By Phasma Scriptor
The documentary produced by Joel Bakan, Professor of Law at British Columbia University, “The Corporation: The Pathological Pursuit of Profits” (The Corporation Film: Joel Bakan, 2003) (“TC“), attributes a psychological condition, specifically, Antisocial Personality Disorder, to the manner in which corporations frequently behave (and, ultimately, always behave since only the most pathological of corporations thrive and, as a consequence, are able to cannibalize less pathological organizations). Maneuvering corporations into psychoanalysis, that is, in a courtroom setting, would have a potentially devastating effect on the willingness of predatory corporations to commit what would be considered heinous crimes were the perp to belong to the company of real live humans. Because of the ability of corporations, in general, and certain corporations, in particular, to defrock attorneys for arbitrary and capricious reasons, litigation of that magnitude would need to attract attorneys with the integrity of the legendary Untouchables. Possible, but unlikely without some reasonable way, even with the odds adversely stacked, to a W as the desired outcome.
Part of that path would have to include, inter alia, the initiation of a Katy-storm-the-ramparts public relations blitzkrieg on the Internet to provide a loud and raucous chorus of web-based supporters. Parallel to the e-path, organizing “spontaneous” scenes in TC similar to those defiant Bolivians, oppressed by one of those corporations, Bechtel, is the kind of backs-against-the-wall, us-Davids-against-the-Goliathan physical presence that encourages nicely irksome “film at 11” media coverage, even though, as the blogosphere has informed us, Internet PR is almost as effective as takin’ it to the streets. A more socially beneficial use of flash mobs organized via Twitter would quickly direct demonstrators to the appropriate courthouse steps, where handbills, rapidly produced on site, could be distributed to the litigation faithful for passing out to passersby, but especially to courthouse denizens. Judges prefer to operate “in closet” and not with mug shots on leaflets that become viral as those leaflets give courthouse copiers a workout and reporters a convenient press release. Mudslinging high-rent PR firms that pimp for the commercial behemoths meet your populist, on-the-cheap, street-fight match.
Corporate officers and their corporate lawyers, engaged in the long con rising, like a specter, from the collective id of the corporations, have plotted, as pawns for the ultra-super-rich, for over a century-and-a-half to transform totally artificial entities into real live humans, sort of a wicked-Blue-Fairy-morphs-Pinocchio-into-Stromboli vision of terror in an economic eclipse of civilization; the recent US Supreme Court decision (Citizens United v. Federal Election Commission, USSC No. 08-205, 1/21/2010, 08-205 Citizens United v. Federal Election Comm'n (01/21/10)) which purports to allow unlimited corporate contributions to political candidates, has seemingly finalized the imputation of real live human status to corporations, an ultimate legal term of art … based on Dr. Frankenstein’s concepts of what constitutes human life.
Citizens United mainlines right into the cold-blooded veins of Richard A. Posner, former Chief Judge of the US Court of Appeals for the 7th Circuit and still pontificating after all these years, who is the putative father of the judicial theory of economic efficiency (Biography - IT Services: Documentation - home.uchicago.edu). According to this so-called judicial theory, a euphemism for radically activist judge-concocted, separation-of-powers-busting legislation from the bench, litigants with the greatest financial prowess ought to prevail more often than not with the result that litigants whose financial resources are exhausted first can’t afford justice. This flows, like hot lava scorching its way downhill, from the cautionary tale of the very common judicial put-off that the pathetic slob of a plaintiff/defendant must exhaust all his/her administrative remedies before the courts will hear the case, meaning, of course, that the poor will always lose to the defendant/plaintiff with a massive bankroll, meaning, of course, big business, since what gets exhausted first is the wallet of the impecunious litigant. Thus, presuming to give the judiciary the discretion to weight rulings based on pocketbook factors (fatter being better), which would be unconstitutional (per the 14th Amendment, FindLaw: U.S. Constitution: Fourteenth Amendment, to say nothing of Deuteronomy 16:18-19, Deuteronomy 16:18,Deuteronomy 16:19 - Passage Lookup - New ...) if written into statutes, is an invasion of legislative authority; a purposeful intention to favor the rich and/or the powerful (like the king who is not permitted to do wrong, according to Par. 61 of the Magna Carta, Amendment I (Petition and Assembly): Magna Carta, c. 61) is so foreign to the basic tenets of equality upon which the US was founded that ripping the fabric of this society seems an apt metaphor. (Note: The word “unconstitutional” is used in the relative sense, since, as will be shown in a future post, the Constitution of the United States has been knocked out of the box)
