The Charlotte News

Wednesday, February 2, 1938


Site Ed. Note: As to the point being made in "A Justice Dissents", we agree in theory, although Justice Black's dissent in question in Connecticut General Life Ins. Co. v. Johnson, 303 US 77, made a compelling argument based on the actual language, history and purpose of the Fourteenth Amendment, ratified in 1866 to address the issue of rights of former slaves in the South, persons, not corporations. But we also think it well to remind, especially as corporations have come to enjoy an undue advantage in the courts through time, such that they may have an unjust and altogether sometimes even illegal influence on elected and appointed officials of a low and ordinary and sometimes quite irresponsible and stupid mien, that the individual must be accorded not only Due Process of law in the abstract but objective fairness in both the application and interpretation of the substantive and procedural law, or "due process" is no more than a hollow phrase.

For you may accord someone a hearing on a matter, for instance, which is the typical minimum requirement of Due Process, with a duly constituted board or judicial officer sitting as referee. But, if the conclusion is pre-ordained, because the referee looks to see who has the greater collective influence, that is, who has the corporate or larger law firm, or who is unable to afford representation in a given matter, or which attorney represents a business, which an individual of little apparent standing in the community, then there is no due process: the most important part of Due Process, often forgotten these days, being that matters will be heard before a fair and impartial tribunal which applies the law to the facts at hand regardless of the persons before it--whether rich or poor, politically powerful or not. That is to insure respect for justice and the justice system and the courts.

Take a poll among our citizenry these days and you will find that the average person believes that the courts are due about as much trust and respect for the average individual's rights as would be a used car salesman. Why is that? Well, once we lose an independent judiciary to the whims and fancies of corporations, the public as individuals lose confidence that the system will any longer work for them against the will of the corporation, and thus the corporation's will runs rampant, unchecked through society, and the thing snowballs apace, feeding on itself. And such a state of affairs leads to the negation of an independent judiciary, setting society on a decided road to a corporate state; and a corporate state is fascism, pure and simple, syndicalism being the founding principle of fascism. And, we put to you, that we are perilously close to that state, if not there, having lumbered, fallen, inched and stumbled, cruised, pulled up short, started again, inertially proceeding toward that end in varying fitful measures for the last century and more, since the end of the Civil War.

And, of course, the sales technique utilized to bring us there is simply understood. It may be understood by viewing Matthew Brady's photographs. The fresh wounds of battle-scarred veterans home from the field, and treading the streets and roads of every town and village in the land, and the pikes which led them there, told the tale--armless, legless, faces barely recognizable in some cases, if they came back at all, leaving no family untouched of the carnage. The sale thus was easy: punish the South, rebuild and harness its resources, and gear the age to pursuits which could forever insure that such a horror would never again repeat. Of course, it was not quite so conscious probably in its collective intents as the aftermath sees it analytically. But its original impetus, however conscious or unconscious, is not hard to fathom.

That done and accomplished long ago for the most part, the rebuilding, the harnessing, the locomotive which pulls the train has taken on such an incorrigible and momentous life of its own that the very world environment itself now stands imperiled by its callous discards of the past and the present, eroding the ability of the earth to replenish itself in natural order, enveloping the earth in celestial glass from which all its excessive exhalation is reflected back to cook us as in a broiling oven.

So, what can be done to arrest this train, to return to the original concept of Due Process and Equal Protection and have it play out in practice every day in courts across the land, such that the law and not prejudices of its human arbiters reside as the determining force of right and fairness, such that even the planet itself might be saved before it is too late?

There is only one primary solution, and that resides in the power to vote.

It is best we pay more careful attention to whom we are voting for when it comes not only to major elected officials but also to local officials and judicial office holders. Ask around, not corporate lawyers who want their bagmen on the bench and in the various elected political posts, but rather the ordinary people in your community and the individual attorneys who primarily represent only individual litigants or criminal defendants. These are the people most likely to provide honest answers as to who is fair and who is a de facto representative for the corporate interests. Returning power of oversight to individuals at once also cathartically insures that the courts will recognize the interests of individuals generally again, and be less swayed by the power of the corporate pocketbook.

