Relevant and even prescient commentary on news, politics and the economy.

Okay, so today at a rally in suburban Detroit…

“By the way, I’m spending a lot of money on my campaign. And why isn’t she spending some money on hers? I’m spending a hundred million dollars,” Trump said, after criticizing Clinton for accepting donations from Wall Street bankers and special interest groups. “… I think I’ll be over a hundred million dollars.”

Trump tells Obama not to pardon Clinton, even though she hasn’t been charged or convicted of anything, Jenna Johnson, Washington Post, today

Look, folks.  It’s way, way, way past time that Clinton shout from the rooftops that there are three billionaires who are writing extremely large checks to Trump’s super PAC, two—father-daughter hedge-fund duo Rebekah and Robert Mercer, and oil and gas billionaire Harold Hamm—who are determining Trump’s fiscal and regulatory policy proposals and prospective court and agency-head appointees.

No. One. Knows. This.

She also needs to say, and say again, and again, that the aggregate amounts of “Citizens United money” that will have gone respectively to support her, and Trump’s, campaigns by November 8 is far less important than the amounts one or two or three billionaires are donating to each campaign, and the percentages of the total donations to the respective campaign that these billionaires’ donations comprise.

Earlier today, in the Comments thread to my post from earlier this week titled “What Clinton and her surrogates need to get across to millennials, racial minorities and union members,” I exchanged these comments with reader Eric377:

Eric377 / October 1, 2016 8:57 am

Well it seems to me that Trump got and used a lot less “Citizens United” type money than his Republican opponents and Clinton. The deep suspicion – conviction for many, really – is that voting for Clinton is voting to leave the current elite structure completely unchanged.

Me / October 1, 2016 9:57 am

Here’s the problem with looking only at the aggregate amount each candidate has received in Citizens United money: As I’ve written in AB posts here seemingly ad nauseam since early Aug. when I learned of it, sometime late in the primary season two hedge fund father-daughter billionaires, Robert and Rebekah Mercer, who had been funding Cruz, began instead funding Trump to the tune of many millions of dollars. They live in the Hamptons and began meeting with him and effectively controlling his fiscal and regulatory policy proposals as well as his selections of nominees for the Supreme Court and for agency chiefs. These people are the main funders of Breitbart–thus, Steve Bannon and Kellyanne Conway–and of the Heritage Foundation, thus Stephen Moore and other ostensible economics experts.

The other billionaire who’s been funding Trump–some oil-and-gas billionaire named Harold Hamm–to the tune of many, many millions of dollars is–surprise–recommending appointments as Interior and EPA chiefs.

If Clinton actually wants to energize millennial progressives, all she has to do, I think, is tell them this. She doesn’t–for fear of, y’know, alienating all those moderate suburban Republicans who would be thrilled to see the oil-and-gas industry control Interior and the EPA, and extreme rightwing hedge fund billionaires and the Heritage Foundation make fiscal and regulatory policy.

Meanwhile, today CNN Politics is reporting, in a story reported by Theodore Schleiffer titled “Trump finally hits the big-money jackpot,” that Trump is now also funded by Republican billionaires Sheldon and Marion Trump and the Ricketts family—two of the uber-funders of far-right Republican campaigns, and of Republican candidates who are far-right mainly because Adelson, the Rickets and the Kochs are. About the Adelsons, Schleiffer writes:

Despite only publicly committed $5 million to what is likely to be the de facto Trump super PAC, Sheldon and Miriam Adelson are pledging at least $25 million to pro-Trump presidential efforts, according to multiple people briefed on their donations. That sum includes giving to nonprofit group that will never be required to disclose his donations.

As for the Ricketts, their wealth comes from TD Ameritrade, which the current Mr. Ricketts, Thomas, joined at age 30.  His father founded the company, but it was entirely a merit hire.  In any event, Trump apparently doesn’t know that it is a financial institution.  (It’s a large one, Donald.)

Which brings me to a post that was in follow-up to my earlier post, in which I mentioned that there really, truly, honestly is a difference between Supreme Court Justice Sonia Sotomayor and Supreme Court Justice Samuel Alito.

Anyone know who Gary Johnson would name to the Supreme Court?  It doesn’t matter, cuz he won’t be naming anyone to the Court.  Trump or Clinton will.

So, so much about Clinton’s campaign has just completely missed the mood of a huge swath of voters in this election cycle.  Not least is that moderate Republican suburbanites—to whom she’s directed her campaign almost exclusively—would be less likely rather than more likely to vote for Trump if they knew that he indeed has billionaire puppeteers, who they are, what they want, and the extraordinary influence they’re having on his policy proposals and will have on his court and agency-head appointments.   It’s way, way, wayyy past time for Clinton to tell the public about this.

Also at that rally today, Trump suggested that he be indicted for his serial criminal fraud, bribery, and tax and other laws related to his charity.  Wire fraud, for sure.  Johnson reports in that article:

NOVI, Mich. — Donald Trump called on President Obama on Friday to refuse to pardon Hillary Clinton and her associates, even though they have not been charged with any crimes, let alone convicted of any crimes.

“Mr. President, will you pledge not to issue a pardon to Hillary Clinton and her co-conspirators for their many crimes against our country and against society itself?” Trump said to a cheering audience in this Detroit suburb on Friday evening.

He added: “No one is above the law.”

One of the very many thoroughly disorienting characteristics of Trump’s in this campaign is his routine tactic of accusing others of what he is accused, with supporting evidence, of doing.  I do think, though, that on this he’s playing with fire.  That quote of his will support demands for criminal investigations and civil fines.

Although, I suppose he could assert the defense that he is no one, and therefore is above the law.

I’m guessing that the starkness of Trump’s manic conduct in the last two days—and, really, you don’t need any formal knowledge about severe bipolar illness to recognize that, apart from other obvious mental illness, he is severely manic—will, finally, finish off this candidacy.  But the answer to why Clinton isn’t far ahead in the polls is not just the malpractice nature of so much high-profile journalistic coverage of these two candidates—the obscenely overblown emails-and-related-matters obsession, to cited the most obvious news media indulgence.  It’s also that Clinton has run as an outdated moderate Republican, almost throughout her campaign dating back to its inception.

There’s really no time like the present for her to start campaigning like it’s 2016.  Since, after all, that’s what it is.

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What HE said! (And what I said. Yesterday.)

Any American under the age of 50 has no memory of living with a liberal Supreme Court. That could change soon. Were a Democratic appointee to fill the current opening, laws could change on voting rights, corporate power, campaign finance, criminal justice and many other issues.

