The Zeroth Amendment: The Basis of All "Modern" Conservative Jurisprudence [View all]

[True Blue Door]

On casual inspection, one might be tempted to think that the conservative Roberts court and its predecessor under William Rehnquist made a lot of thoroughly arbitrary, random, and contradictory decisions in service to conservative ideology. Sometimes they argued from federalism, sometimes from state's rights; sometimes defended individuals, sometimes the power of the State; and oftentimes their arguments in each where mutually exclusive to standards they later applied to find the opposite. But in every case where the Court reached 5-4 mutually exclusive decisions with its own earlier precedents, there was one constant that actually puts it all in perspective.

Think of it as the Zeroth Amendment to the US Constitution - an unwritten Amendment that preempts all others, and justifies discarding them completely when they become inconvenient to it: Thou shalt not inconvenience the rich, or through inaction allow them to be inconvenienced. When you take this concept into account, suddenly all of the chaotic lunacy of right-wing jurisprudence over the past several decades seems utterly self-consistent.

Take the most recent abomination, the 5-4 finding that Hobby Lobby as a Corporate Person has the Constitutional right to impose its religious beliefs on its employees and violate federal law by refusing to cover contraception. Let's dissect every aspect of the madness: First and foremost, obviously, is the concept of Corporate Persons itself. Corporate personhood is not a new legal Lie - it actually arose from the previous period in American history when the rich ruled with impunity, the late 19th century. But it had lapsed into irrelevancy for generations before being revived in the post-Reagan era as a justification for exempting corporations from the authority of Constitutional government while giving them its full protection.

Now, what is the primary mechanism through which the rich enact their will? The corporation. Ergo, any limit on the corporation is a limit on the privilege of the rich. Thus, via the Zeroth Amendment, we have seen a steady succession of lawless decisions declaring such lunatic doctrines as the idea that a business - basically a machine organized to achieve the one-dimensional objective of maximum financial profit - has Constitutional rights, among them the right to purchase political influence and sway the outcomes of elections purely by force of money. Since the rich are culturally accustomed to all things being for sale and getting their way entirely by buying it, imposing a democratic system on them - even the shallow patina of one - would be an inconvenience, and thus a violation of their Zeroth Amendment right to buy the election outcome of their desire.

The most recent case, while it superficially regards matters of religion, is actually just another case of the Court saying that the rich can do whatever they want with impunity. After all, the case isn't about a religious organization that doesn't want to cover contraception costs, but about a very wealthy for-profit corporation. So the real question was not one of religion, but of money: The owners of Hobby Lobby have more money than their employees, ergo they have greater rights under the Zeroth Amendment and its associated jurisprudence.

Even the 2nd Amendment, with all the seeming absolutism of its most fanatical adherents, is largely just an auxiliary to the Zeroth Amendment. Think about this: To whom does the NRA owe primary allegiance - gun owners, or gun manufacturers? Clearly the latter, since it overwhelmingly opposes measures that are opposed by manufacturers that would if anything benefit consumers of their products. It is 100% focused on maximizing the profits of the industry and literally nothing else. If you were to introduce legislation guaranteeing that every adult non-felon must be issued a gun at cost (i.e., no profit) by firearm manufacturers, the NRA would shriek it into oblivion, and the same gundamentalist madmen who would effectively have been calling for such a measure the day before would propose every conceivable conspiracy theory to denounce it.

Because, once again, the Zeroth Amendment is their guiding light, not the 2nd Amendment: The gun industry is obscenely rich, and besides that, is instrumental in the violent enforcement of the Zeroth Amendment rights of all rich people and their attendant Corporate Persons.

This also explains the absolute Republican obstruction of tax increases despite their own hollow rhetoric attacking budget deficits: They don't care about deficits - they just (a)refuse to raise taxes on the rich (the Zeroth Amendment forbids it), and (b)refuse to fund anything that benefits anyone other than the rich, because that dilutes their power (and thus, once again, the Zeroth Amendment forbids it). It is their one and only Law, the one and only right they recognize, and all others either do not exist as far as they are concerned or are mere rhetorical tools for enforcing the Zeroth Amendment.