That sneaky, weasel-y Supreme Court judges might aspire to dominate the other branches, after sucking the authority of the states dry, was the subject of Anti-Federalist Papers Nos. 11, 1/31/1788, and 12, 2/7/1788 (The Essential Federalist and Anti-Federalist Papers - Humanities), penned by "Brutus", the nom-de-plume widely thought to have been New York State judge Robert Yates, a delegate to the Federal Convention. Yates went further than that old politician’s tale about absolute power; he described the collegial intergenerational spirit of the brethren (and, now, sistern) in the art of grifting and grafting in high political places:
Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors … [AFP, No. 11]
This sort of putrid process bears the distinct stench of the Pharisees, acridly arising into the noses of those who are really supposed to be in charge, which would be, purportedly in this country, the People. What Yates/Brutus foresees is the usurpation of ever more power by the supreme court pursuant to the gifting of a wide “latitude of interpretation” by the proposed Article III (FindLaw: U.S. Constitution: Article III), far beyond any boundaries of the separation between federal, State and local governments.
[T]he same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. [ibid]
Would the judiciary and its cherry-on-top, the Supremes, operating under this maximizing principle, ever stop extending and increasing their sphere of authority? Well, yeah, saith Brutus, when they had totally subjugated the States, which, by the provisions of the proposed constitution would be made inferior to the federal administration.
[T]he leading features of [the judicial branch as set forth in the proposed Constitution] will operate to a total subversion of the state judiciaries, if not, to the legislative authority of the states.
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The judicial power [of the supreme court] will operate to effect, in the most certain, but yet silent and imperceptible manner, … an entire subversion of the legislative, executive and judicial powers of the individual states. … In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted. [ibid, emphasis added]
But, would the judges and so-called justices restrain themselves after bringing the States to heel? NO! But not because they loved subverting the States less, but that they loved subverting the federal executive and legislative branches more.
If Yates had extended and increased his own line of reasoning into, what was apparently for him, the unthinkable or, at least, the unmentionable, he would have come to the conclusion that the logical end of that line would be the conclusion, be the final chapter, be the see-ya of the proposed free nation as a free nation, wherein, the federal judiciary didn’t just subvert the States, but also both of the other federal branches … and, by that means, subvert the People themselves, who, after Citizens United, are looking pretty pathetically powerless.
Yates goes on to explain how these judges and so-called justices, empowered under the proposed Article III, would have a ready, recent model.
[The federal judges] will have precedent to plead, to justify them in [their usurpations]. It is well known, that the courts in England, have by their own authority, extended their jurisdiction far beyond the limits set them in their original institution, and by the laws of the land. [emphasis added]
When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? and they are authorised to construe its meaning, and are not under any controul? [ibid]
When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? and they are authorised to construe its meaning, and are not under any controul? [ibid]
(Note: Brutus makes a bru-boo by stating that the kings, er, the judges of England could “by their own authority [extend] their jurisdiction far beyond the limits set them in their original institution, and by the laws of the land.” No such “authority” existed; what is described is a usurpation of authority, that is, stealing the authority.)
So, past is prologue, especially where precedent is king … and queen, rook, knight, the whole damn chess board. As I’ve suggested above, the more appropriate historical path for comparison would be the subversion of the Laws of God, the Torah (The Torah), by the Pharisees (Matthew 15:1-20 - Passage Lookup - King James Version .) whose slow-cook-the-frog techniques, amongst the longest of long cons, successfully turned the divine Commandments on their head, which Yates states as, “This power in the judicial, will enable them to mould the government, into almost any shape they please.” [ibid, emphasis added]
Clearly, Brutus was an honorable man … and a prescient one whose perceptions have been fully justified by, in the last instance (and the last straw), the Roberts-cum-Kennedy Court.Retired US Supreme Court Justice Sandra Day O’Connor has been on the stump since before the ruling in Citizens United, advocating for judicial independence. That decision has given new urgency to O’Connor’s campaign to prevent campaign contributions from unduly influencing candidates for judgeships, an issue pertinent to the more than 80% of State judges who are subjected to the political election process during their judicial careers.
