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Posted by on Jul 10, 2012 in Law | 16 comments

How The Law Is Supposed To Work

With the Supreme Court’s recent rulings on Arizona’s SB 1070 and the ACA, the Montana case challenging Citizens United got little coverage. The Montana Supreme Court decided 5-2 to ignore Citizens United and uphold a Montana statute restricting corporate expenditures in elections. Accusing the Montana Supreme Court of ignoring Citizens United may be hyperbole, but that’s effectively what they did.

The U. S. Supreme Court slapped down the Montana Supreme Court, but within this game of judicial ping pong one Justice stood out. No, not a Justice of the U. S. Supreme Court, but a Justice of the Montana Supreme Court. His name is Justice James C. Nelson (pictured above), and he understands something many others don’t get. How the law is supposed to work. Whether you agree with it or not, lower court judges are bound to follow precedent, not ignore it.

Justice Nelson was one of the two dissenters in Montana’s 5-2 decision. His reason was that he was obligated to follow Citizens United even though he disagrees with it. And, boy, does he disagree with it.

“While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders,…

Justice Nelson also discussed the concept of corporate personhood:

“While I recognize that this doctrine is firmly entrenched in law, I find the concept entirely offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.”

This is a sampling of his scathing appraisal of Citizens United. But, in spite of his personal disgust with the U. S. Supreme Court’s decision and rationale, Justice Nelson did his job, broke with a majority of his own court and followed the precedent set down by the U. S. Supreme Court. His example is becoming increasingly rare.

The politicization and partisan bickering that have infected our courts have left us without our traditional understanding of how the law should work. While we are welcome to dislike a decision, it is the law. If we are to be a nation of “laws, not men” that law, even decisions with which we disagree, must command our respect. Think, if you will, how different Justice Nelson’s approach is to so many others who disagreed with recent Court decisions like the SB 1070 decision or the ACA decision or the Citizens United decision.

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Copyright 2012 The Moderate Voice
  • slamfu

    Justice Nelson is my hero.

  • The_Ohioan

    Supreme Court Justice, anyone?

  • merkin

    I don’t know why the minority didn’t force a hearing of the Montana appeal. Contrary to news reports the Supreme Court didn’t rule in Citizens United that corporations have an absolute 1st amendment right to free speech. The fab five actually made a ‘finding’ of completely baseless and utterly fabricated fact that unlimited campaign expendures by outside groups doesn’t lead to corruption of the electoral process or the appearance of corruption. This is of course ridiculous. It is saying that in their option Citizens United is wasting their money and as long as they are it is constitutional.

    If this how the law is supposed to work for you then you are easy to please.

  • davidpsummers

    It is heartening that a justice should worry about the law. I too am concerned about money in politics but I am also concerned about partisanship in the courts.

    It would be doubly sad to descent in partisanship over this issue because, contrary to popular belief, the Citizens United ruling is not the main cause. I heard a NPR item talking about Citizens United and how the effect boil supposedly boil down to 80 _individuals_. But Citizens United was never about individuals. It is applied only to organization. The fact is that, without citizens united, most of the money would just be passed onto individuals to spend and the right of individuals to spend money on campaigns goes back to Buckley v. Valeo.

    In the end, the main solution is going to be something like public financing. Even this is going to require a consensus which means we are going to have to rise above partisan concerns about how it affects “my side”.

  • DR. CLARISSA PINKOLA ESTÉS, Managing Editor of TMV, and Columnist

    excellent article. Thanks Elijah.

  • merkin

    I am sorry, the problem is not the partisanship in Washington. The problem is the Republican party. They are the ones who are refusing to budge off of this mindless dedication to really no more than a few campaign slogans and talking points from the 1980’s that they believe constitutes a valid way to govern the largest and most complicated economy and society in the world. Even after failure after failure of their policies we still hear the chants over and over again as if mindlessly repeating them will somehow make them work this time.

  • slamfu

    I’m with Merkin.

  • Dr. J

    that they believe constitutes a valid way to govern the largest and most complicated economy and society in the world.

