A Mother’s Day Gift to America - End Judicial Activism
Stop Protecting Citizens Not Born of Women
Republican Chief Justice Waite
The Man Who Ruled Against Mothers
And In Favor of Unnatural Persons
It has become the mantra of the Republican Party that judges should interpret the law and not “write” the law from the bench. In truth, should President Obama find a nominee who truly met this standard he would not receive one Republican vote in the US Senate.
Judicial adventurism is linked to Republican opposition to abortion rights declared by the court in Roe V Wade. In that case the court found that the “right to privacy” prevented the states from outlawing all abortions. The “right to privacy” is not spelled out in the constitution but had been found to be inherent in a previous case overturning Connecticut’s ban on birth control. Finding that a right not spelled out in the Constitution overturns laws in almost every state seems like a bridge too far for many Americans.
The more recent decisions by some state courts declaring a right of gay couples to marry makes that Republican argument very current. However, the GOP isn’t just concerned with social issues. The GOP also wants judges who are probusiness and to pass this test they must not be passive or hung up on a strict reading of the law.
The next time a Republican derides judicial activism, ask him about Santa Clara County v. Southern Pacific Railroad Company. That case was decided by the US Supreme Court in 1886. In it the court found that corporations were “persons born or naturalized in the United States” and therefore protected by the fourteenth amendment. What made this finding all the more extraordinary was it was reached without benefit of hearing arguments on both sides of the issue. Supreme Court Justice Morrison Remick Waite simply pronounced before the beginning of argument, “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.” This from the same Chief Justice who wrote the opinion in Minor v. Happersett, which allowed states to deny women the right to vote because the fourteenth amendment did not confer additional privileges and immunities upon citizens, i.e. the fourteenth amendment granted rights to corporations because they were “naturally born persons” but not to women who I suspect the founders thought were responsible for all births of natural persons.
To understand the extreme judicial activism inherent in Santa Clara County v. Southern Pacific Railroad Company remember that the fourteenth amendment was one of the reconstruction amendments written at the close of the civil war. It was written to overturn the Dred Scott case and make certain that states honored the protections of the bill of rights in the US Constitution. Prior to the fourteenth amendment there was no national prohibition on a state denying a person freedom of speech or establishing a state religion. Prior to the fourteenth amendment, the restrictions of the bill of rights applied only to actions of the federal government. The amendment’s connection to ending slavery is clear by its explicit terms. There is no evidence that the drafters intended or even contemplated creating a whole system of protections for corporations. In fact there is an inherent conflict in the notion. Corporations are owned by stockholders, who are “persons.” Does it even pass the straight face test to assert that the authors of the amendment ending slavery intended to hand on rights to a “person,” a corporation, owned by another person, a stockholder? If that had been in their minds, wouldn’t they at least have offered some explanation as to which persons can be owned and which must remain free?
If corporation is a “natural person born... in the United States,” when is this person conceived. We can probably say it’s born when the Secretary of State signs the papers of incorporation, so is it conceived when it is first imagined or when the papers are submitted to the state? If the Secretary refuses to permit incorporation is he aborting the birth? Can he do this only in the first 3 months after receiving the application?
So let’s ask Senator Hatch and friends, if they want to put an end to judicial activism why not begin hearing arguments on overturning Santa Clara County v. Southern Pacific Railroad Company. If stare decisis, the principal of honoring previously decided cases, is invoked, then indeed lets also put Roe in the protected category and just look forward. One of the Republican cause celebs is restricting the rights of stock holders to bring suit against corporations. Where is it written that artificial persons can invoke legal protections against the natural persons who own them? Was that the intent of the Congress that ended slavery? Or consider all the cases in which corporations argue that states cannot regulate them because the federal preempts the states’ power. Republican justices love these cases. Drug company being bothered by a pesky state, just find that the Congress intended, by implication, to take the state’s right away when it passed laws of its own. Really? If you are opposed to judicial activism, wouldn’t you require federal law to be unequivocal and explicit before taking power away from the states? We know that the founders were very solicitous of protecting state rights. When Congress wants to limit the power of the states to legislate, it knows how to do it very clearly. Look at the laws controlling the rights of labor unions organizing private sector workers.
For that matter, where did the founding fathers write down how much a jury in a state court could grant a plaintiff suing a tobacco company? Just how did the artificial person gain the right to be protected from being overly penalized for killing a natural person? You can easily argue that its good law, you cannot honestly maintain that it doesn’t require some serious judicial “law making” to get there.
The truth is that most of the time judicial activism works against the interests of the weak and to the benefit of the powerful. Roe v Wade is just the giant fig leaf behind which this hypocrisy is hidden. President Obama could expose this canard and protect the exclusive rights of mothers all across this great nation by nominating a jurist took the position that the Constitutional phrase “natural born” contemplated a womb and not a wall street law firm.