“‘This rise in judicial campaigning makes last week's opinion in Citizens United a problem for an independent judiciary,’[O’Connor] told an auditorium of lawyers and Georgetown University law students in Washington [DC]. ‘No state can possibly benefit from having that much money injected into a political campaign.’” … The issue was highlighted most recently by a case in West Virginia featured in an ABC News investigation. In that instance, a mining executive waged a multi-million dollar advertising campaign to elect the swing justice on the West Virginia Supreme Court. The judge then presided over a case the executive’s company had appealed to the court. [Matthew Mosk, O'Connor: Citizens United Ruling 'A Problem' - ABC News, The Blotter from Brian Ross, 1/26/10]
That WV case involved the re-election of West Virginia Supreme Court of Appeals Justice Warren McGraw, running against Brent Benjamin, a shill for pathological profiteers, in the 2004 general election. It was thought by various pundits that the deciding factor in that race was the unhealthy sum of $3.5 million that Massey Energy [a huge WV coal mining corporation] CEO Don Blankenship dropped into the coffers of an advocacy group, deftly titled “And for the Sake of the Kids”; altogether now, awww! Very generous, Massa Don … however, lest ye get misty-eyed, “Kids” was formed, under the non-profit Section 527 tax-dodge provisions of the Internal Revenue Code, by Blankenship himself for the purpose of running attack ads against McGraw, underscoring the sickening smarminess of the PAC’s title.
The term “swing justice” as applied to McGraw referred to his propensity to rule in favor of workers and against coal mining companies and their union-busting practices (at least in the case of Massey, under the dictatorial Blankenship); according to Washington pundit Michael Tomasky, a native of WV where the threat of getting a lump of coal for Christmas originated [citation needed], McGraw’s support of the easily oppressed coal miners from his spot on the bench was a plus.
Among the other major supporters of Benjamin was the WV Chamber of Horrors, er, Commerce, although its donation amounted to less than 1/8 of Blankenship’s Mass-ive total. [ibid] Thus, despite Blankenship’s claim that he supported the PAC on a moral high ground, a more recent USA Today editorial opined that Blankenship’s less noble reason for going after McGraw by stirring up save-those-kiddies passions “vividly illustrated how big money corrupts judicial elections. It puts justice up for sale to the highest bidder.” [ibid] Cue the bringing down of the gavel … SOLD to the guy with the blood of coal miners on his hands!!!
This is a rapier point described indirectly by Yates/Brutus, driven home with a WV coal miner’s sledge hammer. Yates presumes the high probability that “the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance. From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favour it; and that they will do it, appears probable.” [AFP No. 11] What Yates does not say, with a high probability that he was perfectly well aware that, since ever judges had to decide cases with lots of money, power and/or prestige at stake, they have been offered bribes (“emoluments” having been Yates’ happy talk for bribes) … and, more often than not, taken them; cf. Amos 5:12, Amos 5:12 For I know how many are your offenses and how great your ....
Had Yates been able to stroll through the future scandals of the Supremes, he would have tripped over Charles Warren’s Pulitzer-Prize-winning book, The Supreme Court in United States History (Little, Brown, and Co., Boston, 1922; currently available online via Google books, The Supreme Court in United States history - Google Books Result), which delicately (in a Harvard Law sort of way) showcased the filthy, and rather indelicate, lucre in which the “justices” were regularly awash, up through the 1920s, when Warren’s account ends. As Caperton v. A. T. Massey Coal Co., No. 08-22, June 8, 2009, (Caperton v. A.T. Massey Coal Company, Inc., et al.) and Citizens United, amply demonstrate, they are awash still, since I’m unable and very unwilling to separate WV rough justice from USSC political justice. “Justice up for sale to the highest bidder”, indeed.
