Thom: Well, here's the history of it, Rob. In fact, there's two different issues here frankly and one of them is going to be a topic of a book that I want to write the year after next, after I finish writing the book I'm writing right now. The first topic is the issue of Corporate Personhood and then the second topic, which frankly I think is even more important, is the issue of what's called Judicial Review and Judicial Supremacy and that is that the Supreme Court are the kings of America.
To the Corporate Personhood issue, starting in 1815, in the Darmouth case, the Supreme Court recognize that a corporation could have standing before the Supreme Court and established an idea that rather than the individuals who own the corporation coming before the court because they're persons, that the corporation itself could come before the court. That was the beginning of the precedent although that was very small.
Then in 1886, everybody points to this case, Santa Clara County Vs. Southern Pacific Railroad, five tax cases that went up before the Supreme Court from the 9 th circuit. Of course, Stephen Field was the Supreme Court Justice. Field was bought off by the railroads; they were promising him that they'd support him for president in the election of 1888 or 1892, if he would go their way. He was one of several actually on that Supreme Court who were being bribed by the railroads. The railroads tax cases basically said, "If we're paying tax A, five cents a mile in Santa Ana County and six cents a mile in Santa Clara County, that that's the same thing as saying that there is different rules for black people and white people under the 14 amendment of the Constitution, "All person are equal under the law, equal should -- equal protection under the law," and that's unequal protection and so we should have the rights." Of course, the 14 th Amendment starts right out by saying, "Persons born or naturalized in the United States are citizens thereof." So it's obviously talking about people and no person should be denied equal protection under the law. You just read the 14 th Amendment, there's no way any rational person could think it had to do with corporations.
In fact, in 1886 that's how the Court ruled; they ruled the corporations don't have personage rights. Or they failed to rule but they did. What they did is they ruled that the corporation, the railroad corporation lost because the California law trumped their argument and it didn't even need to address the constitutional issues. But the Clerk of the Court, John Chandler of An CrossDavis who was a former president of the Newberg and New York Railroad and was in on this scheme, he wrote a headnote which has no legal standing; it's a cleft note version of what the case it about, it's a summary, just for people to do quick and easy, you know, "I'm looking for a case about so and so," so you look through the headnotes. He wrote a headnote for the case that said that the case had decided that corporations are persons under the law and equal to 14 th Amendment protections.
So then 10, 15 years later, the Court started quoting that headnote and right up to the case of Boston Vs. Vallejo in the 1880s, the Court was quoting that headnote in the 1886 case, not the case itself because the case itself did not say that. So there's been a lot of us who for a lot of years have been saying, "This is a doctrine that was never genuinely established as a result of a debate before the Supreme Court but has taken on a life of its own."
Then in the 1970s a case called Buckley Vs. Vallejo, the court ruled that money is speech; this case it was individual money. Then in the 1980s the court rule that corporations couldn't be restrained from participating in politics. In Massachusetts there was a law that said that if a corporation was participating in political campaigning, they could only do it if it affected their business. The First National Bank arguable could have run ads saying, "There's a valid measure that says that we can't charge more thank 9 percent interest, please vote against it." They could have done that but they couldn't run an ad saying, "Let's make abortion illegal," because that's got nothing to do with banking. In fact, the First National Bank was funding some rather regular initiatives that had nothing to do with banking. So Mr. Vallejo or actually Mr. Buckley, who was the attorney general of Massachusetts, sued them. It went to the Supreme Court, Buckley -- excuse me, First National Bank Vs Bellotti; his name is Bellotti.
Rob: How do you spell that?
Thom: I think it's B-E-L-L-O-T-T-I. Don't hold me to it. Close to it. I'm pretty sure -- my recollection is it was Frank Bellotti but it's been 12 years since I wrote the book so. The First National Bank Vs Bellotti, and that case, if you're look up that case, Rob, I strongly recommend that you read Rehnquist dissent. Rehnquist was actually opposed to that. In that case the court rule that a corporate can participate in the political arena even on things that don't affect the corporation. In other words, they're a player. So those two cases, Buckley Vs. Vallejo in the 70s, First National Bank Vs Bellotti in the 1980s, set the stage for Citizens United in 2010 and in the dissent, Rehnquist says, he thought corporation should have that kind of power and that dissent, of course he's been replaced by John Roberts who's a corporate lawyer, and who brought us Citizens United. But in the dissent in First National Bank, Rehnquist, this doctrine of personhood and this isn't a quote this is a paraphrase but this doctrine of Corporate Personhood came before the Santa Clara County Vs. South Pacific Railroad and was decided in the affirmative, decided on behalf of the corporations without benefit of public debate or dissent and in my opinion, was wrongly decided.