“For the first time in decades,” Jeffrey Toobin writes in the current New Yorker, “there is now a realistic chance that the Supreme Court will become an engine of progressive change rather than an obstacle to it.”

A Liberal Supreme Court, David Leonhardt, NYT, today

Time to campaign on this, with specifics, Hillary Clinton.  And time for your surrogates to do so.  As I said yesterday.

Please instruct voters on the difference between Sonia Sotomayor and Samuel Alito.  There is a difference.  A big one.  The Mercers know this.  Please ensure that voters and potential voters know this, too.

Thank you.

 

____

ADDENDUM: Anyone who’s actually interested in this subject might want to read the Comments thread to my post from yesterday, which I linked to above.

Added 9/30 at 1:39 p.m.

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Clarence Thomas confirms his belief that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms. And that that right is the only one, more generally, that we treat so cavalierly. [His words. Seriously.]

The Supreme Court said Monday that people convicted of domestic abuse can be prevented from owning a gun, in a case that prompted the first questions from Justice Clarence Thomas in 10 years.

In a 6-to-2 decision, the court said Congress had intended to keep firearms out of the hands of domestic abusers.

The question for the court was whether the gun ban applies to those convicted under state law of misdemeanor domestic abuse and specifically whether assault convictions for “reckless” conduct could trigger the prohibition. …

The case decided on Monday was brought by two men, including Stephen Voisine, who was separately being prosecuted for killing a bald eagle. He had a previous conviction for a misdemeanor assault of a woman with whom he had a relationship, and federal prosecutors said that meant he should be banned from owning firearms.

The court rejected that argument, finding Monday that “a person who assaults another recklessly uses force no less than one who carries out that same action knowingly or intentionally,” according to the majority opinion by Justice Elena Kagan. She was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Samuel A. Alito Jr.

To accept the interpretation of the petitioners, the majority said, would risk striking down similar laws in 34 states and the District and allowing “domestic abusers of all mental states to evade” the firearms ban. …

In his dissent Monday, Thomas said the firearms ban should apply only to “intentional acts designed to cause harm” — not to those based on “mere recklessness,” which do not necessarily involve the use of physical force.

“The majority fails to explain why mere recklessness in creating force — as opposed to recklessness in causing harm with intentional force — is sufficient,” he wrote.

Thomas was joined in part in his dissent by Justice Sonia Sotomayor.

Separately, he also objected to the imposition of a lifetime firearms ban based on a misdemeanor assault conviction because of its implications for a person’s Second Amendment rights.

“This decision leaves the right to keep and bear arms up to the discretion of federal, state and local prosecutors,” Thomas wrote. “We treat no other constitutional right so cavalierly.”

Supreme Court: Domestic abusers can be banned from owning firearms, Ann E. Marimow, Washington Post, today

Actually, what Thomas meant by that last sentence is that we treat no other constitutional right so cavalierly that Thomas and his Federalist Society colleagues care about.  Ones that don’t concern gun ownership, or the unfettered freedom to buy elected officials, or to adopt a local or state, or the federal, government as your Christian pulpit.

Y’know; the constitutional rights that matter.  The ones that garner pro bono defense at the Court by some rightwing legal think tank whose name on a certiorari petition means the petition will actually be read by a justice or two, or three, or four.

And the ones whose certiorari petitioner can foot the $1,000 hourly billing fee totaling well into the six figures, to have the name of one of the tiny handful of Washington, D.C.-based Supreme Court “regulars’” name and law firm on the petition cover—the only other way to obtain actual review of your petition by an actual justice if you’re not represented in that petition by a non-government attorney (i.e., a state attorney general).  The petitioners who after paying those attorneys’ fees still have sufficient discretionary income to pay the $8,000 cost for the printing of the certiorari petition as per the extremely weird printing requirements that only three printing companies in the country can do.

Okay, well since the “regulars” get steep discounts at those printing companies, their clients will need considerably less than that full-freight price.  Which must be nice.

In any event, precious few others need apply.  Although nearly 10,000 others a year do.

Thomas’s veritable stock-in-trade is declaring something as fact that is clearly and facially false, often bizarre, sometimes downright comical.  He did that recently in what, happily, was, like this one, a dissent.  Thomas claims this time around that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms.  And that that right is the only one, more generally, that we treat so cavalierly.

Well, maybe.  Then again, it could be that that is just the only one Thomas knows of, since the Court itself has aggressively blocked federal-court review of violations of most constitutional rights involving state and local prosecutors, state courts, and state criminal statutes in the name of state-courts’ rights to violate individuals’ constitutional rights, and since gun-ownership rights are pretty much the only rights that are at issue solely in non-white-collar-crime appeals.  And therefore the only criminal-law-related constitutional rights raised in certiorari petitions that he reads.

Which of course explains this one justice’s belief that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms.  And that that right is the only one, more generally, that we treat so cavalierly.

There are many thousands of Americans who could disabuse him of that belief.  Some of them have even filed certiorari petitions.

____

ADDENDUM: Reader MIJ and I had the following exchange in the Comments thread:

MIJ

June 27, 2016 11:17 pm

Ok, I’m intrigued – not by Thomas who is predictably irrational, but by the way this vote went.
It appears Sotomayor joined the dissent “in part” while Alito abandoned his partner in the summer stock version of “Dumb and Dumber”.

There has to be a story here.

Me

June 28, 2016 10:50 am

Hi, Mark. This actually doesn’t surprise me. Thomas’s dissent is in three parts. The first two parts attack the majority’s claim that recklessness amounts to the “use of physical force” and “violence.” Those wo parts argue, in my opinion correctly, btw, that the terms “use of physical force” and “violence” denote only intentional conduct and therefore preclude recklessness. Thomas notes that even recklessness that causes a traffic accident is not considered “violence.”

The third part, the part that Sotomayer did not join, sings the praises of an absolutist Second Amendment.

The opinion and dissent are here.   (PDF required.)

Alito always—always—sides against the criminal defendant, in criminal cases and habeas cases, with the single exception of cases in which a key aspect (either the conduct of the defendant or the conduct of law enforcement) is something that he can imagine himself being entangled in. The only notable examples are Fourth Amendment cases in which Alito can imagine himself being victimized by an anything-goes nullification of the warrantless-search-and-seizure proscription.

Three or four years ago, Alito wrote an awesome opinion barring law enforcement from sticking a GPS tracker under your car. Alito of course parks his car in his home’s garage and in the Supreme Court’s employee garage, but presumably also, on occasion, in, say, a medical office parking lot or a shopping mall or restaurant one. Scalia, by contrast, apparently didn’t worry about such things; he dissented.