Of course, Justice (my soul aches to have to call this whore “Justice”) Benjamin … wait a minute, Benjamin, J. (insert your own meaning for “J.”; I did), had been sitting on the WV Supreme Court panel in Caperton v. A. T. Massey Coal Co., when, on June 8, 2009, the U.S. Supreme Court issued its ruling, a 5-4 decision, that the “serious risk of actual bias,” implicated the Due Process Clause, requiring the recusal of Benjamin, J. What had precipitated the Writ to the Supremes was a fairly commonplace reaction of a member of the bench - a refusal to recuse, which the New York Times described as "egregious ethical myopia" on the part of Benjamin. [ibid]
The wonder wasn’t the ruling against Benjamin, but that the Roberts Court, fortified with a quartet of pro-corporate hacks (sorry if you’re offended by my disdain for Roberts, Alito, Scalia and Thomas, Js all), came down on the side of … oh, wait a minute. Among those parties filing amicus (friend of the court) briefs were behemoth corporate soon-to-be-real-live-persons Wal-Mart, PepsiCo, Intel, and Lockheed Martin, which all lined up with Common Cause and Public Citizen in recommending that the WV decision in favor of Massey be tossed. So, actually, the Supremes’ decision was 4-1 against Massey, that is, effectively, Wal-Mart, PepsiCo, Intel, and Lockheed Martin v. Massey. The unspoken dynamic for the four amici amigos was clearly, geez, we don’t use coal (especially not Lockheed Martin jets, since coal makes a godawful noise in jet engines), screw Massey. Heck, we could use the cut-rate PR (as in propaganda) pump for our own sagging-to-off-the-radar corporate images.
The “swing” justice on the U.S. Supreme Court, Kennedy wrote the opinion for the majority; the dissenters (guess who?) backed up Roberts and Scalia; oh, yeah, I just gave you two … OK, so guess the other two. The latter weren’t exactly paying heed to the Conference of Chief Justices; in the Chief Justices’ amicus, they claimed to be neutral. Neutral?! “The Conference takes the position that, under certain circumstances, the Constitution may require the disqualification of a judge in a particular matter because of extraordinarily out-of-line campaign support from a source that has a substantial stake in the proceedings.” [Caperton v. Massey | Brennan Center for Justice]
The usage of the word “disqualification” was provocative since, in reading the Federal Rules, the language of the disqualification provision, 28 USC 455 (28 U.S.C. § 455 : US Code - Section 455: Disqualification of ...; ...; 28 U.S.C. § 455 is "directed to the judge, rather than the parties, and is self enforcing on the part of the judge." US v Sibla, 624 F.2d 864, (9th Cir 1980)), provides that the act of disqualification is to be self-enforcing, that is, a motion for recusal shouldn’t even be necessary where the prejudicial factor is “extraordinarily out-of-line” as in, “Hey, dumbo, see that Exit sign … need we say more?!!” There isn’t any necessity for this “move the court” stuff. The alleged scholars who panned this decision did so on the basis of the recusal provision, a typical bait-and-switch when the party moving for recusal does so before a judge who knows which side of the “versus” his bread has been buttered. A Notice of Disqualifying Circumstances (in cases where I was the, uh, notifying party) always comes out of the subject judge’s mouth as “We’re here today on your motion to recuse me.” Duh. No. We’re not!
Massa Don wasn’t so good for the career of another of the brethren of the WV Supremes, demonstrating a pattern and practice in a sort of how-much-is-that-judgie-in-the-window routine. In April 2008, while jet-setting in Monaco, Massa Don and Elliott “Spike” Maynard, J. (what self-respecting judge calls himself … oh, that’s right, for Maynard “self-respecting judge” should be an oxymoron) were paparazzi-ed with copies of those pix getting published in the NYT scandal sheet edition.
When a member of Brian Ross’ crew tried to ask Massa Don, after arriving stateside, about those pix, Massa Don spiked Ross’ guy with an assault, “If you're going to start taking pictures of me, you’re liable to get shot!” with the videocam rolling. [Mosk, ibid] After the coal dust cleared following the election that May, Maynard was Maynard, ex-J., [Brian Ross Investigates, 5/14/08, Controversial State Judge Loses Re-Election Bid - ABC News] although he was apparently still a full-blown J to the majority of WV voters. For purposes of the litigation herein proposed, Maynard would be just a willing victim of psychopathic Massey Energy, under the direction of its psychopathic CEO, providing ample proof of same for the record.
