Post # 272      DARKNESS AT NOON

A long-overdue investigatory light switch has finally been flipped on in the dark, murky, Washington offices, causing its currently resident insects to panic and scurry in all directions for cover. These have, indeed, been unprecedented and dark days for the nation, surely unforeseen by our founders.

Shocking and unpredicted election returns resulted in the elevation of an incompetent, egotistical and totally unfit candidate to the Oval Office; an ignorant autocrat who has chosen to surround himself with malevolent advisors; who has appointed a cabinet of self-interested “Secretaries” who are ignorant of, or even opposed to, the historically designated responsibilities of their appointed departments. As a logically expected consequence, citizen feelings of security and confidence are seriously lacking, in our government’s stewardship of both domestic and foreign affairs.

How did we get here? How, and why did the traditional and dedicated bright light of dutiful and dedicated service and the assumed propriety of governmental operations get switched off?

We suggest that the answers to these poignant questions are as follows. The empirical existence of a large population of poorly educated, unaware and disaffected citizens, plus the recent availability of unlimited campaign funds. The latter financed Trump’s tactical program of mendacious promises, targeted to such discontented, low information and impressionable voters. Moreover, considering the reported low vote of the opposition, (apparently disinterested in Trump’s opponent) the outcome, in retrospect, might seem somewhat less shocking. But, where did such unlimited funds for the support of the Trump campaign come from?

Based upon the fundamental, Constitutional architecture of governance of our democratic republic, designed and built by our founding fathers, the most essential concept was denominated “The Separation of Powers.” The Executive, Legislative and Judicial branches were to be independent of each other, and respectively, exercise “checks and balances” when required upon the other. Unexplainably, the Supreme Court of The United States (“SCOTUS”), has recently unprecedently and unexpectedly, thrown a wooden shoe (“sabot”) into the well- conceived and well- functioning governmental mechanism, damaging (sabotaging) our successfully operating democracy.

The black letter precedential requirement of SCOTUS, [since its establishment] eternally was, that no case may be accepted for consideration which contains a legal issue. The meritorious reason for the forbearance, is the preservation and protection of the fundamental Constitutional requirement of the Separation of Powers. Indeed, SCOTUS has, over the years, refused to accept a great many cases, where it was felt that the impact of its decision might (even remotely) affect an extant political issue. The timeless procedural prerequisite for the acceptance of any case by SCOTUS, is and has always been, the initial filing of a proceeding called an “application for certiorari” to judicially assure the complete absence of any political issue, directly, or by indirect impact, in the case for which acceptance is sought.

At any rate, such was the unshakeable precedent until, GORE v. BUSH, wherein, shockingly, the Court chose to politically affect the outcome of a contested Presidential election. We, as serious observers of the law, were confused and disappointed by the acceptance and the ruling of, said case.  Even more confusing and by precedent egregious, was the manifestly political case, known as “Citizen’s United,” which was also wrongfully accepted and decided by SCOTUS. The high Court seemed to go bizarrely out of its way, in once more, bypassing its own historical accepted precedent, and as well, astonishingly, frustrating the body of the substantive law in its disappointing  and irrational holding. SCOTUS, in its wisdom, ruled that a “corporation” is a “person” and as such, has the First Amendment right (Freedom of Speech) to contribute as much money as it desires to an election. [ Henny Penny, this time the sky is now undoubtedly falling!]

Every law school freshman (and no doubt, every informed entrepreneur) knows, that a corporation is but a fictional legal entity (the concept, existing since its creation by England’s Victorian Parliament Corporation Act), privately formed, specifically, to afford “limited liability” to entrepreneurs. The corporate entity permits one to do business in the name of a fictional “person,” the corporation, itself; which entity can be sued, or sue in its (registered) corporate name. The corporation has legally been a purely fictional “person” solely existing and recognized for this specific and limited, commercial purpose. It most assuredly, does not have existence in any other respect or for any other purpose; certainly not let as a living and breathing citizen with Constitutional rights. Since every law school freshman knows this, one can safely assume that it is known by our highest Court. This conundrum was observed in a very early post (“WHERE YOU AT, SCOTUS?” Vol.1, “Reflections” p.5) where the reasoning of the Court was earlier questioned.

Inarguably, the influence of big money in politics, persists as a critical pathology to democracy and the body politic; the, irresponsibly granted, legal franchise to donate unlimited funds to an election, is the advanced, infiltrating metastasis of that pathology, predictably fatal to the existence of any Republican Democracy.


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Retired from the practice of law'; former Editor in Chief of Law Review; Phi Beta Kappa; Poet. Essayist Literature Student and enthusiast.

2 thoughts on “Post # 272      DARKNESS AT NOON”

  1. Citizen’s United is just one example of the danger associated with an Activist Judiciary. More recently, in Masterpiece Cakeshop VS Colorado, the Colorado Court Judge told a Conservative Christian That his religious beliefs were intolerable in America. SCOTUS found against the Colorado Judge in that it was not his position to determine which Religion is acceptable. His job is to support Freedom of Religion.


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