    What I believe is that corporate entities are *the* structure through which citizens organize into groups to pursue common interests. And money is an essential tool for allocating resources, used by every group larger than, say, a commune.

    So it simply boggles my mind that liberals imagine the largest and most complicated economy could operate without these tools.

  • slamfu

    No one is saying we abolish the idea of corporations. They exist for a purpose and do it well. We are saying we don’t grant them equal status as actual people. The simple idea sends shivers down my spine.

  • Dr. J

    No, not abolish them completely, but restrict citizens’ use of them for political purposes. Citizens trying to influence elections, in other words, need to do it without teaming up. That’s a huge handicap relative to the opposition, which is to say incumbent office-holders.

  • Jim Satterfield

    “What I believe is that corporate entities are *the* structure through which citizens organize into groups to pursue common interests.”

    No, that is not what corporations are. For profit corporations have nothing to do with citizens organizing in order to pursue common interests. They are purely meant as economic entities organized to pursue profit. I am going to stick to the commenting guidelines but it just boggles my mind that someone can actually equate BofA, JP Morgan Chase, Enron, Koch Industries or any for profit entity with citizens organizing for a political purpose. Where does this definition come from? It shows an appalling ignorance of the history of the corporation.

  • Dr. J

    Jim, of course for-profit corporations are citizens pursuing common interests. Commercial ones: producing and selling goods and services, making a living, and earning a return on investments. And yes, even so far as weighing in on laws that might affect their ability to do those things.

    I’m not sure why you’re singling those out, though. Citizens United was a nonprofit that was expressly about political influence. Despite that (or one could argue because of that) it was in the crosshairs of the incumbent politicians who passed McCain-Feingold.

  • EEllis

    For profit corporations have nothing to do with citizens organizing in order to pursue common interests.

    For one thing there is no For profit Corporation. There are Non-profits but that’s a tax thing not having anything to do with it being a corp. And organizing for a common goal is exactly what all corps do just for some the goal is to make money. Citizens United was a Non-profit but even if it didn’t meet the IRS requirements or found the paperwork too onerous then so what? Umion are there to in part make their members more money. Co-ops to make their members more money. They still get a say. I understand that people may dislike the possible results of a ruling but the distortion of what the ruling says and the blind refusal to accept the slightest possibility that there is even an argument boggles my mind. The majority opinion specifically said that the ruliing wasn’t about corps in particular but that you don’t lose you right to free speech on joining any organization. That is not crazy it’s the complications that the vast corp money could have that causes the issues not the basic premise.

  • EEllis

    It shows an appalling ignorance of the history of the corporation.

    Actually the history of Corporations shows that until recently it was never just about profit. They were formed for special purposes by charter to achieve specific goals that were desired by the Crown or, after the revolution, the States. People would invest in the corps in hope of making money but the goal was something the Crown or State wanted to encourage. Like building a canal, foreign trade, etc.

  • davidpsummers

    All these comments on how much power corporations should have in the political system all miss the mark. Corporations would have little trouble moving money to individuals to use for political purposes which has been protected since the 70’s (in Buckley v. Valeo). For example, I see article after article about the Koch brothers abusing Citizens United, but they always have been free to spend money on political ads all along.

    Ironically, one group that does benefit some is one that most critics would support, the unions. Their right to political speech also depends on their rights as a organization.

  • Dr. J

    I understand that people may dislike the possible results of a ruling but the distortion of what the ruling says and the blind refusal to accept the slightest possibility that there is even an argument boggles my mind.

    I think liberals perceive the issue as a boxing match between corporations and individuals for political influence, and they’re siding with the individuals. I would too, if I perceived those as the contestants.

    I don’t. Individuals aren’t in the ring at all. In a country of 300M people any individual’s voice is negligible. Activists trying to change the status quo absolutely must group up with others to have any hope of mattering. So national politics is inevitably a battle of one group versus another.

    The group to worry the most about is the one that passes laws, employs police and operates prisons. Despite this group’s many areas of disagreement, one thing its members can agree on is its own job security. No surprise that McCain-Feingold was a bipartisan effort.

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