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.
There is nothing in the constitution that gives the Supreme Court the right to overturn a law, to declare the law unconstitutional. That power is explicitly not given to them in the constitution, it was part of the debates in the constitutional convention which you can read, James Madison kept the notes, it is explicitly laid out in the Federal's papers, that the Supreme Court does not and shall not have that power.
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