On Wednesday evening, the President of the United States of America addressed a joint session of Congress; there is no more solemn setting, and it was, and remains, a legitimate question as to whether this was the right venue for this speech. I am not convinced that it was, for reasons that will take time to explain.
Presidents very rarely do this. Franklin Delano Roosevelt did it only once—to declare war on Japan. Lyndon Johnson did so, after the assassination of President Kennedy. George W. Bush did so, after the 9/11 attacks. And perhaps most tellingly, Bill Clinton did so to speak about health care reform. It was not an auspicious setting for an intractable public debate.
On the one hand, President Obama runs the genuine risk of media overexposure. Just 233 days into his presidency, and just two days after an enormous and unnecessary flap over his broadcast address to American schoolchildren, this President once again intended to use the bully pulpit to address the nation and to try to shift the terms of the current debate. The speech started strong, incredibly so, then bogged down first in partisanship and some rather surprising open heckling, then drifted into a mind-numbing sea of details and fact-checking, then finished with a stirring call to public responsibility and, very nearly, “the better angels of our nature.”
But by then the rhetorical moment had passed. The speech would have been more effective if it went from the strong beginning to the rousing finish, from a history lesson to a reminder of the kind of character we the people aspire to possess. The details, like the horse-trading, is better done off stage.
What made the beginning of the speech so compelling was that it hung the current debate on a history, a surprisingly long history. The current US President reminded us that it was Theodore Roosevelt who first proposed health care reform, and thus chastised us into the realization that we have been at this, episodically and with little stomach for it, ever since.
But the darker side of this important reminder came quickly to the surface:
If we’ve been at this for so long, why have we achieved so little?
What is really counseling against reform?
Another major story in today’s news cycle offers a chilling answer to this question. And it is not the “rugged individualism” that Roosevelt so perfectly embodied, and that President Obama acknowledged appreciatively in his speech. Not at all. Care and compassion have ever been the flip-side of the long American experiment in self-reliance.
No, the simple answer is unapologetic and state-sponsored capitalism. The answer involves the simply shocking fact that ever since the Civil War the US court system has bent over backwards to protect businesses as if they were people.
“Isn’t a corporation really like an individual, under the law?”
On this same solemn day, the US Supreme Court began an unusual second round of public hearings. The case originally involved an anti-Hillary Clinton “documentary” that was produced during the 2008 presidential campaign.
In the spring of 2009, the Supreme Court declined to rule on the question of whether broadcasting the film violated our new campaign finance regulations. Instead, the High Court invited the lawyers to come back to address a much larger legal question: Should current campaign finance laws be jettisoned entirely?
In the words of PBS’s Gwen Ifill, “So how do we go from a case that involved this movie called ‘Hillary: The Movie,’ how did that morph into a huge assault on campaign finance law?”
An interesting question, and we have some interesting resources with which to answer it.
It is unusual for the US Supreme Court to release audio recordings of their questioning, but they did so today, and the revelations were revealing. The answer to my question became clear in the course of Chief Justice Roberts’s insistent questions.
The question he kept pressing on those arguing incampaign finance laws and against the (anti)Clinton video was a strange one:
“Isn’t a corporation really like an individual, under the law?”
And it occurs to me that it is this very confusion that has hamstrung reasoned debate about health care reform for the past several months. In short, health care is about the care of people. But our legal system is organized to care for, and to protect, corporations as if they were people.
A business thus has the same rights and protections that a person does. This is a system tailor-made for plutocracy. And plutocracy is what bedevils any and every attempt at aggressive, and therefore meaningful, institutional reform.
This subtle equation—between individuals and corporations—is the subtle sub-text to the current health care debate.
And there is a history to that equation, one that goes back quite a bit further than Teddy Roosevelt’s abortive gestures toward health care reform. (He did better with National Parks, which is telling, in itself—we seem to care more clearly for Nature than for The People).
It all goes back to the Civil War, and its aftermath. The crowning legislative achievements of that War were the Thirteenth, Fourteenth and Fifteenth Amendments. Of the three, the Fourteenth was the most ambitious and far-reaching. It was adopted on July 9, 1868, and Section One reads as follows: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. These provisions announced an entirely new and altogether bold conception of democratic citizenship in a post-enslavement Republic. Religious groups on all sides of the issue were especially vocal in their various and conflicting advocacies. But the end result was plain: no State can do what the Federal government says you cannot do to an individual citizen. States rights do not trump individual rights. And there are a lot more people who count as citizens, now.
“Due process”… “equal protection”… the Court placed itself in the business of defending these sacrosanct institutional ideas and the people they were designed to protect. In short, “the era of big government was just beginning.”
The problem is that this same Amendment was immediately put in the service, not of persons who were citizens, but rather in the service of businesses that were almost surreally re-defined as “persons,” in the context of this bloody, war-won Amendment. So businesses received the protection of “due process,” and recognition as “persons,” even as freed blacks languished under Jim Crow. The promises of “equal protection” waited until 1954 to be delivered by the US Supreme Court to persons of African descent.
To put it very plainly: corporations counted more as persons than “we the people” did.
The next two sections of the Fourteenth Amendment were more mundane and predictable: Section Two redefined how we distribute numbers of representatives state-by-state, by “counting the whole number of persons in each State, excluding Indians not taxed”; and Section Three excluded from future service any member of the government who had previously sworn an oath of office to the State and then joined the Confederacy in open rebellion. Predictable stuff, really. After winning the War, Washington intended to re-draw the electoral map and to prohibit southern states from electing popular war heroes back to Congress. That’s slightly power-mongering, but certainly benign enough, after the carnage of enslavement and Total War.
It is Section Four of the Fourteenth Amendment that should cause a contemporary US citi Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Translated? The US government respects and pays it debts, even and especially its war debts. That’s a constitutional requirement, now. But we will not take on, and we will not permit the individual states that have been forced back into the Union to pay, debts that we deem to be unjust. Justice matters, even in economic matters, and justice demands the settling of (certain) accounts.
There is a chilling message in all of this. Our history is an ambivalent and ambiguous and violent one. It has worked against justice as often as not.
A War waged in part over the question of federalism, and in part over the questionable justice of human enslavement, ended in the drafting of a constitutional amendment intended to answer both questions, once and for all.
And what happened? The protections intended for the people, real persons, especially persons who had not fully counted as persons until 1865, were applied instead to big new businesses, like railroads and oil and steel.
Corporations were quite literally re-defined as “persons” under the Fourteenth Amendment.
And lest we miss the deep interest Americans have always had in commerce and in debt, the Amendment continues by distinguishing between just and unjust debt.
But that judgment is squarely in the eye of the indebted beholder.
We have been living in that world ever since. The contest and the collisions between the rights of sick persons and the rights of sick corporations has continued apace. Is there money for the wars, or for corporate bailouts, or for health care reform? The debate over which debts are just and which are not is, amazingly, perennial and intractable.
And since those questions have not come to rest in our time, neither has the endlessly deferred debate over health care reform. Until the conditions of that debate are changed, real progress is unlikely. And so long as corporate and business interests continue to select and define the terrain on which we fight our battles, the partisan bickerings will go on without end, and without reasonable hope for justice, or for victory.
