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LETTER TO MEMBERS OF THE US SENATE JUDICIARY COMMITTEE
Dear US Senate Judiciary Committee Members,
The Program on Corporations, Law and Democracy (POCLAD) calls on you to complete your questioning of US Supreme Court nominee Samuel Alito. Judge Alito's position on the larger issue of this nation's democracy, trampled by the rights and powers of corporations to govern, was left untouched and unexplored following last week's Senate confirmation hearings.
The vast majority of non-criminal cases to be brought before the nine robed ones of the Supreme Court in the next few years will relate to matters of corporate "rights," protections, and dominance and their impact on the rights of human beings in this so-called democracy. How strange, therefore, that among the many questions posed to nominee Alito, not a single one addressed the doctrines of corporate autonomy and authority that insulate these collections of capital and property from control by the people and their legislatures -- which used to exist at one time in this nation.
Have the judiciary's efforts been so successful over the last 200 years to find corporations within the US Constitution and bestow constitutional "rights" upon them that current lawmakers fail even to question this democratically illegitimate reality? Indeed, for two centuries Supreme Court justices, the closest institution we have to Kings and Queens, have been at the center of affirming and expanding corporate rule and placing corporations well beyond the authority of the people. We hope you do not concur with this history and its consequences.
As the following questions were not asked of Judge Alito during his Senate hearings, it is absolutely necessary now to determine his response to them in writing. Only after Judge Alito responds to these concerns and his answers are promptly made available to the general public and to all U.S. Senators should voting on his confirmation occur.
The appointment for life of a person who will assume a position of vast and seemingly ever growing power in our society demands an exhaustive review of every issue area that he/she is likely to address on the high court. Corporate constitutional rights and their impact on our rights as self-governing human beings certainly qualifies as one such issue area.
This decision is of the utmost importance to the fate of the country.
For the Program on Corporations, Law and Democracy
First a bit of background:
In a 1978 case, First National Bank of Boston v. Bellotti, the Supreme Court decided, 5 to 4, that business corporations — just as flesh and blood persons like you and me — have a First Amendment right to spend their money to influence elections. Chief Justice William H. Rehnquist dissented. "It might reasonably be concluded," he wrote, "that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere." The late Chief Justice went on to write:
"Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist."
• Do you believe that corporate money in our elections poses "special dangers in the political sphere"?
• Do you believe "that liberties of political expression" are necessary "to effectuate the purposes for which States permit commercial corporations to exist"?"
• Do you believe that money is speech? Or is it property?
In 1886, only eighteen years after the people ratified the Fourteenth Amendment, the Supreme Court had before it Santa Clara County v. Southern Pacific Railroad. The issue was whether the Amendment's guarantee of equal protection barred California from taxing property owned by a corporation differently from property owned by a human being. Chief Justice Morrison Waite disposed of it with a bolt-from-the-blue pronouncement: "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny any person the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."
How would you characterize the Court's refusal to hear argument in a momentous case deciding it?
• Judge Alito, was the "person" whose basic rights the framers and the people sought to protect through the 14th amendment to the Constitution the newly freed slave?
• Was the "person" a corporation?
• Is a corporation a person "born or naturalized in the United States"?
• In proclaiming a paper entity to be a person, Judge Alito, was the court faithful to the intent of the framers of the Amendment and to the intent of the people who ratified it?
• Judge Alito, how would you characterize the court's refusal to hear argument in a momentous case before deciding it?
• Would you describe the court's decision in Santa Clara County as conservative? As radical? As open minded?
• Would you agree that the Court that decided Santa Clara in 1886 failed to meet the standard of judicial conduct that was met by the Court in 1973, when it decided Roe v. Wade only after being fully briefed, hearing oral argument, and deliberating at length?
• You have expressed profound admiration for Judge Robert H. Bork, calling him “one of the outstanding nominees of the 20th Century.” As you know, he famously denounced Roe as "a wholly unjustified usurpation of state legislative authority." Without regard as to whether Roe was rightly or wrongly decided, was Santa Clara "a wholly unjustified usurpation of state legislative authority?"
• Again without regard as to whether Roe was rightly or wrongly decided, how does it strike you that the Court has declared a corporation -- a paper entity that is neither born nor naturalized – to be a person but has declared a fetus not to be a person?
Note: The above questions were drawn from an article prepared by Morton Mintz who covered the Supreme Court for the Washington Post for four years and is a former chair of the Fund for Investigative Journalism.
POCLAD researches corporate, legal and movement histories and works with activist organizations to develop strategies that assert human rights over property interests.
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