Then, two weeks ago, Alito joined the majority—Thomas dissented—in barring compulsory, warrantless blood tests for suspicion of DUI.  Slate’s Mark Joseph Stern wrote a terrific article there last week about the whiplash Fourth Amendment-cases effect, caused sometimes, as happened last week, when two Fourth Amendment opinions are issued within days of each other, this time first an appalling one, then the DUI one.  It’s here.

As for Sotomayor dissenting, she’s simply not willing to treat anything related to a narrow definition of domestic violence as per se passing muster simply because domestic violence issues are all the rage these days among progressives. Sotomayor, to her credit, in my opinion, recognizes that once you treat recklessness as intent and violence for purposes of domestic violence you probably will be asked to do so for other things as well. There are differences in law, normally, between recklessness and intent (e.g., manslaughter vs. murder), and it’s dangerous to start conflating the two.

Truth be told, I haven’t read the majority’s opinion, and I’m not sure how domestic violence even can be charged, absent intent. But apparently in this case, under a state statute, it was.

Added 6/28 at 11:35 a.m. 

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How I answered a survey from the Progressive Change Campaign Committee about the Merrick Garland nomination

I received an email this morning from the Progressive Change Campaign Committee, boldprogressives.org, asking that I complete a survey on the Garland nomination.  The email began with this question: What do you think about Merrick Garland and the Supreme Court vacancy now?  It continued:

The president nominated Merrick Garland to fill the vacancy on the Supreme Court.

After a day of media reporting on his record, and Senate Democrats calling for the process to move forward, we want to know how you feel about this fight.

Your answers below will help shape the PCCC’s activism on this.

Here are the survey questions and my answers:

QUESTION: Overall, how do you feel about President Obama’s decision to nominate Merrick Garland?

1) Very Enthusiastic   Somewhat Enthusiastic   2) Pretty underwhelmed   3) I do not like this decision   4) I don’t know

ANSWER: I do not like this decision

 

QUESTION: How enthusiastic are you to keep taking action against Senate Republicans to allow a hearing and fair process to move forward for Merrick Garland?

1) Very psyched. Ready to fight those Republicans!   2) Somewhat enthused. But we all need to take some action.   3) I still need to learn more before taking any action.   4) I’m not feeling it at all.

ANSWER: I still need to learn more before taking any action.

QUESTION: Wednesday, the PCCC launched a new petition saying this:

Petition: Now that the President followed the Constitution and nominated a Supreme Court Justice, Senate Republicans should do their job and allow a fair hearing and process to move forward. The Court needs someone who understands the real world impact of the Court’s decisions on hardworking Americans. 

Should we add your name to this petition?

1) Yes, add me as a signer.   2) No, do not add me as a signer.

ANSWER: No, do not add me as a signer.

QUESTION:  What do you like most about Merrick Garland being the nominee?

ANSWER: That he once dissented in a case in which his two panel colleagues (one of them John Roberts) ruled against a whistleblower and the federal government (who were on the same side in the case). Although the narrow issue was whether or not the False Claims Act applies to Amtrak contractors, Garland’s dissent did indicate strong support for the role of whistleblowers.  He dissented similarly in a free-press case involving disclosure of the names of whistleblowers (in a case in which the criminal defendant requesting the disclosure was actually a sympathetic figure and was innocent).

QUESTION: What do you like least about Merrick Garland being the nominee?

That his near-religious belief in the sanctity of precedent may mean that the precedents set by the Conservative Legal Movement justices, including those that overturned earlier precedents will remain law until one of the four conservative justices is replaced by a Dem president.  In other words, that the panoply of dramatic changes in the law amounting to a Conservative Legal Movement checklist with, by now, lots of checks indicating completion—Sherman’s-march-through-Georgia- style—will remain law for at least the next several years.  Citizens United and the Voting Rights Act opinions are just two examples.

QUESTION: What do you most still want to learn about Merrick Garland?

ANSWER: Because he is a judge on the D.C. Circuit rather than on one of the other regional circuit courts, he has never ruled in a habeas-petition case challenging the constitutionality of a state-court criminal conviction, and therefore on the threshold issue of federal-court jurisdiction in such cases. In other words: on the right of state courts to violate the constitutional rights of individuals.  I also would like to know how broadly he views the Supreme Court-fabricated “qualified immunity” of police officers and prosecutors who are sued for, say, withholding exculpatory evidence or just plain fabricating evidence.

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Liberals, and especially African-American liberals, should not encourage Senate confirmation of Garland to the Supreme Court

Repubs apparently now think they can have the last laugh.  Senate Repubs reportedly now are considering whether to confirm during the lame duck session after the election if Clinton wins.  But of course, then Garland would be expected to withdraw if Obama does not withdraw his name saying that Clinton and the new (Democratic-controlled) Senate should handle it.

— Me, here, yesterday

Today, Greg Sargent writes at length about that possibility:

[T]here is a scenario worth entertaining here in which Obama has the last laugh — and the GOP posture ends up leaving Republicans with only downsides, and zero upsides.

That scenario goes like this: If Republicans don’t give Garland any hearing, and a Democrat (most likely Hillary Clinton) wins the presidential election, Republicans could then move to consider him in the lame duck session, to prevent Clinton from picking a more liberal nominee. But at that point, Obama could withdraw his nominee, to allow his successor to pick the next justice, instead.

The Republican argument for refusing to consider Garland (or anyone Obama nominates) is that the selection of the next justice is so hugely consequential that only the next president should make that choice, so that the American people have a say in it, by choosing who that president will be. Lurking behind this rationale is the understandable fear that if the court is tilted in a more liberal direction, it could deal a serious blow to a number of conservative causes — so better to roll the dice by holding out and hoping a Republican is elected president.

But with Donald Trump tightening his grip on the nomination, and the more electable “establishment” GOP candidates falling like dominoes, the prospect of Clinton winning the presidency is looking very real, and may continue to look even more likely as the campaign progresses. Republicans themselves fear that a Trump nomination could cost them the Senate, too. If all of that happens, Republicans might see no choice but to try to confirm Garland in the lame duck, before Clinton takes office and picks a nominee, possibly with a Dem-controlled Senate behind her. Some Republicans are already floating this idea.

But Obama could decline to play along with that scenario.

His post is titled “How Obama could get last laugh in Supreme Court fight.”  He posted this update:

It occurs to me that I probably should have argued that in this scenario, Democrats and liberals would be getting the last laugh, as opposed to Obama getting it. After all, Obama by all indications does want Garland confirmed; he’d merely be deferring to Hillary after the election. And liberal Dems (some of whom are already disappointed by the Garland pick) would be getting their preferred outcome. I’m not predicting this will happen, just floating it as an interesting possibility. You may also see some liberal pressure on Obama to do this, if Democrats secure a big victory in November (though whether Obama would bow to it is anybody’s guess), which would also be an interesting scenario to see play out.

