the Court, and which Marshall and other Justices took an oath to uphold.

Thus, when Jeffrey Clements and his oppositional group argue that it is necessary to have an amendment to the Constitution to overturn a Supreme Court decision, they are showing that they do not know that the institution does not have and has never had the Constitutional power to overturn a Congressional law or a Presidential action.  It did these things in practice and for a long time, and still does so, as Citizens United indicates.  But the practice has never had constitutional authorization or legitimacy.

 Here is what Jordan and Litwack say about the Supreme Court’s power under the Constitution, which can be seen by just reading Article III of the document:

The Constitution provided for the national judicial system.  At the head of

the system stood the Supreme Court of the United States.  It could decide

cases on appeal from lower federal courts.  The Constitution made no

specific provision for judicial review of federal legislation- -that is, the

power of federal courts to declare acts of Congress unconstitutional.

But the Supreme Court later concluded that any state actions or laws

that violate the supreme powers of the federal government must be

found unconstitutional by the federal courts.  It was a short step for

the Supreme Court to decide that it also had the power to declare acts

of the federal Congress and the President to be unconstitutional (pp.73-74).

  

The Supreme Court under its Chief Justices took this short, unconstitutional step, and engaged in this usurpation of power, to be able to exercise a veto over the Congress and the President.  The Constitution put the Congress and the Executive branch of the national government in a veto arrangement.  The President could veto a Congressional law, and Congress, with a 2/3 majority in both houses, could override a Presidential veto to make a bill a law.  The Supreme Court was not put into the national government veto pattern.  Chief Justices and other Justices put the Court in the arrangement, as spelled out in Article I and II, which involved Justices and the Court improperly amending the Constitution.

 But the Supreme Court did not just establish a veto power for itself by an improper amendment to the Constitution, it established an imperium veto for itself, because it put itself in a position, as an unelected body, to veto the actions of the other two branches of the national government elected by the people; to declare the constitutionality or unconstitutionality of what they did.  Who has the authority to declare whether the Supreme Court has acted constitutionally or unconstitutionally?  Whatever happened to the “checks and balances” principle that the Founding Fathers embedded in the Constitution?  From the latter nineteenth century on, Presidents and Congresses, and the American people have acquiesced to the Supreme Court’s usurpation of constitutional and national governmental power with the exercise of its autocratic imperium veto.

 This constitutional abuse of High Court power was always couched in language that hid it, justified it, or that made it seem like it was a normal use of constitutional authority and power.  This abuse was shown when Chief Justices Morrison R. Waite, Stephen J. Field, and Melville W. Fuller, and their Courts, used the 14^th Amendment to declare usually by implication in cases ruled on, but in blatant public statements pertaining to them, that the 14^th Amendment constitutionally established the corporation as a “person.”  That view remained at the heart of Supreme Court decisions regarding corporations from that time on, in the latter nineteenth century down to the present day, and continues to be the basis for Court rulings on corporations in a wide variety of activities, including Citizens United, involved in corporate political activity.

 Declaring a corporation as a person, a citizen, or as people is not only without Constitutional authority or legitimacy, but it is a clear exercise of autocratic, undemocratic power, by the Supreme Court.  Citizens United was a conscious decision by conservative Justices to give extraordinary power to rich people and rich and powerful corporations over politicians, political parties, elections, and the American electorate.

 There have been people who have shown their disfavor with Citizens United.  As seen in the case of Jeffrey Clements and the individuals and groups that have united with him, who wish to pursue an amendment to the Constitution aimed at corporations, but not at the Supreme Court, which has been an agency to help the corporations function the way they do in the country.  The Supreme Court also has to be changed.

 Of course, it could be changed without an amendment to the Constitution.  The Congress invested the institution with review power over state laws, and even the power to veto them.  In short, the Congress gave the Supreme Court by law- - Congressional law- - review and veto power.  But what the Congress gives by law it can take away by law.

Prudence insists that an amendment should be passed to change the Supreme Court, precisely because what Congress can give by legislation it can take away with legislation.  Changes in the Supreme Court have to have some permanence to them, and that requires an amendment to the Constitution.  The following suggestions could be part of such an amendment:

 Supreme Court Justices and Justices of the lower federal Courts shall serve 12 year terms, after which they would be ineligible to serve as federal Justices.

 Define what constitutes “good behavior” of a Supreme Court Justice.  Does making a decision on behalf of non-existent entities constitute “good-behavior?” 

 Spell out clearly what judicial review means and how it applies to all national courts.

 Spell out under what circumstances, if any, the Supreme Court can declare  Congressional legislation and Presidential action unconstitutional.

 Spell out when, if ever, the Supreme Court can overturn a Congressional law or a Presidential action.

 Spell out if, when, or how Congress can overturn a Supreme Court decision with appropriate legislation to achieve a “check and balance” in national government institutions, and as a protection for the American people.

 A provision calling for a review of a Supreme Court Justice’s performance by the U.S. Senate that could possibly lead to a vote to remove a Justice from the bench for poor performance.

 A Justice can voluntarily recuse him or herself from a case, or can be subpoenaed by the Senate Judiciary Committee to hear reasons why recusing is not done, and have the power to recuse the Justice if the Committee deems it necessary, supported by a Senate majority vote.

Supreme Court cannot overturn existing law unless it can be shown that it is unconstitutional, based on provisions in the Constitution.

 Supreme Court cannot act as a legislative body and make law.

Supreme Court cannot create non-existent entities and then make rulings on their behalf.

 Jeffrey Clements and his group, like many Americans, view the Supreme Court as some sacrosanct institution that should not be strongly criticized.  The President and Congress, yes, but not the Supreme Court.  But this is nonsense.   The Supreme Court is a branch of the national government, there to serve the people like the other two branches, and when it functions as if it is superior to the other two branches of government, or to the American people, it needs to be roundly criticized, and changed in its behavior, as is being suggested in this writing.  There could be future Court decisions equally bad or worse than Citizens United that have adverse effects on the lives, well-being, and opportunities of the American people.  This frightful prospect can be avoided if Americans act to amend the Constitution with respect to the Supreme Court, along the lines suggested.