Since corporate officers have insisted that corporations be treated exactly like humans, then their behavior must also be treated, with equivalency, to the behavior of real live humans. Although the decision in Citizens United “represented a sharp doctrinal shift” [Justices, 5-4, Reject Corporate Spending Limit, NYT, 1/22/10, e-edition], that decision also provided ammunition for an attack utilizing the corporation-as-psychopath theory, with a brutally Brutus-twist of the dagger.
Swinging away from Caperton in writing for the radically-activist conservative majority, Kennedy, J., expressed the position that the First Amendment (as amended by Citizens United) “prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” [ibid] Kennedy, like all the justices (or their respective law clerks), is an accomplished wordsmith; he didn’t accidentally leave out phraseology which would have more properly asserted, with actual wording from the constitution, that “the First Amendment prohibits Congress from making any law which abridges (such as by fining or jailing citizens, or by fining associations of citizens) for simply engaging in protected speech, including, but not limited to, political speech.” [cf. actual First Amendment language to Kennedy’s amended First Amendment] Of course, per the future discussion of the subterranean abolition of the constitution, why not attribute any wording you prefer to the constitution since, per the prescience of Yale/Brutus, these Js have given themselves an unlawful license to “[extend] their jurisdiction far beyond the limits set them in their original institution, and by the laws of the land” but without jurisdiction.
Kennedy’s hacked 1st Amendment language referenced above is a part of the holding [Citizens United, syllabus at 2.(c)(1)]; in misstating the underlying reasoning so miserably (but with cunning), Kennedy actually argued that Congress itself, not via its constitutionally-authorized function of making law, cannot directly fine or jail citizens or associations thereof for political speech, thereby imputing to Congress a similar sort of super-activism in which the Supreme Court purported to engage in Citizens United via the unconstitutional situation in which Congress might act like a judge who does directly fine or jail individuals. Of course, without more, my position could be deemed hair-splitting. The question is, “Where, oh, where, Kennedy, J., is your hair being split between Caperton and Citizens United?”
O’Connor gave us her outlook for the dichotomy in Kennedy, J.’s hair in her Georgetown comments from January of this year. “We can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election,” she said. “And maybe tobacco firms and energy companies have enough to win the next one. And if both sides unleash their campaign spending monies without restrictions, then I think mutually-assured destruction is the most likely outcome”, an outcome referred to as the “collision course” point of impact between Citizens United and Caperton. (Andrew Clevenger, O'Connor on Citizens United and Caperton: “a warning” on judicial, 1/28/10, emphasis added) There is, according to O’Connor’s justifiable rant on the subject, a serious conflict between the two cases, both of which had Kennedy’s stamp on them. Accompanied by a term (“mutually-assured destruction”) usually reserved for nuclear winter, O’Connor informs us that this hair isn’t going to be split, it’s gonna be ground zero for the schizophrenic Roberts-cum-Kennedy court.
O’Connor echoes the Brutus/Yates’ threshold caveat about Article III being so wielded as to undermine State judiciaries; however, she doesn’t approach the harsher Yates who cautioned that there would be a silent but deadly suffocation of all State authority and, of course, neither did she reach the horror of the subjugation of all other federal authority by Article III conquest. This is the up-with-absolute-judicial-power, down-with-government-of-by-and-for-the-People dynamic previously noted as having been described by Yates.
The first conflict, implied by O’Connor though not specifically set forth, is the side-by-side of the unlimited contributions supposedly allowed pursuant to Citizens United and the disallowance of “extraordinarily out-of-line campaign support from a source that has a substantial stake in the proceedings” pursuant to Caperton. What Citizens United allows is unlimited and, therefore, theoretically extended out to infinity, subject, of course, to the depth of the pockets and the psychopathic drive of the corporate contributor, whereas, what Caperton disallows may be “extraordinarily out-of-line” but is, nevertheless, limited. Hence, the greater-than sign between the maximum bribe allowed to each branch is pointing in the wrong direction. Of course, with some clever manipulation, the two-headed Kennedy could wriggle out of this conundrum of judicial fuzzy math, but, the strategy of litigation, with the vital, nasty PR campaign in close tow, proposed herein shouldn’t permit any wriggling.
