This open letter asks the honorable Governor to explain why he or anyone else should “respect the authority of the Supreme Court to make those decisions,” like McCutcheon or Citizens United. Both were extreme examples of legislation from the bench in violation of the Constitution’s separation of powers. A politician who refuses to support the Constitution in the tradition of FDR violates the constitutional oath required for any public service.
An Open Letter:
Governor of Massachusetts Deval Patrick said in a radio interview on April 15, 2014: “I respect the authority of the Supreme Court to make those decisions” that have corrupted politics, like McCutcheon. I write the Governor to clarify his position, and to express opposition to this statement.
To “respect” authority in the abuse of its power is to align oneself with and further enable that same abuse. Experience shows that resisting rather than respecting such abuse, especially in the case of the U.S. Supreme Court, has the effect of curbing it.
Converting a democracy into a plutocracy is a crime of constitutional dimensions. If the Governor does sincerely believe that the Roberts Court legitimately has the power to amend the Constitution for this purpose, I would like him to point out precisely where in the Constitution that power is given to five unelected judges? Article V seems to have a different, much more difficult, process in mind than the vote of a single Supreme Court justice in a 5-4 decision. The constitutional process involves an intentionally – and for any such major political change all but impossibly – difficult 2/3 vote of each house of Congress. Then three-fourths of the state legislatures must ratify Congress’ proposal. The elected representatives of those bodies, through their legislative acts, give not the remotest sign of agreeing with the Roberts 5 about the constitutional validity of allowing big money into politics.
Five judges’ radical amendment of the Constitution by their series of seven decisions to which the Governor gives his “respect” flouts the established process for making such an enormous constitutional change.
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If the Governor disagrees that the five judges who constitute the Roberts Court have amended the Constitution, then I would like to have him point out precisely where in the Constitution it says that Congress (and therefore the People) lack the constitutional authority, as the Court ruled in McCutcheon, to prohibit the wholesale purchase of influence from, and the resulting systemic corruption of government by, political parties. As the Solicitor General pointed out in arguing McCutcheon, there is no other likely result from legalizing large biennial contributions to parties, and their candidates, of an aggregate amount as high as $3.6 million per plutocrat, than “a very real risk that … the government will be run of, by, and for those” who help put the “$1.5 billion together to run a congressional campaign.”
Governor Patrick did rightly protest that “I don’t think that is what the founders had in mind, I don’t think that that is what most Americans have in mind in terms of a healthy democracy, and I don’t like the decisions of the Supreme Court” on this subject of money in politics. That statement, which is generally supported by the four dissenting judges on the Court, would, no doubt, also be overwhelmingly popular with Governor Patrick’s constituents. Yet his statement remains just the opinion of one who chooses to remain a bystander rather than to use his elective office to be an effective actor on behalf of the people when at the same time as making these politically agreeable observations Gov. Patrick publicizes his “respect” for the authority of judges to make illegitimate decisions contrary to these views.
If the Supreme Court has authority that should be respected by the public to read the Constitution to say anything five undistinguished and unrepresentative occupants of seats on the Court say it means, however preposterous, then there is nothing effective the People can do to get their Constitution back from five boldly political operatives in robes in the foreseeable future. But if the Roberts 5 lack this authority then there are common legislative remedies that can be pursued right now to restore the Constitution.
The framers did not consider judges to be saints above the law and the Constitution. Rather they gave Congress the authority to enact checks and balances such as, in Article III, Sec. 2, making exceptions to their power to hear cases they have no business deciding, such as political questions about election integrity and public corruption.
Addressing this same problem, T. Roosevelt, quoting Lincoln, said “when a judge decides a Constitutional question, [about] what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it is wrong. … [I]t is both absurd and undignified to make a fetish of a judge or anyone else.” Have you, Governor Patrick, violated the first President Roosevelt’s advice by making a “fetish” of politicians in robes, respecting rather than resisting their illegitimate political decisions about “what the people as a whole can or cannot do” about the systemic corruption of their state and federal governments?
Unlike the Roberts 5 judges who in McCutcheon empowered parties by denying the people of the United States the sovereign power to prohibit parties from systemically corrupting any government they control by selling policies for cash, the framers who wrote the Constitution in fact disliked political parties. James Madison in The Federalist No. 10, and other framers of the Constitution, feared that parties would be used for this very purpose of corruption which McCutcheon has now ruled to be legalized by nothing other than the framers’ Constitution. Madison wrote: “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.” But he worried about the problem that political parties (“Men of factious tempers”), “by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people.” Madison’s Constitution was therefore designed to prevent, not facilitate, betrayal of the interests of the people by the corruption of government by political parties. Madison’s Constitution gave political parties, as such, no rights. “Factious” political parties, seen an unavoidable evil, are not even mentioned in the Constitution and were only contemplated by the framers for purposes of devising means to frustrate their inherent corruption.
