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Confirming Kavanaugh Is Not Affirming Democracy

Based on Kavanaugh’s own past decisions, of affirming, and likely expanding, constitutional rights of corporations at the expense of human rights, and limiting our ability to protect our ecosystem from further plunder and outright collapse

(Photo by Alex Wong/Getty Images)

"It has also been true that the High Court itself has been guilty of being a tyrant of the minority." (Photo by Alex Wong/Getty Images)

If the Senate confirms Brett Kavanaugh to the vacant Supreme Court Justice seat it will represent further movement away from affirming the basic democratic principle of addressing the needs of the majority without impeding basic rights of the minority. Equally alarming is the threat, based on Kavanaugh’s own past decisions, of affirming, and likely expanding, constitutional rights of corporations at the expense of human rights, and limiting our ability to protect our ecosystem from further plunder and outright collapse.

Cries of horror are inevitably raised when dedication to “democracy” in any form is raised as any sort of litmus test for Supreme Court nominees. The judiciary, after all, is the governmental branch most consistently believed to provide “checks and balances” to preserve individual and minority freedoms and rights threatened by a “tyranny of the majority” when the other two branches -- the legislative and executive -- pass laws and/or enact rulings that profoundly harm the most politically marginalized among us.

The judiciary, after all, is the governmental branch most consistently believed to provide “checks and balances” to preserve individual and minority freedoms and rights threatened by a “tyranny of the majority” when the other two branches — the legislative and executive — pass laws and/or enact rulings that profoundly harm the most politically marginalized among us.

This has certainly been true in numerous instances throughout U.S. history. It has also been true that the High Court itself has been guilty of being a tyrant of the minority (when as few as five unelected, lifelong, and publicly unaccountable judges overturn existing laws and regulations protecting the people’s rights and wellbeing) and a tyrant for the minority (when protecting the constitutional “rights” of powerful corporations and the super wealthy) by overturning, for example, scores of democratically-enacted laws protecting workers, including children, the environment, and communities over the last century.

There are legitimate fears about extreme decisions Kavanaugh could take while occupying a seat inside a hushed and secretive Supreme Court chamber for the next three-plus decades on issues of abortion, the Second Amendment, religious liberty, and the separation of powers and executive authority. Not to be ignored, however, should be Kavanaugh’s perspectives of We the People’s fundamental right to self-governance.

If the past is any guide, a large percentage of non-criminal cases to be brought before the Supreme Court will continue to relate to matters of corporate "rights," protections, and dominance as well as their impact on human rights relating to food safety, health care, education, employment, workplace safety, law enforcement, privacy, elections, and environmental protection, among dozens of other issues in this so-called democracy.

Given how Supreme Court justices (the closest thing we have to kings and queens) have been at the center of affirming and expanding corporate rule for two centuries to place corporations well beyond the authority of the people, it’s imperative that we call upon our Senators in phone conversations, letters-to-the-editor, and personal meetings before and during confirmation hearings to ask Kavanaugh the following basic questions concerning corporate rights; and then judge his responses through a democratic/self-governance/self-determination lens.

A few questions that our Senators should ask Kavanaugh include:

What are inalienable constitutional rights? Who should possess them?

Charters or licenses were democratic instruments once used by the public and state legislatures to define and limit corporate actions. Corporations (collections of capital and property) could not act beyond their charter provisions. Do you feel that these originally defined collections of capital and property should possess inalienable constitutional rights intended for human beings?

You’re considered a “strict constructionist” (i.e. to literally interpret the U.S. Constitution as written). Corporations are nowhere mentioned in our constitution. How do “strict constructionists” justify anointing state-created corporations with Bill of Rights and other rights contained in the Constitution?

The 14th Amendment was one of the three post civil war amendments passed to ensure equal protection for former slaves. Two decades later, the Supreme Court declared that the 14th Amendment’s equal protection rights also applied to corporations. Do you feel that the 14th Amendment framers intended the amendment to apply to corporations?

Corporations won constitutional "search and seizure" rights to avoid subpoenas which may uncover corrupt financial and business practices, and to avoid health and safety inspections, and to prevent citizens and communities from stopping corporate pollution. Do you agree that corporations "search and seizure" rights should exist, which preempt the public's right to know through inspections?

The 1978 First National Bank v Bellotti ruling was the first Supreme Court case granting corporations the right to influence elections. In a dissenting opinion, Justice William Rehnquist stated: “It might reasonably be concluded that [corporations], so beneficial in the economic sphere, pose special dangers in the political sphere." Do you believe that corporate money in elections poses "special dangers in the political sphere"?

The Supreme Court asserted in the 2014 Hobby Lobby decision that a business corporation has constitutional religious rights. Do you believe that an entity created by the state possesses religious rights that could have the effect of discriminating against entire groups of people?

The constitutional right “not to speak” has been granted to corporations to avoid listing product ingredients, even when the public health, safety and welfare may be at risk by not having the right to know. Do you feel a corporation’s constitutional so-called “right not to speak” should preempt the public’s right to protect their own health, safety and welfare?

The appointment for life of a person who will assume a position of vast and seemingly ever-growing power in our society demands an exhaustive review of every issue area that he/she is likely to address on the Supreme Court. Corporate constitutional rights and their impact on our rights as self-governing human beings certainly qualify as one such issue area.

Demanding that our Senators require Brett Kavanaugh to respond to all of these questions during the confirmation process will provide essential insight into whether he affirms democracy and human rights over corporate rights. If not, then we should demand that he be unanimously opposed.

Take action to urge your Senators to ask these questions and join the movement to amend the U.S. Constitution to end corporate constitutional rights and get big money out of politics: http://MoveToAmend.org/no-kavanaugh.

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Kaitlin Sopoci-Belknap

Kaitlin Sopoci-Belknap

Kaitlin Sopoci-Belknap is a founder and National Director of Move To Amend. She can be reached at kaitlin@MoveToAmend.org.

Greg Coleridge

Greg Coleridge

Greg Coleridge is Outreach Director of Move to Amend and former Director of the Northeast Ohio American Friends Service Committee. He can be reached at greg@MoveToAmend.org.

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