The Roberts Court would appear to be contradicting itself when it ruled both for the First Amendment in the case from Wisconsin Right to Life’s airing political ads in violation of McCain/Feingold but against it in the Alaska teen’s right to unfurl a “Bong Hits 4 Jesus” banner across the street from a school function. But what is revealed here is actually a major theme of contemporary conservatism that, in the minds of the movement, trumps minor issues like a consistent interpretation of the Constitution. This theme is more in line with the pre-Colonial notions of Tory vs. Whig than anything we recognize from the last century-and-a-half or even the libertarian conservatism of the post Barry Goldwater era.
This court, and much of the movement that created its majority, consistently defers to power and privilege for its own sake and against the individual, even if the government steps in as an advocate for that individual. Two other decisions from the past week reveal the theme almost as strongly. In one, “taxpayers” were denied the right to sue over the president’s Faith Based Initiatives on grounds of separation of church and state, and in another, corporations and developers were given tremendous new authority to drive through exceptions to the Endangered Species Act at the local level.
The Court seems to be saying, in effect, “If you are a corporation or a developer or a private entity we like, you get precedence first; if you are an authority figure such as a school administrator, you get precedence second; if you are an individual or the environment, you get precedence not at all.”
The empowerment of these elements in our society runs counter to the notions of Jeffersonian democracy we hold dear. To say that the private sector collectively has, in some cases, more of a right to press its case in a public forum than an individual creates a class of “super-citizens” out of corporations and lobbying groups, many of which command a good deal more money and influence than all but the richest, most powerful individuals. They are able to control the lives of thousands through employment or layoff, and run what are essentially protection rackets, demanding subsidies and tax breaks in states and municipalities whose economies depend upon them. Bill Gates as an individual may be able to fire all his housekeeping staff, but only Microsoft (or perhaps Boeing) could singlehandedly devastate the economy of Washington state by moving all its jobs overseas.
Some of the thinking inherent in allowing corporate entities the same free speech rights as regular folks posits that corporations are, legally speaking, people. This allows them to hold property and be represented in court—all things necessary for a business or lobbying group to do what it needs to do. Fair enough. But it takes little to make the corporate person an absurdity. It would be silly to argue that a corporation has the right to marry or vote, after all, and when things go wrong at a company like Enron, it’s not the company that goes to jail; it’s the Jeff Skillings and the (had he not died first) the Ken Lays. You can only punish a corporation monetarily, since, in a very real way, it only exists monetarily. A corporation is a contract (or a series of them) much more than it is a person, so there is no sense in which it should be granted the same rights as a citizen beyond the bare few it needs to conduct business.
We can hear this thinking echoed in the language of the conservatives who refer to We, The People as “taxpayers” almost exclusively. Corporations, of course, pay taxes, so we are equivalent. But whether or not you pay taxes you are still a citizen. Your right to vote or peaceably assemble is not revoked when you fall below the income level at which the IRS starts taking its share. “Taxpayer” is a word they use instead of citizen, and it’s a neocon sleight of tongue, meant to imply that those who do not are out of the equation—and those who do have limited rights, rights, apparently limited by their status as mere income-earners.
This also reinforces the Whiggishness of current conservative thought: corporations are the rough equivalent of duchies and dukedoms, their leaders the rough equivalent of an aristocracy. It makes sense from the aristocratic point of view that the duchy would be afforded more rights no matter who, currently, holds title to it.
From a democratic point of view, the “Bong Hits” case is also instructive. Chief Justice Roberts here argued that the school’s principal could “reasonably” interpret the student’s banner as advocating an illegal activity, and so was within her rights to suspend the student and tear down the sign. Two assenting justices noted that they would have ruled differently had the sign been more clearly political, but I’m skeptical of that, as the student himself acknowledged during the confrontation with his principal that the message was an absurdist exercise in his First Amendment rights. He was being upfront about his intentions, and it should have ended there. But even a cursory look at the actual content of the sign would have revealed that it’s just what the student says it is. You don’t need to be an English major to see that it’s satire, designed to hit (all puns intended) several politically sensitive issues at once while, in and of itself, communicating nothing in particular. Further, he did it off school grounds and across the street from the school function. So while he certainly could have been busted for truancy, it makes no sense to bust him for the banner he unfurled.
The message this sends is not only that students have limited rights, but that the power of the school administrator is sovereign at nearly all times and in nearly all aspects of a student’s life and communications. What if the student had posted a similar message on Facebook? Would the justices have ruled any differently? Facebook communicates with far more students than a banner near an Olympic torch parade. Would he have been “advocating drug use” to the whole cyberworld in that case? And while I absolutely understand the need for the educational system to at times control student behavior, the “Bong Hits” case represents a student who is off campus and acting in a way that is well thought out, deliberate, measured, and funny. He is not being “disruptive”; he’s making a point. Sitting in the back of the class and making fart noises is disruptive, and that may deserve detention. What this student did is admirable and deserves a medal.
But again, the power is granted to authority and privilege and being denied to the individual as a matter of course. Perhaps the Roberts Court is merely trying to prepare the high school students of today for the aristocratic future it is currently creating for them.