This article discusses the details concerning the wrongfully decided Supreme Court decision in the Citizens United case. And with that wrongful decision the Roberts court struck down the most important provisions of the “Bipartisan Campaign Reform Act”, also known as “McCain Feingold”. Our position is that the Roberts court abused previous common law to create a “right to free speech” for incorporated entities that did not actually exist. The Roberts court then abused this fabrication to assert a breach of the First Amendment.
In an earlier article regarding the “Citizens United” decision of the Supreme Court (SCOTUS), it was observed that the “Plain Language” canon of statutory interpretation was both first and foremost in the list of textual canons (previous article). In the previous article it was allowed that if the SCOTUS see “congress shall make no law abridging freedom of speech” as plain language, then the ‘Plain Language’ canon is exhaustive and there is no reason to look to any further guidelines.
The gaping hole in that previous analysis was and is, the abuse of the “Plain Language” canon by the Roberts court. The Roberts court is asserting a underlying assumption that the United States Constitution impliedly recognizes a right of free speech for absolutely every THING in the cosmos. Such assumption seems to include nanny goats, fence posts, billiard balls, and whatever institutional creations the judiciary might wish to endow. If such inclusion within the constitution is financed by the “Plain Language” canon (which it is not) then it is also incumbent upon the judiciary to interpret words in their “plain language” sense. To wit: To “abridge” is to limit or curtail or shorten an already existing right or privilege. And if there is no pre-existing right or privilege then there can be no abridgement. What the SCOTUS has done is to create a right that is not supported by anything other than its own common law/judicial opinion, and then to claim an abridgement of this right as though the right exists outside its own judicial bubble. How convenient. It is like hoisting one’s self over a fence by grabbing one’s own underwear.
In our system of three co-equal branches of government, the SCOTUS is not to create additional constitutional provisions or to extend the plain meaning of current provisions simply through common law. To create a “right to free speech” for corporate entities, the legislature would need to place a suitable amendment to the constitution before the states, and the legislatures of the states or the people of the states would need to ratify it. The legislature and the executive (the other two co-equal branches of our republican form of government) are already in agreement to the opposite as these two branches created the Bipartisan Campaign Reform Act (BCRA), also know as “McCain Feingold”. That act forbids a “right to free speech” for incorporated entities in regard to electioneering. And the act is entirely correct and within the real boundaries of the constitution. A non existent right cannot be abridged and the “Plain Meaning” of “the congress shall make no law abridging freedom of speech” has not been violated by the BCRA.
People have inalienable rights because, unlike billiard balls and corporate charters, they are corporeal, sentient, and capable of appreciating the concept of right. And this inalienable condition is described, not in the United States Constitution, but in the Declaration of Independence. The First Amendment specifically recognizes this inalienable human right and sets it forth within the constitution. And it is by this written acknowledgement and inclusion that this right becomes CONSTITUTIONAL.
Most certainly the departments of government, including the states, are recognized within the United States Constitution and thus have CONSTITUTIONAL rights. But according to the canon of Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”) , entities, and most especially institutions or classes of institutions not specified and recognized by the constitution and included therein do not have CONSTITUTIONAL rights. More pointedly, institutions do not have any rights at all unless government CREATES such rights within a particular context. In the case of corporations, rights have been recognized by the judiciary and have become part of COMMON LAW only. But until the legislature and/or the executive recognizes and support such rights as free speech enuring to incorporated entities, then such rights do not exist anywhere outside the judiciary itself. There is no such “right” at all, let alone a CONSTITUTIONAL right.
BUT WATCH THIS MAGIC ACT:
The SCOTUS, having created common law regarding corporate personhood, has now abused such common law to infer that because a corporation has the same rights as a person then a constitutional prohibition exists that would prevent any limitation on the free speech of incorporated groups. And based on this personhood linkage, the Roberts court seems to believe that it can award CONSTITUTIONAL rights, such as the right to free speech, to any institution it might want.