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The Expansionist
Monday, February 15, 2010
 
Money is Not Speech. In voiding limits upon money poured into elections, the Supreme Court has made another absurd decision. It must not stand. Believe it or not, it is possible to undo a decision of the Supreme Court. But you wouldn't know that from the feigned helplessness of members of Congress. "Oh, woe are we! Judicial tyrants have made a decision, and we are helpless to do anything but obey!" No. Congress is not helpless. If anything, the Supreme Court is the very weakest of the three branches of the Federal Government. It is only 9 individuals; the decision at issue was made by 5 of them. Congress is 535 people, in the same town. If Congress wished to do so, as a matter of simple, physical practicality, it could send a deputation of, oh, 60 or so of its strongest members to the Supreme Court building, to grab the offending would-be tyrants, and beat them to death. Sic semper tyrannis and all that.
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The Constitution was never intended to make it impossible for the people to defend themselves from the rapacity of the rich, nor to empower the obscenely rich to buy elections. Conservatives are fond of talking about the "original intent" of the Framers of the Constitution. Let's see if they mean it.
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Bill Moyers does a good job on his PBS show in presenting the views of the Liberal/Left in behalf of the downtrodden. Unfortunately, the show ends up being infuriating to me because it never finds ways around the obstacles placed between the little guy and justice.
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Moyers addressed the recent Supreme Court decision that removed restrictions on corporations, including mega-corporations each of whose annual receipts are greater than the gross national product of many individual nations of the world. Moyers explicitly stated that the Court ruled that money is speech. I hadn't heard that in summaries of this most recent ruling, but the Court has in prior rulings equated money with speech, in a totally fraudulent and absurd misuse of language. Money is not speech. Money says nothing. Speech, that is, the passing of breath thru the vocal apparatus of a human being, or even the creation of meaningful noise by a speech synthesizer, is speech. Writing could be regarded as "speech", or "the press" for First Amendment purposes. But the rights of individuals set out in the Bill of Rights are not rights of business entities. That is plain to anyone with a brain. Alas, it is not plain to a majority of the Supreme Court of the United States.
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I suspect that those Supreme Court (in)Justices understand full well that a corporation is not a person and thus not entitled to the rights of a person, for instance, the right to vote. If a corporation is not entitled to vote, how is it entitled to influence the outcome of elections? Foreigners are not entitled to vote. Are foreign corporations entitled to influence elections? How can the Supreme Court prevent such influence, if an entity incorporated within the United States is actually controlled by foreigners?
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The fact is that the Supreme Court does not have the authority, under the Constitution, to void laws duly passed in accordance with the procedure set out in the Constitution. Article III, which establishes the Supreme Court and defines its powers, is a total of 6 short paragraphs. I defy anyone to find in Article III any right to void a Federal law.
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The Court simply grabbed that power, and no one stopped it. Most tyrants become tyrants because the people who could have stopped them failed or refused to do so.
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A Tale of Two Rivers. Perhaps the most notorious case in the past century is Adolf Hitler's marching troops into the Rhineland in defiance of the Treaty of Versailles. Many historians have observed that if the Allies who had insisted on demilitarization of the Rhineland had told Hitler to withdraw or the Allies would invade, Hitler's ambitions for territorial aggrandizement by force would have been ended, and the world would have been spared World War II.
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Now we face a comparable legal Rubicon, where the Supreme Court asserts supremacy over every person and institution in the United States: rule over 308 million people by 5 unelected judges. This is our Rhine, our Rubicon — one of many the Supreme Court has passed without Constitutional permission. It's time to drive the Court back to the original bounds established by the Constitution. It's time for Congress and the President (a) to pass legislation forbidding the Supreme Court (and thus, by extension, any lower court) from voiding any law passed according to the procedure established by the Constitution. Congress could as well (b) put before the States a Constitutional Amendment that would permit the Supreme Court to void a law BUT as well set out a process by which Congress, by a stated supermajority, with or without the President (or different supermajorities depending on whether the President joined in an override measure or vetoed it), could override a decision of the Supreme Court, on any matter whatsoever, just as Congress can override a Presidential veto.
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This would complete the system of checks and balances intended by the Framers of the Constitution. They never provided a means of overriding a decision of the Supreme Court voiding an act of legislation because they never intended the Supreme Court to have the power to void legislation.
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The purpose of the courts is very simple: to apply the generalities of the law to the specifics of a particular case. It is not for the courts to judge the law itself, only to APPLY the law to a particular set of circumstances. That was the British tradition, from which the Framers had only very recently emerged. Courts did not overrule Parliament. They wouldn't dare, and Parliament wouldn't put up with it. A jurist who claimed the right to overrule Parliament would find himself at the least looking for work, and very possibly bouncing at the end of a rope, or having his head separated from his neck by a sharp ax. Good system.
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Here, when the Supreme Court first asserted the right to void a law, in Marbury v. Madison in 1803, Congress should have passed legislation forbidding the Court from voiding a Federal law, and thus vacating the ruling in MvM. Alas, that was Congress's Rhineland moment, and it failed us. The Supreme Court crossed its first Rubicon, the Congress did not send troops to oppose it, and the Supreme Court established a disastrous precedent, by default.
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In the intervening centuries, the Supreme Court and subordinate courts have reduced the United States to a judgocracy, in which courts void laws and even mandate tax increases, legislating not just the amount of taxes but also how they are to be used. Nowhere in our system are courts entitled to do any such thing. But because Congress doesn't want to do these things, and be held to account for doing things that are necessary but unpopular, it has sat on its hands and permitted the Nation to be reduced to judicial tyranny.
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The Framers would be horrified at how supine and useless Congress has become in the face of judicial activism. Oddly, the "conservatives" who were furious at "judicial activism" when it ended segregation or established Miranda rights, are not just content but even ecstatic to have the Supreme Court's tyrants rule that corporations can spend billions to try to buy elections. What a sorry state this Republic has fallen into, when principles fall by the wayside and tyranny is accepted when it advances your side.
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The reality is that Congress can forbid the Supreme Court to do things it does not want it to do. The Constitution contains the following express provision (Article III, Section 2):
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions , and under such Regulations as the Congress shall make. [Emphasis added.]
What this means is that the Supreme Court can rule on only such matters as Congress PERMITS. If Congress does not want the Supreme Court to void laws, it can deny the Court the power to void laws, by one simple act of legislation to this effect:
Whereas, the courts of the United States exist only to apply the generalities of the laws, as duly enacted in accordance with the Constitution, to the specifics of a particular case; and