It is wise, too, to be wary of great movements, especially those sponsored by large moneyed interests, to the end of unseating particular jurists based on single-issue campaigns pressing emotional hot buttons, such as that a particular judge is "soft on crime" or, by implication that the opponent is "tough on crime", when what is really meant is that the so-called softie does not cow-tow to the corporate desires of stripping individual litigants of their rights, in favor of the corporate stance.

It is little different from amending the Constitution to eliminate the Fifth and Fourteenth Amendments, to remove the Due Process Clause, to insist that due process be applied willy-nilly to afford certain litigants fairness while allowing judges to deprive others, usually individuals without means or financial backing, of all but the grossest outline and semblance of fairness, a hearing, but one with a pre-determined outcome by virtue of who the parties are or who their representatives are, not by what the law is which governs their respective rights.

If a corporation insists on the benefits of Due Process under the Fifth and Fourteenth Amendments, it must also shoulder its responsibilities fully as a citizen, including refraining from criminal conduct, drunken, derelict behemoth out of control in the streets though it often becomes, bribing public officials, either legally with large campaign contributions passed surreptitiously through various blocs of employees who have no choice but to do Mama's and Papa's biding, or under the table illegally, as with promises of jobs with lush salaries to retiring legislators when they return to the private sector, for letting this or that industry get by with this or that systemic practice of cheating the public or polluting the earth or continuing, against contrary available technology, to manufacture the widget which pollutes. In short, corporations must also have instilled within their collective thinking, as with any individual in society, a social conscience. We see a lot of bad parenting where Mama Corp is a drunk and Papa Corp is not only a drunk dope addict but also a gun-wielding nut who likes to play Russian roulette with his own life and that of the rest of us, so drunk with megalomania, bored with his creature comforts, and hard-put to live with his conscience, has he become. Consequently, the Children of the Corp family tend to be wild and irresponsible, caring little about their customers, indeed, deriding their customers ruefully, and doing whatever nefariuous conduct Mama and Papa order, up to and quite including being the conduit for outright bribes to public officials.

Ever felt yourself picked on for some ridiculously picayunish matter by a public emnployee, while, at the same time, it so happens that the mortgage company is seeking to foreclose? It is not mere coincidence.

Solution? Get your Congressman or state legislator behind a Code of Corporate Ethics, codified into law, just as with the medical and legal professions, and most other professions, and a local or state board set up to enforce it by receiving and adjudicating consumer complaints, whether individual or en masse regarding corporate misconduct under this new code, with the power to issue orders to the corporation to restrain the continuance of the conduct and to issue substantial fines for the violations. If your Congressman or state legislator responds with condescension or fails to respond at all, then next time he or she comes on the ballot, exercise your franchise accordingly--for you know who is feeding the kitty on that one, and it is not fairness and justice or even any scant semblance of democracy.

The rest of the page is here. Speaking of Due Process and unruly and absurd interpretations, would that illegal pack of cigarettes with an unbroken seal depicted in the Ripley's not to this day afford, in a most technical sense, probable cause to a police officer for an unlimited search of the person and all personal property within his or her immediate reach? Well, candidly, since we don't smoke, we haven't ever read one of those seals. So, we don't know whether the opening of the package without breaking the seal remains technically a crime. Best read the fine print. And that is ever more the case since the good faith exception, protecting police officers from suit and application of the exclusionary rule if they act in "good faith" to obtain evidence, was carved into the Fourth Amendment in the 1980's by a Supreme Court majority sold to us as "commonsense judges who would not legislate from the bench", even if we don't see "good faith" as a limitation to the reasonableness of a search and seizure under the Fourth Amendment's language.