But liberals should not push this man’s confirmation, and certainly African-Americans should not.  To quote Politico’s Josh Gerstein, “A former prosecutor, Garland often split with his liberal colleagues on criminal justice issues.”

Garland would not bring the court leftward in the absolutely critical realm of criminal justice issues, including jurisdiction to challenge via federal habeas corpus petition anything state-court criminal convictions or sentences on grounds that some aspect that lead to the result was unconstitutional–including police or prosecutorial misconduct and ineffective assistance of counsel, and including immunity of cops and prosecutors from civil liability in civil rights lawsuits.

That, in fact, reportedly was a big plus for him in Obama’s opinion in 2009 and 2010 when he was being considered to replace Souter and Stevens–even though the Dems controlled the Senate.

Thomas Friedman, of all people, had a terrific line about Obama in his NYT column a day or two ago, something like, “Let’s face it; you wouldn’t want President Obama to be the one selling your house for you.” The column, which really was quite good, was about the TPP, and what Clinton should say about it now. But that comment about Obama was hilarious, and absolutely spot-on.

I’ve thought for about seven years now that Obama’s primary concern is to be considered a moderate by The People Who Matter. I don’t think he cares all that much about anything else, really.

Or maybe he thought in 2009 and 2010 and today that what the Supreme Court needs is a former prosecutor who will join with Samuel Alito in anything related to criminal law and law enforcement.

Garland is being hailed in some quarters as a brilliant legal mind, but I have yet to see an iota of evidence of it.  On a par with Samuel Alito, maybe? Or maybe just in comparison to Samuel Alito. And best as I can tell, not by all that much.

____

UPDATE: This article by Janell Ross on the Washington Post’s The Fix blog about both Obama and Garland is outstanding.  I disagree with her that the anger toward Obama among what she calls the far left (which as a Sanders supporter I guess I qualify as part of, right?) is misplaced, but I agree with her about pretty much everything else she says in the article.  It’s a terrific analysis of Obama’s presidency as well as of Garland’s career.

Added 3/17 at 4:40 p.m.

____

SECOND UPDATE: Just saw this article on Politico via Yahoo News, titled “Black lawmakers irked by Obama’s Supreme Court choice“. Their concerns are that Garland is a moderate rather than a progressive, and that Obama didn’t consult them before finalizing and announcing the selection.  Some of them also are angry that a member of a racial minority wasn’t selected.

Good for them.  I myself don’t care one whit about the nominee’s race, gender, family background, religion, ethnicity.  I care only about the person’s professional experience, views on legal issues I care about, and intellect, because that is what will determine how this person will effect the law. I can’t think of a clearer in-your-face affront to African Americans, at this particular moment, than the nomination of a pro-police, pro-prosecutor, anti-habeas corpus judge to be the swing justice on the Supreme Court for, very likely, the next several years.

I also have to say how very retro it is that Obama thinks the public is 1980s-’90s-era pro-police, pro-prosecutor. Then again, for some people–i.e., politicians–it will forever be the 1980s or ’90s.

Added 3/17 at 7:15 p.m.

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What I Want Bernie Sanders to Know Before Tuesday’s Debate

A few weeks ago Mike Huckabee made minor news by telling an interviewer that slavery has never been made unconstitutional.  Or, to be precise, he told radio interviewer Michael Medved that “the Dred Scott decision of 1857 still remains to this day the law of the land which says that black people aren’t fully human.”  He then asked, “Does anybody still follow the Dred Scott Supreme Court decision?”

That was a rhetorical question because no one follows the Dred Scott Supreme Court decision anymore.  No one has since December 18, 1865, when the Thirteenth Amendment was certified by the secretary of state as formally a part of the Constitution.  At least no one admits to following the Dred Scott Supreme Court decision anymore, and no one follows the part of it that treated slave ownership as a property right, since everyone but Huckabee knows about the Thirteenth Amendment.  It provides:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

But the Dred Scott opinion did not actually address the constitutionality of slavery; slavery clearly was constitutional then and Mr. Scott did not claim otherwise.  What Dred Scott addressed was whether under the Constitution, the right of states to trump the rights of individuals, including even the most basic human rights, extended beyond the borders of the states whose laws authorized the profound violations of human rights.  That is, whether the rights of those states to violate individuals’ human rights extended beyond those states’ borders and into other states.  The Supreme Court said it did.

And it is a fundamental tenet of the modern Conservative Legal Movement begun in the late 1970s, that has a stranglehold on the current Supreme Court and until recently thoroughly controlled the lower federal courts and continues to rage unabated in state courts, that despite the clear language and purposes of the two additional Reconstruction amendments, the Fourteenth and the Fifteenth, the essence of Dred Scott indeed remains the law of the land.  And just as in Dred Scott, it is given the name “Freedom”, its source of constitutional legitimacy nothing actually specified in the Constitution but instead the Constitution’s supposed “design”, which is federalism, the technical term for states’ rights.

The idea is that a separation of powers between types of governments means freedom. Balances between the powers of the federal government and state (and local) governments.  No checks, though; only balances.  Unless, of course, a state legislature enacts, say, a campaign-finance law, or a municipality a gun-restriction ordinance.

Trickle-down freedom, in other words.  Freedom derived by virtue of your state’s right not to be confined by federal constitutional rights that explicitly accrue directly to individuals.  Even though the Fourteenth Amendment begs to differ.

If you were a slave owner back before the Emancipation Proclamation, you were free to reclaim your escaped slave from a state that outlawed slavery, courtesy of your state’s freedom vis-à-vis the federal government.  And if you are a state or local judge, a state or local law enforcement officer, a state or local prison guard, you are unconstrained by that pesky Bill of Rights and that Fourteenth Amendment.  Those do limit state legislators’ and municipal lawmakers’ powers to, say, legislate campaign-finance laws and gun-ownership ordinances, but do not limit the brute power of government actors invested with actual and direct police powers over specific individuals.  It is only in the rarest of circumstances that individuals have freedoms derivative of their state’s rights, and therefore only in the rarest of circumstances does “Freedom” concern actual physical freedom.

It never concerns the right to be treated humanely when in the custody of the state.  Or the right to survive a traffic stop.  Or to not be incarcerated for days, weeks or months because you can’t afford to pay the hundreds or thousands of dollars in fines and fees whose purpose is to fund the municipality’s government, especially its law enforcement complex.  Or to be brutalized while in jail awaiting trial.