Well the fact was never decided by the Supreme Court. So the Chief Justice of the United States Supreme Court was mistaken as is pretty much everybody else, these text books and everything. No law and you could just go back and read the case which is what I did. I was trying to the entire book from original source material which is how I discovered that everybody had it wrong. So anyhow, that's where we're at now. What the court has ruled now is that corporations are people and that money equals speech and because the court has ruled this, because of these twin doctrines that are some of the other evils of Judicial Review and Judicial Supremacy, of course the court has ruled this, it supersedes the law of the land.
Now that was not the intent of the founders, that the court would have that kind of power; that was a part the court took onto itself and it threw it in a case called Marbury Vs Madison. But because the court has ruled that that's the law and so the only way to get around that is to pass constitutional amendment to undo what the court has done. Just like they had to pass the 13 th , 14 th and 15 th Amendments to undo Dred Scott or at least much of Dred Scott, we need a constitutional amendment.
Now if we pass a constitutional amendment -- now let me just back up a little bit if I may. In addition, claiming the rights of free speech, corporations are claiming other rights under the Bill of Rights. That's the 1 st Amendment, Right of Free Speech. They're also claiming the 4 th Amendment, Right of Privacy. They're also claiming the 5 th Amendment, Right to be Silent, to not incriminate themselves. This is why the tobacco companies hid their knowledge of the fact that their product was toxic and how the asbestos companies hid their knowledge for years and years, by hiding under the 5 th Amendment. Then the most egregious, in my opinion, is they're using 14 th Amendment and this is when a big company comes into town, whether it's building a waste incinerator or 10,000 hog farm where a giant retailer, the Walmarts of the world, come into town and say, "We're going to put a business here," and the local community says, "No, you're not," and they say, "You can't keep us out, that's discrimination under the 14 th Amendment." You can't; if you're going to allow any corporation to operate here, you have to allow all corporations to operate here otherwise you're discriminating against us.
So corporations are claiming many different pieces of the Bill of Rights as theirs, as persons and that's as a big a problem frankly as is the fact that they can screw with our elections. So I think that the people like Dylan Ratigan and Laurence Lessig, they're doing a great job and they've identified a real problem and that is that money in politics has turned our political system from a democracy into kleptocracy or corporatocracy. That's true, but as long as those corporations have powers under the Bill of Rights, you could take away their free speech power, their money power, and they'll figure out another way to do it. You need to strip them of all their constitutional powers which means we need your constitutional amendment that says, "Corporations are not people and money is not speech." The corporations are not people part would mean that they would no longer use the 1 st amendment to influence politics but they could also no longer use the 4 th and 5 th Amendments to hide their crimes and they could no longer use the 14 th amendment to force themselves on communities. The money is not speech part would allow Congress to pass laws like McCain Find Gold that says that whether it's a corporation or it's a billionaire, the Koch brothers, for that matter, the most that you could spend on a political campaign is a certain amount. In the case of McCain Feingold it was twenty-two hundred dollars and that levels the playing field. That was of course blown up by Citizens United. So I hope that wasn't too long an answer to a short question.
Rob: No, it's raised other questions though. First Marbury Vs. Madison, what's that?
Thom: Well the constitution, if you read Article 3 of the constitution which is the article that defines, that creates the judiciary. Section 2 of Article 3 creates the Supreme Court and it says that, "The Supreme Court should be the final court of appeals on issues as to law on the fact." It defines about seven or eight responsibilities of the Supreme Court. It can make decisions about treaties, it can make decisions about disputes between the states; there's a bunch of specific things that only the Supreme Court can do. Then it says that the Supreme Court should be the final arbiter of all cases according to law of the fact. So if you were to sue me for whatever, bumping into your car and banging the fender and I sued you back and we just had a dispute in court and it went up through the courts, eventually it has to end some place. Somebody has to be the final court. It says, "No, Rob owes Thom," or "No, Thom owes Rob." That is the job that is describe for the Supreme Court in Article 3 Section 2 and you can read it yourself.
Furthermore, it says that the Supreme Court shall be subject to regulations defined by Congress. So this is why again Federals No. 78, 79 and 80, Alexander Hamilton wrote that the Supreme Court is the weakest of the three branches of government, is the most least likely to do harm to the United States, that is has no enforcement mechanism and in fact, Andrew Jackson I believe it was, might have been Zachary Taylor, I mix them up but I'm pretty sure it's Andrew Jackson -- ignored Supreme Court decisions about, I think it was the Second National Bank, just ignored it. [inaudible] and that was Hamilton pointed out in Federal No. 80.
So when they were putting together the constitution, the idea was the Supreme Court would basically just be the final court of appeals plus it would adjudicate disputes between the states and that was it. If Congress passed a law that was unconstitutional, the remedy for that would be that the President would veto and if the President failed to veto, if the President signed it, the remedy for that would be that the people would be sufficient horrified by it that they would throw the bums out and replace them with people who would change the law. In other words, the people would be the arbiters of what was and wasn't constitutional.