Whereas, the courts were not granted, by the Constitution, the right to void laws passed in rigorous adherence to the procedure set out in the Constitution; and

Whereas, only Congress and the President were given a role in passing legislation by the Framers of the Constitution, and by the States that ratified the Constitution; and

Whereas, Congress and the President are the sole judges of whether a law is consonant with the Constitution, and the courts have no say whatsoever in such determination;

Therefore be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that no court may void any law passed in accordance with the Constitution, but may only apply the laws relevant to a case at hand.
Problem solved, and not just for this particular matter, tho the Congress could specify at the end of a law reinstating McCain-Feingold and any other relevant legislation, as the last section in that legislation,
No court is authorized to void this legislation. Any judge, or judges, who attempt to void this legislation are guilty of an act of insurrection, punishable by death. The mere acceptance of a challenge to the Constitutionality of this legislation by any judge constitutes incontrovertible proof of guilt, which requires an automatic conviction and execution. Conviction for insurrection in attempting to void this legislation is unappealable, and the death penalty will be executed within one week of conviction.
Congress and the President are not helpless against the nonexistent might of the Supreme Court. Five old fools, or even the full nine members of the Supreme Court, cannot stand against the might of Congress and the President, the latter of whom has under his command military forces of 1.2 million people. To pretend there is nothing we can do about Supreme Court tyranny is not just preposterous. It is a LIE.
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(The current U.S. military death toll in Iraq, according to the website "Iraq Coalition Casualties", is 4,376 — for Israel.)



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