What this good faith exception essentially does is to change the standard from an objective analysis of the reasonableness of the search or seizure, determined by pre-established rules from earlier cases, to a rule whereby the reviewing court may look to see whether the officer reasonably believed there was probable cause for the arrest or search, even if the belief was not founded on strict application of the rules applicable to searches and seizures previously set in place by the courts. While still on its face requiring an objective analysis, it practically enables a very subjective, case by case view of the law of search and seizure, including determinations of the validity of arrests, to the point of potentially being an exception which fully erodes the Fourth Amendment entirely. It is the escape clause; for what police officer in his right mind is going to conduct an arrest and do a search and then provide testimony which would defeat his own good faith belief in the right to do the search under the law in the first place? While, the courts still look to the case law to determine whether there was good faith, and, plainly, mere hunches are not enough, the scrutiny is generally not as tight and thorough as before the good faith exception came into being effectively to shield sloppy police work compromising individual rights. Better remember to break those seals, or, even better, give up smoking altogether.

As to the little poem on the page today, we might add a few lines:

But, even so, and though it be true,
To sell out wholesale to whatever comes
For friends, would be to rue
That day finally when war will dumb
Its way to show what's real:

So long to friends, so long to heart,
So long to all who supplied you art
For it was to "friends", not fair zeal
To which you sold your lonely part.

And all we must go back to dust,
In solitude among the soil.
So true it is, not loam to clay may
Vitalize the bust to living's sway.

That coil be governed by the words,
Not ruled by friends' imperfect cue,
Of what is written in the law before,
Not soiled by the foot means at the door.

And so we say, not in happenstance,
Be true to justice, not merely friends,
For long life and free, and beyond the end,
As "friends" do not give sol's recompense:

Chasing shadows in a hoarfrost's woodland den,
Singing by the friendship keys of past coincidence.
For from the long greyed land's soul to heaven's mixed
Last sand's ascent, that shadow we chase is fast:
It is in name but that which fanned the toll of '76,
Elusive, yet to which each fallow face is cast and fixed.

This Much, Anyhow

The Shelter Belt is still being planted. This season's schedule calls for 4,250 miles of trees to be set out in mile-wide strips across the Great Plains, in an endeavor to atone to Nature for turning grassy lands into a dust bowl to be blown about with the winds.

It has been found in the three years of tree-planting that well over two-thirds of the trees will live. And that is about the only thing that has been found, for these are forests of mere striplings yet, and their benefit is confined to limited areas directly alongside. Nevertheless, it is a great experiment, and it will be not wholly a fiasco even if it fails to restore the lands, to break the force of the winds and to make habitable again the homes of a great farming people. For if miles of trees live, why, there are miles of trees where no trees were before, and that is something, it must be admitted.

A Justice Dissents

Black, J., was the lone dissentient from three decisions handed down by the Supreme Court Monday. The Justice thought that the 52-year-old interpretation of the Fourteenth Amendment which places corporations under the protection of guaranteed "persons" was all wrong and ought to be destroyed. For he said, corporations obviously are not in fact persons.

In that, too, the Justice is right, too--so far as he is explicit. Corporations manifestly aren't in fact persons.

And yet--. We suspect that the Justice was not nearly so explicit as he might have been. The chief current argument for depriving corporations of legal protection under the Fourteenth Amendment runs to the effect that "human rights are superior to property rights." That is almost a credo with the New Deal, and Justice Black in his career in the Senate was one of its most vehement exponents. So it seems fair to believe that that was really what Justice Black was getting at in his decision.

But ah! now; having got to that, let us see. Corporations are not strictly persons, no. But neither are they disembodied abstractions. They are simply aggregation of persons who have pooled their property, under limited liability, to achieve what none of them could achieve alone.

Well, and the protection guaranteed under the Fourteenth Amendment is--what? Just this, that no person shall be deprived of his liberty or property without "due process" of law. It says, quite specifically, that is, that property is a right to persons--a "human right."

Is it to be said, then, that, because persons have chosen to pool their property, they ought to be stripped of this "human right," and made open game for expropriation without "due process of law"? Ourselves, we don't believe it. In fact, we do believe that property rights are a direct outgrowth and codification of human rights, and therefore cannot be separated except "by due process of law."

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