Nor did any later amendment to the Constitution – unless made illegitimately by judges – give parties constitutional rights to corrupt representative government, or any other rights as parties. The Constitution gave parties no more rights than, implicitly, those of the individuals who constitute them, and possibly less than that under the laws of criminal conspiracy that make collective crime more serious than individual crime. Now according to Justice Roberts’ decision in McCutcheon parties have the right to directly take money for policy even if the individual politicians who constitute the party are prohibited from making “a direct exchange of an official act for money.” Roberts’ rules regards parties as too big to regulate by such means as limiting to less than $3.6 million the size of contributions they may take from an individual plutocrat, which enables around 400 such plutocrats to exchange money for all the nation’s official acts.
Governor Patrick is a leading member of one of those parties whose systemic corruption has now been legalized. He needs to make his position clear in order to avoid any appearance of a conflict with the interests of his average constituent who makes no such political investments By conceding the legitimacy of the Roberts 5 to elevate themselves to the position of policy-makers for plutocracy, Gov. Patrick communicates the opposite.
Does Governor Patrick stand with the framers who would be shocked at the abuse of their Constitution so as to create a plutocracy managed by corrupt political parties? Or does he stand with the shocking abusers of that Constitution, the judicial managers of its overthrow by corruption?
If not in the contemplation of the revolutionaries against oligarchy who wrote the Constitution, nor of the American people, nor of the legislatures and chief executives who enact and sign the laws repeatedly overthrown by the Roberts 5, nor of the four dissenting justices, nor of a prominent representative of the legal profession such as the Governor, then where does the Court get the authority that the Governor “respects” and therefore asserts that the Court legitimately possesses to create such a rule?
Chief Justice Roberts seemingly created this new rule overturning long-standing precedent and legislation out of thin air, just as he did when inventing the “equal sovereignty” rule in Shelby County (2013) to overturn the Voting Rights Act, a law of even older vintage, and when inventing reasons to deny speech rights by pretending to protect those rights by overturning Arizona’s matched public funding of elections, a law adopted by the people of Arizona by referendum. See Arizona Free Enterprise Club (2011). These Roberts decisions invent highly doubtful constitutional rules to reduce the influence of the people in the government over which they are absolute sovereigns.
If the latest Roberts’ rule in McCutcheon derives from the three words “freedom of speech,” as he claims, perhaps Governor Patrick could explain why other crimes involving speech, like filing a false tax return, is not just as legal as the Court has made influence peddling and public corruption?
The truth or falsity of the election speech bought with plutocrats’ money seems to be of little difference to the Roberts 5. In SBA List v. Dreihaus (argued April 22, 20014) an activist anti-choice group who sought to make false statements about Obamacare for political gain received a warm welcome from the Court for hearing a suit against the Ohio law designed to deter propaganda from elections. SBA List argued: “Our constitutional claim here is the ministry of truth has no ability to judge our political speech as falsity.”
If the Governor does not like that example on tax day, especially in Massachusetts where taxation without representation caused a famous public disturbance, there is a long list of other examples that would have to be explained, like espionage, forgery, perjury, subornation of crime, fraud, conspiracy, procurement (pimping), gambling, libel and slander, copyright violation, securities violation, false advertising, misprision, truth in lending violations, product mislabeling, unregulated health claims, usury or any illegal contract, disturbing the peace, and any of the other numerous violations that involve an element of speech. If an act like giving politicians money is considered speech then there are many more crimes involving acts that communicate an idea like in the classic case of draft card burning that would also have to be explained. The Supreme Court has not and cannot explain why the crime of corrupting government should be the only such crime to be legalized under the pretense that it is speech intended by the framers to be free of government regulation.
The overthrow of democracy by corruption is more important than any of these criminal acts. On what clear basis can this one “speech crime” designed to prevent overthrow of representative government by corruption be distinguished from all other such crimes, whether solely involving speech or also involving acts — like giving money to politicians to gain influence — that can be interpreted as containing elements of “speech”?
Who made the Roberts 5, unlike all other political operatives of their kind, saints incapable of making a mistake in interpreting the Constitution? If they are saints, what about those four dissenters who strongly state that the Roberts 5 did make a mistake, and did so in part by substituting their own opinions for established judicial fact-finding processes? How did those four lose their judicial sainthood? Majority vote, determined by the margin of one judge appointed by an unelected President illegitimately appointed by the Supreme Court?
And how did Congress lose its power to check and balance such a Court? It used this power after the Civil War, for example, to strip the Court of jurisdiction to decide Ex parte McCardle, 73 U.S. 318 (1867) in order to prevent partisan judges from overthrowing Reconstruction before Reconstruction even got started. Is it your opinion that “respect” for the Court required Congress to allow the partisan justices to overthrow Reconstruction?