The second conflict was briefly touched by the Prez (albeit with his pinkie finger) in his State of the Union Address, delivered January 27; State of the Union 2010: President Obama's Full Speech Transcript. Prefacing his remark with “all due deference to the separation of powers” was, to say the least, anemic, with all due deference to the Chief Executive, who, as a professor of constitutional law, should be blow-it-out-your-ears steamed at the real meaning of these two rulings, to say nothing of the reality of the Presidency and the Congress getting simultaneously jammed by the Supremes. Citizens United provides less-than-zero deference to the separation of powers; more bluntly, the evil twin Citizens United Kennedy spits on the good Kennedy and flips him the bird for bad measure. In imperious response to Obama’s call for Congress to legislate corrective measures, Alito, J., shook his head as though he was admonishing … well, the good CapertonCaperton Kennedy-as-naughty-boy. Kennedy wasn’t in attendance, otherwise, he would have required two seats.
In Citizens United, the Supremes didn’t merely breach the separation of powers (Separation of powers: West's Encyclopedia of American Law), they ran an M1 Abrams through the walls purportedly protecting both the Congress and the Presidency from encroachment by the judiciary. Encroachment? Did I say encroachment? I meant … let’s see, what’s a catchier version of “deployment of deadly activist judicial nuclear artillery shells.” Hmm.
Whereas Caperton effectively promulgates a federal rule against “extraordinarily out-of-line campaign contributions” in judicial elections, thus, protecting the judicial branch from the dangers of corrupting the political process on their side of the protective walls of separation of powers, Citizens United purports to permit those same corrupting influences in unlimited amounts, that is, theoretically beyond “extraordinarily out-of-line campaign contributions” in elections for both legislators and for executives. So, the evil-twin Kennedy and the good Kennedy aren’t really so schizophrenic after all; they’re one and the same constitutionally infirm son of a bitch, unleashing the worst pair of decisions, which should be viewed as one, to ever violate the separation of powers.
Mitigating this disaster via the waiting-for-Congress-as-Godot legislative route has no more potential than trying to resurrect the miners murdered by Massey CEO Massa Don via the administration of CPR. Brutus/Yates correctly surmised, for his time, that “[t]he opinions of the supreme court … will have the force of law, because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal”; however, the principles of equity, mandating a remedy where the law provides none (especially where equity has been supposedly abolished in favor of a mongrel jurisdiction, that is, the alleged extra-constitutional jurisdiction as described by Justice Harlan in his “majority” dissent in Downes v. Bidwell, 182 US 244 (1901), at 374, et seq.; Supreme Law Library : Court Decisions : Downes v. Bidwell : index), when manipulated by a creative legal mind in the era of instant verdicts in the worldwide public forum of the www-dot.
We are reminded of another recent model for which Yates, perhaps because of his brotherly, Brutus-ly, reticence to go there, does not give proper consideration - the impeachment, specifically, for our times, the impeachment of Clinton … but, pointed, in this case, at Kennedy for his singular devotion to the two-pronged forked tail of Caperton and Citizens United that simultaneously (and with treasonous contempt) stabbed the federal executive and legislative branches. A monster IT-aided pushback on the attempt by Kennedy, et al., to usurp the whole ball of wax would necessarily have to include a ballistic internet launch against this coup d’etat by the Roberts-cum-Kennedy Supreme Commanders.
