The Force of Money and the Force Arms

There is a flaw in the U.S. Constitution. Article 6 provides that, "all Treaties … shall be the supreme Law of the Land." Treaties, like the existing NAFTA and WTO or the proposed Trans Pacific Partnership (TPP), subject the American economy to international tribunals whose findings take precedence over US law, whether made by court or by Congress. No appeal. Period.

These tribunals constitute a competing international authority that allows the treaty power to be used to subvert our republic. They are bought, paid for and run by corporations, with the advice and consent of the federal government – Democrat and Republican alike. Corporations, foreign and domestic, are the prime actors in these systems. The judges on these panels are, for the most part, corporate lawyers who turn around and plead the corporate side in the next hearing.

The content of the treaties now being negotiated is supposed to be secret but in the age of the Internet everything leaks. From leaks we know that the United States government position is exactly what Obama campaign literature said he would NOT do: "We will not negotiate bilateral trade agreements that stop the government from protecting the environment, food safety, or the health of its citizens; give greater rights to foreign investors than to U.S. investors; require the privatization of our vital public services; or prevent developing country governments from adopting humanitarian licensing policies to improve access to life-saving medications."

This is exactly what NAFTA, the WTO and TPP commit us to. It is what the money dragged into the system by Citizens United can buy from our groveling elected officials .

The right to go to these tribunals for redress, even if is privileged and unequal, is a minor gain for the corporations. The real prize is that constitutional flaw that defines treaties as the supreme law of the land.

When these treaties are in force and competing systems are fully operational, the United States will face a constitutional crisis over who decides what is the supreme law of the land. Corporate governance, for that is what it is, will use the treaty power to make a mockery of political governance. There is no room or mechanism for compromise. You are the sovereign or you are not.

This has happened before. A Constitutional flaw allowed for slavery and its contradictions. The geographic "solution" contained in the Missouri Compromise and The Fugitive Slave Act was voided by the Supreme Court in the Dred Scott decision. The Constitution provided no mechanism other than the force of arms and we had the Civil War.

We now face the same kind of irreconcilable conflict as our forebears did in the 1850s. At that time the conflict was between the power of slavery and the equality of "men." In our case, it is between the power of money and the politics of a republic where corporations are paraded as people..

It is absurd to treat corporations as persons, as Citizens United tries to do. Corporations by their nature have privileges and power that natural persons do not have: immortality, limited liability and immunity from imprisonment and execution. Corporations have, in addition, taken unto themselves immunities based on the enormous size of their wealth and power. They are too big to be allowed to fail.

Corporations have bought their way out from under the rule of law, as was demonstrated in our recent financial crisis. It is not enough to have bought the Executive and Legislative branches, they are now using the treaty making power to buy their own judicial system.

This is not a partisan issue."Free trade" is bipartisan. The TPP was originally negotiated by President Bush and is now being pushed by Pres. Obama. Corporate money paid both political parties for that proposed treaty. Both parties are now clearly beholden to the large corporations that dominate Wall Street for every law that gets past the gridlock. No one thinks the coming election is about corporate power, even though OWS and the 99% would like to make it so. But neither does any one think that trade policy is about who sets the supreme law of the land.

But the Supreme Court is partisan. Citizens United is a replay of the Dred Scott case. In both cases, a partisan Chief Justice took arrogant pride in a reckless decision that could bring down the Republic. Chief Justice Taney went far beyond the case before him to define the slaves as inferior beings and to reinforce slavery. In the same manner, Chief Justice Roberts went beyond the matter before him to make as odious an argument that corporations were persons. In both cases, it was a partisan political decision that weakened the Court and threatened the Republic.

The finding in the Dred Scott case forced us into Civil War. In Citizens United, the force of money may yet have to meet the force of arms. Only time will tell.