The same authority used in McCardle needs to be used now to resolve a similar constitutional crisis created by an overreaching Supreme Court majority which is overthrowing the republican form of government itself. How is it helpful to advocate “respect [for] the authority of the Supreme Court,” i.e. the Roberts 5, rather than respect for the dissenters by stripping the illegitimately usurped authority from these five partisan judges to overthrow democracy, just as Congress did to save Reconstruction? As so often during similar Court-generated crises in American history it is the dissenters, like Harlan, Holmes, Cardozo, Brandeis, Stevens and Souter, who are upholding constitutional values; it is the majority that is overreaching its proper powers in order to erode those values on behalf of an anti-democratic elite.
Not to write a monograph here on the subject of the separation of powers for the Governor, who is a Harvard educated lawyer and top attorney who should be familiar with that subject, I will just ask whether he disagrees with President Franklin D. Roosevelt when FDR accused a majority of Supreme Court justices of violating the most venerable rule of constitutional interpretation.
The Supreme Court should, Roosevelt quoted, “presume in favor of [a law’s] validity until its violation of the Constitution is proved beyond all reasonable doubt.” Roosevelt quoted this particular clear statement of this often-stated rule from the opinion in Ogden v. Saunders (U.S., 1827) written by Bushrod Washington, the nephew and heir of George Washington. This rule was specifically designed to uphold the essential constitutional framework of separated powers.
“Beyond a reasonable doubt” is a standard routinely applied by every criminal jury. But the Roberts 5 seem to have a difficult time applying a rule that every citizen who sits on such a jury is expected to routinely understand and apply without much difficulty.
Roosevelt charged that, by violating this rule, “the Court has been acting not as a judicial body, but as a policy-making body.” Madison insisted that this usurpation of political power by a court “may justly be pronounced the very definition of tyranny.” (The Federalist No. 47).
You doubt that the McCutcheon opinion reflects the original meaning of the Constitution, the people’s general view of the Constitution, your own presumably reasonable view of the incorrectness of Roberts’ decision, while four justices on the Supreme Court also agree with you. How then could you think that there exists no “reasonable doubt” about its validity in overturning already enormous aggregate limits on direct campaign contributions to incentivize political corruption on an even grander scale? Would not any jury of ordinary citizens provided adequate information be able to decide without much difficulty under these circumstances that there is “a reasonable doubt” about whether the framers, when they announced the principle of “freedom of speech” without further definition, intended to undermine their creation of a representative and republican form of government by systemic corruption managed by political parties?
It is not a farfetched hypothetical to ask what you would do as a judge. Except for your opinion on this subject of the Court’s authority to overthrow democracy, you are eminently qualified for that position. Unlike any sitting justice you have also acquired legitimacy from the confidence and respect of the people who elected you Governor, much like the last governor and great Chief Justice of the Supreme Court, Earl Warren.
If you were a judge, would you rule that Chief Justice Roberts has “proved beyond all reasonable doubt” to your satisfaction that to prohibit plutocrats from paying millions to politicians and their parties violates the Constitution? Did we not receive the Constitution from the founders for the very purpose of preserving, not undermining by corruption, our republican form of government? Or do you think, as Roosevelt did about similar legislating from the bench, that “the Court has been acting not as a judicial body, but as a policy-making body” by inventing a rule that neither you nor anyone else but the Roberts 5 can find in the Constitution on the very most important, and the most broad-ranging in its impact, of all possible kinds of policy-making?
If the latter, then how can you, Governor Patrick, at the same time “respect the authority of the Supreme Court” to implement a policy to sell the United States to the highest bidders? The Roberts Court’s policy is the only way, other than foreign occupation, that the Constitution could be overthrown.
How can you “respect the authority of the Supreme Court” to make a decision that overthrows the Constitution by violating the traditional limits on the Court’s constitutional authority to strike down only those laws that violate the Constitution “beyond all reasonable doubt?” Where there is reasonable doubt there can be no law, but just differing opinions about desirable policy.
As a judge, would your dissent not argue that the majority lacks authority to make such policy decisions because it is the Roberts 5 who are unreasonable in imposing an interpretation upon the Constitution that is full of every doubt, and that it is you, along with four dissenting justices, the framers, and the American people who are reasonable in doubting their historically and textually unsupported interpretation?
If so, is it not your professional obligation as a prominent attorney, who at the same time has been elected to represent — as you suggested in the same interview – “the interests of the people who cannot write that check,” to speak up like FDR did under similar circumstances? Do you not have an obligation to resist the Supreme Court’s claim to rule the country by illegitimately usurping legislative authority to make policy on a matter of such profound importance to the basic survival of the Constitution?
If not you, then who? You have sworn several times since becoming a lawyer to defend and support the Constitution, as mandated by its Article VI(3). By publicly advocating “respect” for “the authority of the Supreme Court” to “usurp [jurisdiction] which is not given” you instead seem to be violating that oath by suborning what Chief Justice Marshall defined as “treason to the constitution.” Cohens v Virginia , 19 U.S. at 387 (1821).