Which brings us to the pursuit of direct remedies via prosecution (e.g, the Upper Big Branch victims ex rel. the SEC, a la RICO) of the Massey corporation and its CEO, Massa Don Blankenship or, slightly more recently, Tony Baloney Hayward and the latest BP serial murders in the Gulf, as psychopaths, used in conjunction with really up-theirs viral internet PR utilizing the forgotten instrument of the petition, dressed up as e-petitions to Congress, for redress of grievances, would open up a new avenue of gaining remedies foreclosed by, e.g., West Virginia statutes and federal statutes rigged to prevent court rulings favoring the miners and the regulatory sluggards, guilty of gross negligence, entrusted with offshore-oil-drilling oversight. If the Roberts-cum-Kennedy Court can be exposed to the e-winds of un-change via this means, then even Citizens United might be brought down; after all, it’s just a house of cards, there having been no physical revolution, only the revolution of paper tigers, who are, nonetheless, subject to impeachment, both literal and virtual.
In the reasoning given in the Citizens United holding, the Court, via Kennedy, the J., purports to be able to prophesy that “the appearance of influence or access [via campaign contributions] will not cause the electorate to lose faith in this democracy”, providing no actual authority for this magical power. [Citizens United, syllabus at 2.(c)(2), where the reasoning in Citizens United is distinguished from that of the referenced cite.] This strange bit of logic is addressed in TC (by Noam Chomskyl see, also, MANUFACTURING CONSENT: A PROPAGANDA MODEL BY EDWARD S. HERMAN AND NOAM CHOMSKY) under the topic of how, in a civilized society, the masses can be persuaded to be passive followers of the power elite - via propaganda, spewed with the ejaculatory power of the obsessed-possessed in “The Exorcist”.
The proposition that “[r]apid changes in technology - and the creative dynamic inherent in the concept of free expression - counsel against upholding a law that restricts political speech in certain media and by certain speakers” [Citizens United, ibid, at 2(d)] is ass-backwards, demonstrating a disdain for the cognoscenti of e-speech, who understand that by its nearly instantaneous delivery, speech of all kinds can become viral and, therefore, can be the equivalent of a worldwide shout of “Fire!” in a crowded internet, where the most confrontational or sensational or scandalous speech gets the most hits. Under this heretofore unknown dynamic of e-propaganda, the loss of faith can be ramped up in less than a day; restoring that faith, as has been amply shown in the era of FoxNews, Drudge and the right-wing-nut funny e-farm, is slow, oftentimes to the point of irreparable harm. These e-characteristics counsel for far greater care in restricting political speech. The current vile tactics of lies and deceit utilized by the super-right-wing birthed out of the latent racist hate, (think Rosemary’s baby) so long hidden and waiting to re-emerge like chicken pox viruses, after decades of incubation, transformed into shingles.
Thus, Kennedy appears to hope that no one notices the battering our now ghost of a constitution has suffered from the double-barreled constitutional siege weapon of Citizens United and Caperton. He hopes no one sees the bloodless usurpation of power that’s been perpetrated. Yet in this fond and childish hope, Kennedy, Roberts, et al., when the inadequately thin curtain is drawn back, will be shown, worldwide, for the subversives they are, of the breed that Brutus/Yates accurately predicted would be spawned so long ago. That the issue of the Kennedy-authored revolution must be an equal partner in the litigation of either or both Massey and BP is paramount with the aim at overturning, at very least, in practical effect.
The necessary execution of an upload/download blitzkrieg about this proposed litigation-cum-prosecution would demonstrate that Kennedy is a false prophet of the new religion of the Supremes as deities and would provide the mechanism for combating the inevitable Internet debunkers of the theory of the case, which must also be vigorously tried in the present global e-court of public opinion where, now more than ever, the first impression of a case of first impression is a crucial pre-emptive gotcha. The biggest prize in that contest are the victims of the collective corporate psychopathic id, namely, the quantum heart-and-mind of all of us that can prevail over any financial juggernaut that has money as its reality. The e-community possesses infinitely more virtual reality. Just unleash it.
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In the 1st version of this proposal, the suggested target for litigation was Massey Energy as a real live psychopath; however, the intervening catastrophe in the Gulf has displaced Massey as the corporate villain of the moment. Both the Massey Energy and the BP are ideal candidates for the proposed litigation with accompanying independent Internet PR campaigns, highlighting the specifics of the litigation, including, but not limited to, the pathological concepts from TC. The case of first impression tried for the first time via e-strategy.