I'm not saying this is a principle they consciously adhere to, any more than most Fascists consciously adhere to the principle that power is the only morality: It's simply a fact at the root of their thinking and behavior, demonstrated overwhelmingly and repeatedly. Thus we find that US conservatives, while not quite the nightmare that fascism represents, are at least a cousin to it: Where fascists find sole vindication in the act of eliminating opposition, this (equally totalitarian, but less dramatic) group of sociopaths find sufficient and exclusive vindication in economic leverage. So the US conservative's ideal world is not a battlefield, but a slave auction.

Let us not kid ourselves about where this is going either: The ultimate end of this process will be the granting of voting rights to corporations, which will then be extended to the point that elections are literally auctions rather than merely taking on the aspect thereof due to unhealthy influence. I am not exaggerating for effect: This will, I think, literally occur. And at that point the unwritten, unjust, and insane Zeroth Amendment that exists in conservatives' heads will be in direct existential conflict with the Constitution as written and understood by the American people and every legal scholar who is not a raving psychotic.

But given the meekness with which every step toward that abyss has been met by even the liberal activists of this country, one can't help but wonder if that final step off the edge will be regarded as anything special, or just met with the same cowardice and lethargy as the rest.

The alternative is, at least for now, to acknowledge among ourselves that the decisions the Roberts Court has reached in these Zeroth Amendment cases are lawless and without authority. That they are literally just raving ideologues, two of whom were illegitimately placed on the court by an unelected President, finding according to their fanatic religion of money in direct violation of the laws they were charged to interpret and reconcile.

In other words, we have to step back from the zombie attitude that the Constitution is whatever the Court says it is, and state unequivocally that when their decisions are so far removed from reason, jurisprudence, and the rights of the people that they are effectively creating their own secessionist state via their decisions, we have to take the position that we reject these decisions - not merely "opine" that they are wrong. Because they are not merely wrong, they are fundamentally outside the Court's purview. The Zeroth Amendment, folks, is the seed of right-wing totalitarianism that they've tried to plant without having to win elections or pass Amendments, but simply to put five people on the Supreme Court who will interpret it into existence and strike down any law challenging it.

That is a coup d'etat, not a shift in judicial philosophy. Whether striking down critical portions of the Voting Rights Act or holding the corporations have the Constitutional rights of individuals, this court is attempting to interpret the Constitution out of existence and put in its place a completely different form of government. And like all forms of government, to really come into effect, this Zeroth Amendment state needs your tacit permission to function - it needs your agreement to abide by the lawless, alternate-universe, Neo-Confederate findings of this revolutionary right-wing Supreme Court.

If activism opposing these decisions is explicit that these decisions are lawless and hold no authority, then at least this country has a chance, because we will have kept alive the crucial idea that the Constitution is a pact with each and every one of us - not some obscurantist divine doctrine that only some insular priesthood is qualified to understand and interpret.

At least speaking for myself, the Supreme Court has since 2000 greatly weakened its own authority where I as a citizen am concerned. And where decisions like Citizens United, the ruling striking down parts of VRA, and this Hobby Lobby case are concerned, it has no authority whatsoever. Corporations are not persons. They do not have Constitutional rights. Money is not speech. The United States of America has never agreed to a Zeroth Amendment, and will never agree to one. And if it ever comes to a point where these decisions are interpreted in a way that directly limits my freedom rather than merely diluting it by empowering corrupt forces, I will defy any such move and exercise my rights anyway - not merely complain or argue.

While the assault on our rights remains indirect, defying it will be harder, but at the very least we can deny them what fraction of authority comes from treating their actions as legitimate. For now, we can settle for stating as a fact that: Corporations do not have the rights this Court asserts, because such would plainly violate the rights of the people as explicitly guaranteed in the Constitution, and we as citizens pledge to take no action that would implicitly or explicitly recognize such privileges, nor fail to take lawful actions denying those privileges for fear of retribution.

Sorry if I've rambled, but this decision really got my goat. There is no such Zeroth Amendment to the Constitution, so conservatives really need to stop interpreting laws as if there were one, and we need to stop pretending that their acts of radical undemocratic revolution are differences of opinion undertaken lawfully by legitimate authorities. We need to acknowledge that these decisions are not part of the jurisprudence of the United States of America, but the dogmas of a schismatic revolutionary state with no legitimacy.