After the State of the Union, a question hung out there: how would the supreme Court respond to President Obama. Well, they wouldn’t. They couldn’t. They shouldn’t. Though we have checks and balances, our branches are not co-equal. The President’s bully pulpit and executive authority truly is checked only by Congress. To any supreme Court decision the President may (and has in the past said…), “they have their decision, let them enforce it.” Thus the judges show deferential silence. That does not mean, however, a Justice cannot make a rather smart, off-the-cuff comment in rebuttal. Here’s what Clarence Thomas said yesterday to a group of law students concerning Citizens United:

He added that the history of Congressional regulation of corporate involvement in politics had a dark side, pointing to the Tillman Act, which banned corporate contributions to federal candidates in 1907.

“Go back and read why Tillman introduced that legislation,” Justice Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”

It is thus a mistake, the justice said, to applaud the regulation of corporate speech as “some sort of beatific action.”

Justice Thomas said the First Amendment’s protections applied regardless of how people chose to assemble to participate in the political process.

Thomas hit Obama back on two fronts. Firstly, black man to black man, Thomas reminded Obama of the odious and racial origins of the regulation of corporate speech. But he also took aim at a liberal’s favorite constitutional interpretative tool: legislative intent. The intent of this law was pernicious. How could you, President Obama, as a liberal and a black man, defend such a thing? Thomas has rightly called the President out on this issue. It’ll be a hard charge to rebut.

And since we haven’t yet touched this case over here, the furor over Citizens United seems odd. Thomas hit it well when he said:

“I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company,” Justice Thomas said. “These are corporations.”

Indeed. The obsession has been over this idea that corporations while legally persons are not truly persons. Wait. Why does that matter, at all? Look at the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The amendment is very clear that negative prohibition on Congress is to protect these general classes of liberty: religion, speech, press, assembly and petition. As far as I know, the amendment is frequently applied in its other areas both to individuals and to corporate forms. Are not churches freedom of religion rights protected? Does not the NY Times get protection under freedom of the press? Doesn’t even the KKK have their associational rights defended in our courts? To somehow now bring up the canard of corporate speech is really to be ignorant of the basic text of the 1st amendment. After all, a corporation is nothing more than a vehicle, a means for people to organize. Why shouldn’t the people in the corporation and acting through the corporation get the same fundamental protections awarded to other corporate activities under the 1st Amendment?

Look, I’m worried about multi-national corporations and “big corporations” having undue influence. But campaign finance regulation is like trying to control water flowing downhill. Somehow, someway, the money like the water always finds a way through to the place it’s trying to get to. The Framers had a very simple solution to keeping money out of government: keep the government minimal. The less things the government can actually do, the less incentive people will have to attempt to monopolize its powers.

I guess we have both the President and the good Justice for bringing this argument into the public square. Let’s hope it ends with a reasonable and constitutional solution. Or perhaps Obama can just invite Thomas over for a beer. You know. To talk things over. Smooth out any misunderstanding. Let me be clear…