In the fantasy of legal fiction, where a pathological corporate liar is found to have harmed other real live humans with its lies, then there must be a remedy via litigation. Where the harm is more serious, then the remedy must also be more serious with punishment arising to the level of criminal sanctions, such as the equivalent of imprisonment or institutionalization, as would necessarily be imposed on the criminally insane, requiring proof of rehabilitation prior to permission to re-enter polite society and do polite things, like contribute to political campaigns. Where the crime is found to be in the nature of a capital crime (separate and apart from the necessity to drag the sad carc-asses of, e.g., Blankenship and Hayward, into an appropriate prosecution), then the equivalent of execution, dissolution of the corporation via, say, a forced Chapter 7 liquidation in bankruptcy court, would be an equitable resolution.
In all such litigation or prosecution, the responsible corporate officers and their invisible regulators would have to be on the hook for comparable or equivalent punishment. After all, as TC points out, CEOs (as well as the AWOL regulators) are actual real live humans (although bereft of consciences), despite the pretense of deferring, pursuant to the corporate pathology, to the corporate persona in order to hide behind its artificial skirts, and it is they who must be primarily held liable for the real live consequences of their actions, irrespective of the claim that they’re protected by the corporate charter. Murder, by proxy, is still murder in any book.
As to prosecutions of the corporations for crime, these could proceed where private citizens or private organizations bring actions in relation to (ex rel.), for example, the US Attorney, for the particular district in which the corporate defendants were located, or under RICO (the Racketeering and Corrupt Organizations Act, US Code Title 18, - RICO LAWS), enabling treble damages. For BP, that would jack the money award potential halfway to a trillion dollars, the Chapter 7 sentence of death.
These actions would, of course, not be limited to public corporations, but would open up, kinda like jaws-of-life, privately-held corporations to the same kind of litigation (how ‘bout the Koch Bros. for starters, The billionaire Koch brothers' war against Obama : The New Yorker), under the Commerce Clause (U.S. Constitution - Article 1 Section 8), all corporations, whether public or private, having an affect on interstate commerce. These actions would also provide another bite at corporations which have managed to escape justice in court, e.g., in the Wilson/Akre whistleblower suit (The Media Can Legally Lie) involving Rupert AARGH!’s Newscorp, when the appellate court ruled, perhaps corruptly, that falsifying news isn’t a crime. Did Rupert poison the fountain of justice?
Since the Obama administration seems loathe to go after Jr.’s crew for its perpetration (not prosecution) of an armed conflict vs. Iraq (not a war, there being no required declaration thereto), some of the corporate co-conspirators, such as, Halliburton, Harken Energy, Wackenhut/Blackwater/Xe and Bechtel, could be prosecuted for their pathological pursuit of profit where all the lives lost were the consequence of the palpable falsehoods re:WMDs (which I refer to as RMDs, rabbits of mass destruction, that is, Jr. would have had to pull those weapons out of his hat), widely disseminated to defraud Americans and our allies into accepting the massive violations of international law, which would implicate the Nuremberg Principles with respect to the commission of acts which any reasonable person would know were criminal (Principles of International Law). Let’s see, the corporations, the federal agencies assigned to watch the store and the real live actual humans doing what they know is criminal or letting it happen, as regulated by the Nuremberg Principles … that’s the ticket. No International Court at the Hague required, just www.court.
Ultimately, the statutory schemes governing corporations, public and private (since all affect interstate commerce, none can claim an immunity privilege), must be radically reformed, with e-participation all around, to prevent the universality of abuse that’s ongoing. The benevolence required of corporations in a new statutory regime must be specific and provide a straightforward path to recovery of damages; the remedies should also include, but not be limited to, prosecution of corporate officers in an equivalency to ordinary criminal prosecution for, inter alia, fraud in the avoidance of providing protection of employees from dangerous working conditions. Furthermore, the new statutory scheme should provide for compensation to shareholders for any malfeasance of the corporate officers held liable for violations of these provisions.
Obviously, much, much more can be legislated.
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Brutus calls out to his philosophical descendants to do to the Caesars, this 4th Reich of the judiciary, who have surreptitiously committed violence to the entire political process, as much as he himself would have wanted in a “Et tu” sort of way.