Then, freedom means state or local government’s freedom to violate individuals’ constitutional rights.  Federalism, in other words, defined by the Constitution’s design.

Dred Scott forever!

Most people who read about Huckabee’s pronouncement that Dred Scott remains the law of the land reacted as Medved did: with disbelief.  Me?  I said to myself, “Well, he’s in good company.  Or at least extremely powerful company.”

He is.

Five of the nine Supreme Court justices believe that Dred Scott accurately describes the Constitution’s design not only before ratification of the Fourteenth and Fifteenth amendments but after those amendments became a part of the Constitution.  The Fourteenth Amendment didn’t alter the Constitution’s design one whit, except when it can be invoked to advance an item on the Conservative Legal Movement agenda.  Uh-uh. No way, no how.  See?

John Cornyn, a high-ranking member of the Senate Judiciary Committee, agrees.  Late last fall,shortly after President Obama announced that his choice for Attorney General was Loretta Lynch, the U.S. Attorney for the federal judicial district in New York that includes Staten Island, Cornyn publicly licked his chops.  Lynch earlier had announced that her office was conducting an investigation into possible violations of federal criminal rights law by the police officer who killed Eric Garner, and the other officers who were present, as Garner was being arrested for selling single cigarettes in violation of state law.

This is a local matter, Cornyn said, and indicated that he planned to question Lynch about her use of her federal office to infringe upon the obvious constitutional right of state and local law enforcement—police, judges, prison guards (those directly employed by state and local governments and those employed by corporations under contract with state and local governments in exchange for massive political contributions)—to baldly violate individuals’ most basic civil and human rights.  But it turned out that large swaths of Republicans who are not members of a local Patrolmen’s Benevolent Society actually disagreed. Within 24 hours of Cornyn’s declaration, many of them, including, if I recall correctly, Senate Judiciary Chairman Charles Grassley, and in any event informal Internet commenters and a couple of formal ones, indicated support for the federal probe into the death of Eric Garner.  Cornyn did not question Lych hostilely about infringements of state and local government rights in the federal Garner probe; at least nothing I read about. Neither did any other senator.

Cool!

So there is a limit to the Mad Hatter definition of freedom, even in the opinion of most Republicans.  Who knew?  (Not Cornyn.)

The Supreme Court, beginning in the late 1970s, has erected a bizarre series of ostensible jurisdictional and quasi-jurisdictional, but fabricated-out-of-whole-cloth, bars to access to federal court in order to challenge as unconstitutional actions by, and occurrences in, state and local court by judges in criminal and life-altering civil matters and by courts, prosecutors, law enforcement officers in criminal and quasi-criminal matters.

Such as minor traffic violations. Such as inability to pay child-support payments in the amounts ordered.  Such as adult-guardianships and conservatorships and child-visitation. And letting your nine-year-old spent time in a nearby park alone.  Even profoundly unconstitutional actions.

These court-fabricated jurisdictional and quasi-jurisdictional bars to access to federal court in order to enforce provisions of the Constitution itself are odd invocations of the Constitution’s design, since the Constitution’s actual design explicitly assigns to Congress, not the judicial branch, the obligation and sole authority to write the parameters of federal-court jurisdiction, and Congress has done so, or rather attempted to do so, in, for example, this statute.  And this one.

Under the Constitution’s actual—actually explicit—design, the sole role of the judiciary branch in determining federal-court jurisdiction is to consider whether a federal-court jurisdictional statute is constitutional, and whether Congress’s failure to provide for federal-court jurisdiction regarding circumstances is itself unconstitutional.  This is of particular importance concerning an infamous jurisdictional statute enacted in 1996 and signed by President Clinton because he feared that Bob Dole would run Willie Horton ads against him in the upcoming campaign if he did not.  The Supreme Court in the last decade—i.e., the Roberts Court era—has (very) effectively rewritten the statute to categorically eliminate the right of habeas corpus in state criminal matters.  Completely.  Ever.

This is a completely unabashed obsession of certain members of the current Court—an unremitting juggernaut lead originally by Anthony Kennedy, in the name of Freedom, and lately by Samuel Alito, in the name of Fascism.  Freedom and Fascism are converging these days.

States’ rights, according to the current Supreme Court, as I’ve said many times here at AB, mainly state-courts’ rights to violate individuals’ rights.  State legislative and executive branches don’t have that right.  The Supreme Court justices never explain why this is so, but as I’ve said before, I think it’s just good old-fashioned professional courtesy.  Affinity fraud, albeit on the public rather than on those with the affinity.  Masquerading as the Constitution’s design.  The Constitution’s habeas corpus provision, like the Constitution’s assignment to Congress rather than the judicial branch of the power to determine the scope of federal-court jurisdiction, is part of the original Constitution.  These provisions are not in Amendments; they are in the original Articles.  In contrast to the Bill of Rights.  And to the Reconstruction Amendments.

The most important of which, for purposes of this post, is the Fourteenth.  Which provides in the two sections that are at the heart of post-Civil War constitutional civil rights:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

and:

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Meaning that contrary to what (I suspect) most Americans believe, Congress indeed has broad authority to outlaw the slew of local and state laws and practices that brazenly render the United States Constitution’s vaunted civil rights provisions a Potemkin Village.  They actually protect almost no one against even the most arbitrary and absurd,  and even the most corrupt or brutal, police, prosecutorial, judicial and prison-guard and prison-official actions. Even against judges who openly and routinely violate their own state’s laws concerning bail and fines and fees.

Constitution-as-fraud.  How American.  Presumably, the next time Ruth Bader Ginsburg uses one of her month-long vacations during the Court term, or maybe her months-long summer break as she reportedly did this past summer when she spoke at a conference in Australia on the subject of human rights, to flit around the world and lecture other countries’ leaders in government and law about human rights and civil rights, she’ll explain the relationship between, say, this, and this, and this,  and this, and Supreme Court-created federalism. And Freedom, of course.

She might also identify the constitutional authority that her court has for its admitted venture into policy, entirely absent any claim of constitutional or federal statutory interpretation as a pretext, that exempts law enforcement folks—police, prosecutors, prison guards—from civil rights monetary liability to their victims for blatant violations of their federal civil rights. The Constitution’s design, perhaps?  Nah. The justices themselves concede that this is simply a policy of the sort normally reserved for legislative bodies.  But they think the policy is a wise one.  So, no matter that under the Constitution’s design, they have no authority to simply invent a policy.  In the absence of actual constitutional authority, Ginsburg might identify her reason for failing to mention this in her dissents in these cases.  Maybe she will when she visits Canada or Sweden to lecture them about human rights and civil rights.  They’re northern-climate countries, though, so she’ll have to wait until next summer.  Especially since she has no clothes.

