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Allan Powell: When giants collide

February 15, 2013|By ALLAN POWELL

Many of us are familiar with Jeffrey Toobin, a senior legal analyst for CNN who frequently interprets legal events. His sixth book, “The Oath: The Obama White House and the Supreme Court,” is further evidence of his skills as an analyst and writer. His mastery of the legal relationship between two giants — the chief executive and the chief justice — is a very good read. While only four years of interaction between two branches of government (complicated by differences with the third branch and public opinion) are the focus of this book, there is much relevant history and biography to enrich Toobin’s work.

His expansive coverage of legal cases and their consequences makes it appropriate to consider only two major issues. First will be the problematic case of Citizens United, which will almost certainly provoke an attempt for a constitutional amendment. Toobin devoted five chapters to this decision. The second topic is another look at a bit of legal philosophy adopted by many Republicans, which they call “originalism.” This idea and the opposing point of view are shown in juxtaposition throughout this book.

Citizens United is the result of a sequence of acts going back 144 years to a clause in the 14th Amendment that required the federal government not to “deny any person within its jurisdiction the equal protection of the laws.” There was general agreement at that time that the focus was on a real “person” — a slave. In 1886, the meaning of “person” took on a different meaning in a case in which a corporation was endowed with personhood. It is a bizarre fact of history that “personhood,” now regarded as a precedent, was only a head note in that case and was never part of that opinion.

It then became necessary to determine if corporations (as persons) were protected under the rights guaranteed by the First Amendment, more specifically, rights of free speech under that amendment. Did the regulations of the McCain-Feingold law, which set limitations on election finances such as prohibiting ads after 30 days before a primary or caucuses within 60 days of a general election, deprive persons (Citizens United, a corporation) of free speech? The Supreme Court conservative majority, by a 5-4 decision, agreed with the plaintiff.

The reaction to this decision was immediate and clear. President Obama charged that “… the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”

There was considerable public reaction to the stretch of “personhood” to corporations and the claim that money spent on ads in a political campaign was a form of speech and could not be regulated. There was also some resentment that the conservative justices who professed to be staunch believers in precedent had voided decades of precedent in the reform of election finance.

The ongoing and highly charged debate between the two major parties over the proper way to apply the Constitution and its demands in governance was never clearer than during the Obama-Roberts years. In its most elementary form, the clash was over whether the document is a fixed and unchanging source of guidance or a “living” (read flexible) document that can be adopted to changing needs and times.

Like the two parties, these two leaders of two significant branches of government were strong antagonists for their perspective. Justice Scalia bluntly asserted that he preferred a “dead” Constitution whose meaning was set for all times at the moment of its creation. U.S. Sen. John Cornyn declared that “a living Constitution which has no fixed meaning” will “give a lot of people heartburn.” This conflict between fixity and flexibility appears to be irresolvable.

Having been exposed to this ideological entanglement for a long time, it is only honest to admit an inability to relate to the conservative stance. Many of the founders owned slaves and would not have accepted the original document if it had not included the three clauses that protected slavery. In addition, a significant portion of the original document was made up of compromises that were not really pleasing to them but that they were forced to accept as a condition for ratification.

What made these two leaders giants was their willingness to compromise on a truly historical piece of legislation — the Affordable Care Act. Who could ever imagine that one as conservative as Roberts would cave in and face the insults of his friends and colleagues? Nevertheless, these giants made history.

Allan Powell is a professor emeritus of philosophy at Hagerstown Community College.





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