6 Ways the US Supreme Court Has Trashed and Rewritten Our Constitution
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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!