As a supporter of Bernie Sanders’ candidacy and a recipient of his campaign’s listserve notices, I received an email message that discusses a bill he recently introduced in the Senate that would end for-profit prisons.  I had heard about the bill but was under the disappointing impression that it prohibited only the federal government’s use of private privately-owned or privately-run immigration detention centers—the only use the federal government makes of prisons not owned and run by the federal government.  And I had assumed that Sanders limited his bill to the federal government because he thought, as so many people do, that Congress is powerless to address issues of that sort pertaining to state and local governments.  But, happily, I was wrong.  The email says the bill “will bar federal, state, and local governments from contracting with private companies who manage prisons, jails, or detention facilities.”  It will not get Marco Rubio’s vote.

The email goes on to say:

The private-for-profit prison racket is a $70 billion industry, and with so much money at stake, it’s not surprising they’ve corrupted our political process.

The industry has contributed millions of dollars to candidates in pursuit of laws that increase incarceration of nonviolent offenders — a practice that disproportionately impacts people of color in the United States. We must stop the practice of governments guaranteeing prison occupancy as part of deals with private corporations that incentivize states to keep prison cells filled. And we must stop the practice of private companies charging exorbitant rates for prisoners to contact their families by phone — sometimes up to several dollars per minute to talk with loved ones, and charging outrageous service fees to prisoners trying to access their money upon release. That kind of exploitation takes an already difficult family dynamic between husbands, wives, parents and children and strains it even further.

It is wrong to profit from the imprisonment of human beings and the suffering of their families and friends. It’s time to end this morally repugnant process, and along with it, the era of mass incarceration.

I wrote here at AB three or four months ago, shortly after I first learned of contracts with private prison companies that guarantee occupancy, that these contracts strike me as flagrantly unconstitutional.

The Sanders bill, if enacted, will be challenged as an unconstitutional abridgment of states’ rights and, indirectly, of the prison corporation’s Freedom; separation of powers equals Freedom, see, when the separation is between the federal government and state or local governments and it advances some Conservative Legal Movement goal.  Or Republican Party donors’ financial interests. But actually the bill is authorized by none other than the Constitution.  Albeit the Fourteenth Amendment, sections 1 and 5, which don’t actually count.  See Dred Scott v. Sandford, 60 U.S. 393 (1857).*

In fact, the entire panoply of violations that the general public now, finally, is aware of can be addressed by national legislation that indeed controls state and local courts, lawmakers, police and prison guards.  That is what I want Bernie Sanders to know before Tuesday’s debate.   I will recommend some in a (much shorter) follow-up post tomorrow.  It is imperative to expose the states’ rights canard for what it is: a key component of the Conservative Legal Movement’s commandeering of constitutional law, via procedural and fabricated jurisdictional gimmicks, to so completely remove constitutional protections from the vulnerable that, objectively, this country cannot be thought of as a civilized society.  Civilized societies don’t conduct themselves in this manner.  Civilized societies don’t uncouple the word freedom from its objective meaning; their highest court and their legislative bodies don’t use the Mad Hatter’s dictionary.

I also will insert several web links into this post tonight or tomorrow.**  Meanwhile, maybe Bernie Sanders can think about proposing a constitutional amendment that will once and for all end the part of the Dred Scott decision of 1857 that still remains to this day the law of the land which says that black people aren’t fully human.  Or an amendment that says that Mike Huckabee is fully human.  There seems to be a lot of support for the first of these, if not for the latter one.

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*Paragraph edited for typo correction and clarity.  Post edited slightly elsewhere, also.  10/11 at 11:10 p.m.

**I’ve added several links. 10/12 at 1:47 p.m.

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Why does Clinton’s senior policy adviser Jake Sullivan think liberals support bottlenecks for small business loans? And does Clinton REALLY think that if Corrections Corporation of America and its chief competitor (Marco Rubio’s tacit business partner, GEO) reduce their prices, mass incarceration should continue?

“People often talk about the electorate moving left,” said Clinton senior policy adviser Jake Sullivan. “I think it’s more that the electorate is just getting more practical. For Hillary Clinton, that matches her evidence-based approach. The arguments that persuade her are evidence-based and progressive.”

He cited the growing consensus that mass incarceration is expensive and unworkable, and that the country is never going to deport all of the more than 11 million people who are here illegally.…

Sullivan also noted that some of Clinton’s early proposals “cut against the grain” of political liberalism, such as her emphasis on improving the playing field for American small businesses.

Clinton will debut policy proposals to ease lending bottlenecks for small businesses on campaign trips to Iowa and New Hampshire this week. The impetus came largely from conversations Clinton had in the run-up to the campaign and a six-month policy review led by Sullivan that looked at how Clinton might address a variety of national concerns.

“The thing she is most interested in is not what position is most popular, it’s what do people worry about,” Sullivan said.

— Clinton is banking on the Obama coalition to win, Anne Gearan, The Washington Post, today

Hmmm.  Okay, Dems.  We need to realize that we’re in trouble.  No, we’re not gonna lose the general elgection.  But our likely standard bearer thinks she’s boldly challenging her party’s base, Sister-Soulja-style, by emphasizing improving the playing field for American small businesses.  As against, say, Walmart. And JPMorgan Chase’s investment banking clients.

I mean … like … Wow.

So Clinton, or at least her senior policy adviser, has never heard of the Durbin Amendment.  Or else thinks that Illinois Sen. Dick Durbin is a Republican.  Or maybe a centrist Democrat rather than a very liberal one.  And that Clinton, who her campaign chairman, John Podesta, elsewhere in the article assures that “[s]he’s a proud wonk, and she looks at policy from that perspective,” thinks liberals were up in arms back in early 2010 at the idea that the federal government would interject itself into the by-then-long-running controversy between the credit card/ATM card companies and small retailers (including franchisees such as gas station owners) about the usurious charges that Visa and Mastercard were charging businesses for processing even very small purchases by their customers.

Apparently neither one of them had causal conversations with the three or four small business owners in the Ann Arbor, Mich. area that I happened to chat about it with back in, oh, 2009, 2009, 2010.  Including one I remember, the owner of an independent dollar store, who said that while Walmart could afford the charge for processing small credit/ATM card purchases, those charges cut significant into his profit.  And I guess neither one of them—Clinton nor her senior policy adviser—ever drove, back then, say, north on Pontiac Rd. from Ann Arbor and noticed the family-owned gas stations with signs highlighting the $.10-per-gallon, and then occasionally the $.20-per-gallon, discount for paying in cash.  That’s too bad.  But then, although it’s now lost in memory, Michigan had no Democratic primary in 2008 that year, because of a controversy concerning the state Dem Party’s decision to try to move its primary ahead of New Hampshire’s.  (Something like that; I can’t remember the details.)  So Clinton didn’t campaign in the state, and her current senior policy adviser, who had a high position in her 2008 campaign, would not have visited the state either.

Nor, obviously, are Clinton and her senior policy adviser aware of Paul Krugman’s columns and blog posts explaining the tremendous edge that the mega-banks, which no longer deign to actually make business loans to small businesses because, well, they’re doing just fine with their hedge fund and investment banking operations (I mean, well, usually they are), have over regional or local banks that do so deign.  And since they’re getting their take on liberals from Fox News and Rush Limbaugh, they also apparently don’t know that Elizabeth Warren, Sherrod Brown, and Jeff Merkley have used their positions on the Senate Banking Committee to try to enact legislation to break up the mega-banks by prohibiting banks that have standard so-called retail banking operations from engaging also in hedge fund and investment banking functions.  Which Clinton, wonk that she is, would understand would itself make it easier for the banks that would be operating as, y’know, banks to make loans, on decent terms, to small businesses.

Maybe Clinton and her senior policy adviser think Krugman and those three senators and, say, Durbin and Bernie Sanders, are Tea Party members.  Or centrists.  Or maybe they know of other liberals who are demanding justice for JPMorgan Chase and Citibank.

Or maybe they should get out more among, say, real live liberals.

For that matter, they also should get out more among moderates.  Most of whom, probably, think this country’s three-decades-long mass-incarceration policies raise profound concerns beyond the exorbitant direct expenditures, many of whom, probably, would question Clinton’s basic judgment if they knew that she thinks state governments should just drive a harder bargain with Marco Rubio’s tacit business partner, GEO, and its main competitor, Corrections Corporation of America—both of which, it turns out, have contracts with state and county governments in which the governments promise to keep the prisons or jails at or near capacity, or pay the corporations for the empty beds.  I mean, cots.

Both Clinton and her senior policy adviser hold law degrees from Yale.  So, who knows? It might even occur to one or the other to suggest that such contracts constitute wholesale violations of Fourteenth Amendment due process guarantees. And state constitutions’ separation-of-powers structure.  Perhaps Samuel Alito, who is deeply concerned about the constitutionality of public-employee unions’ very existence because of unions’ power to determine such things as the size of state government, can assist with legal theory.  Maybe they could ask him for suggestions.

I mean, they’re wonks, right?  How else would they know that mass incarceration is expensive?

And if Clinton doesn’t inform the public of that fact, they won’t know that fact.  luckily, she plans to tell the public, and support this assertion with detailed information about the math formula she used to discern that fact. And really, it is a fact.  Mass incarceration is very expensive. And that money could be used for … other things.  Good thing she’s a practical wonk.

But back to the nitty-gritty of using us liberals as foils to assure moderates that she’s not really so liberal even now, what with her cutting against the liberal grain of proposing to end bottlenecks to small-business loans, and all.  I will oblige her, and have my brick ready to throw through the window of a neighborhood Thai restaurant nearby that plans to expand after it gets a new loan.

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Samuel Alito Thinks There Has Been a Constitutional Right of Four People to Marry One Another at Once Since 1967. Interesting.

Justice Kennedy said he was concerned about changing a conception of marriage that has persisted for so many years. Later, though, he expressed qualms about excluding gay families from what he called a noble and sacred institution. Chief Justice John G. Roberts Jr. worried about shutting down a fast­moving societal debate.

Justice Samuel A. Alito Jr. asked whether groups of four people must be allowed to marry, while Justice Antonin Scalia said a ruling for same­ sex marriage might require some members of the clergy to perform ceremonies that violate their religious teaching.

Gay Marriage Arguments Divide Supreme Court Justices, Adam Liptak, New York Times, this afternoon.

A fun parlor game among some progressive pundits leading up to today’s gay-marriage arguments at the Supreme Court has been speculating about what would be the most ridiculous analogy to gay marriage offered by … well … Scalia, who has offered his share of silly analogies on such things before.

But early reports on the argument suggest that it was not Scalia but Alito who distinguished himself most on this front this morning.  The constitutional issues in today’s six consolidated cases, called Obergefell v. Hodges, are essentially the same as the ones that were at issue in a 1967 case called Loving v. Virginia, in which the Court struck down as violative of the Fourteenth Amendment’s due process and equal protection clauses state laws that prohibited interracial marriage.

In fairness to Alito, I don’t know the specific context—the specific statement of counsel whom Alito was asking, perhaps, a follow-up question. But by mentioning Alito’s question in his short article written immediately after the argument, Liptak seems to suggest that Alito ‘s inquiry was pretty general.

So I’m guessing that Alito fears that a decision in favor of the gay couples who want to marry will remind people who want to marry three people at once—a.k.a., polygamy—that they have had a due process and equal protection right to do so since 1967.  Or else he just forgot about Loving.

Which would make him a bedfellow, apparently, of Hillary Clinton, who last summer told NPR’s Terry Gross, “For me, marriage has always been a matter left to the states.”  So, for her, it always has been, but for the interracial couple who challenged such a precept in Loving, it turned out not to be.

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Post edited slightly for clarity. 4/28 at 6:45 p.m.

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The appalling failure today of Sonia Sotomayor, Elena Kagan, Stephen Breyer, Anthony Kennedy, John Roberts and Samuel Alito [Updated]

This speaks for itself.  I’m sure that Kennedy, Roberts and Alito call this ‘freedom’.  I won’t guess at what Sotomayor and Kagan call it.  But what Breyer calls it, or should, is conflict of interest.  Back when Breyer was lead counsel for the Senate Judiciary Committee, he helped draft the Federal Sentencing Guidelines—a really appalling policy—and has spent the remainder of his career serving as rear-guard protector of it.

Breyer makes me sick. Then again, so does Kagan (nothing new there) and now Sotomayor.

But let’s hear it for Ginsburg, Scalia and Thomas.

____

UPDATE: Anyone who’s interested in this subject–and anyone who’s interested in the broader subject of an increasingly important chasm between rightwing libertarianism that is limited solely to taxes/economic-regulation/the-47% schtick and right-wing libertarianism that actually also considers the issue of denial of actual physical freedom to be within the definition of Freedom! Liberty!, presumably even when the denial of physical freedom is by a state or local government rather than by the federal gummint–should read this blog post on the rightwing-libertatian Cato Institute’s web site, about this “cert.” denial.

Of particular interest to me is the comment about Kagan’s decision (evident throughout her tenure on the Court) to be part of the “pragmatic” wing.  As the Cato post implies, Kagan has a pretty curious idea of “pragmatism.”

The case at issue, Jones v. United States, was a case prosecuted federal court and subject to the Federal Sentencing Guidelines.  But the ground on which cert. was sought was one under the Sixth Amendment, and a ruling finding the judicial practice at issue unconstitutional would have applied to state prosecutions as well as to federal ones.

10/16 at 12:25 p.m.

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Alito’s (really) weird lobbying hobby, and its chaotic results

As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows:

“’General business corporations do not, separate and apart from the actions or belief systems of their individual owners or           employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions                separate and apart from the intention and direction of their individual actors.’ 724 F. 3d, at 385 (emphasis added).”

All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.

— Samuel Alito, writing for the majority in Burwell v. Hobby Lobby, Inc.

What the judge who wrote the Third Circuit opinion that the Court reversed yesterday meant, obviously, is that general business corporations do not, irrespective of the actions or belief systems of their individual owners or employees, exercise religion. The sentence was inarticulate, but its following sentence made clear that that judge was distinguishing the ability to believe from the ability to taken actions. In any event, irrespective of what the Third Circuit judge meant, the fact remains–and Alito states–that a corporation is simply a form of organization used by human beings to achieve desired ends.

The desired ends of for-profit corporations is to make a profit, not to practice or advance a religion.  Alito’s right that it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. It also is important to keep in mind that the purpose of this fiction is to provide protection, for human beings, related to the purpose of the corporation.  Which for Hobby Lobby and other for-profit corporations, is to make money.

Alito then explains via sleight of hand that in enacting the Religious Freedom Restoration Act (RFRA) Congress intended to include for-profit corporations as protected “persons”:

As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1.

Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.

We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA. See Brief for HHS in No. 13–354, at 17; Reply Brief in No. 13–354, at 7–8.19

This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.20Cf. Clark v. Martinez, 543 U. S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”).

No conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations–other than the definition that Alito provided in that first paragraph I quoted and the paragraph preceding the one in which he says that no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.* The statute isn’t called the Religious Freedom Restoration Act for nothing; it’s called that because it intends to restore the right to humans to engage in religious practices that the Supreme Court then-recently had removed–in the case at issue, the right to use peyote in certain religious ceremonies.  The nonprofit religious entities in each of the earlier cases that Alito cites were religious organizations–they were established for the purpose of joining together to practice a religion, not to make a profit on secular goods or services. The statement that Congress intended to include secular for-profit corporations as protected under the RFRA is a false statement of fact and is absurd.

There most certainly is something about the RFRA context that “indicates otherwise.”  The something is that the statute concerns freedom of religion by, as Alito concedes, human beings, and that there was no conceivable understanding by anyone at the time that this law was enacted that secular corporations–whether nonprofit or for-profit–practice religion or hold religious beliefs.  HHS created a workaround for religious nonprofits, not because they are nonprofits but because their reason (or at least an important reason) for their very creation and membership is the practice of religious beliefs by their human members.

Alito’s opinion strongly implies that corporations have First Amendment rights only as derivative of their human owners.  As I said in my post yesterday, and believe all the more today, both of Alito’s opinions–Harris v. Quinn as well as Hobby Lobby–appear to have been written as majority or plurality opinions decided on constitutional rather than on statutory grounds, and converted into purely statutory rulings after the initial votes among the justices and assignment of the opinions to Alito.  Alito apparently lost one or two members of his bare majority or four-member plurality late in the game in each case, and substantial parts of each of the final opinions.

And I am not the only one who is saying that. Nor the only one who thinks the respective resulting opinions are barely coherent. And as a ruling solely interpreting the RFRA as intended by Congress to protect religious beliefs of “persons” who are actually secular corporations, Hobby Lobby is Lewis Carroll-level nonsense.

But I am gratified that Alito, in a majority opinion, has acknowledged that constitutional and statutory rights of corporations are solely derivative of their human shareholders’ constitutional and statutory rights.  I’ve been arguing here at AB for years now, including in posts about Hobby Lobby in the last few months, that Kennedy’s opinion in Citizens United intimated exactly that by saying that corporations have First Amendment speech rights because they are associations of people; the corporation’s free-speech rights are derivative of its shareholders’. And I’ve been saying, as I did once again in my post yesterday, that corporate CEOs have no legitimate right to exercise proxy First Amend speech rights of shareholders without the shareholders’ authorization.  Including shareholders, or legitimate proxies for shareholders, such as public-employee pension fund managers.

I’m also gratified–deeply, in fact–that the examples Alito used to illustrate his point that corporations have legal rights only in order to protect their human owners, officers and employees were the examples that I’ve used in several AB posts discussing the purpose of legal protections conferred by the legal fiction of corporate personhood. Extending Fourth Amendment protection to corporations indeed protects the privacy interests of employees and others associated with the company. And protecting corporations from government seizure of their property without just compensation does protect all those who have a stake in the corporations’ financial well-being.

But I, unlike Alito, have noticed that Fourth Amendment and Fifth Amendment (property seizure without just compensation) protections are extended to corporations because the corporate computers, office files, and such that are protected under the Fourth Amendment, and the corporate property protected under the Fifth Amendment, relate to or exist because of the purpose of the corporation: to run a business and, for for-profit ones, make a profit.  Secular for-profit corporations rarely own church properties, and if they do, it’s as rental real estate. Corporate shareholders, officers and employees benefit from Fourth Amendment protections for corporate property at the office, but their personal property–a cell phone, a personal laptop, a purse, a briefcase, a jacket with pockets, family photos–that is in their office on corporate property or in a corporate-owned vehicle or in their homes is protected solely by their own, not any corporate, Fourth Amendment rights.

Alito’s statements are preposterous.  But, in my opinion, they also preclude extension of Hobby Lobby corporate religious rights to publicly held corporations.  Alito doesn’t try to reconcile his statement that corporate legal rights derive from the humans who are employed by the corporation as well as by its owners and officers with the fact that the ruling allows the corporation to adopt the religious beliefs and practices solely of its owners irrespective of its employees’ religious beliefs. For that reason, I wonder whether even the part of the opinion singing the praises of legal rights derived from humans associated with the corporation was written by another justice–Kennedy, maybe–and inserted shortly before the opinion was released.

Either way, the formal conflating of owners’ rights and corporate rights does strike me (as I said in my post yesterday) as enabling and even inviting further piercing of the corporate veil, in ways that may not make the Chamber of Commerce very happy.

*Sentence typo-corrected to insert a missing “no” in the second half, and edited slightly for clarity. 7/1 at 8:56 p.m.

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