Defending 'Pitchfork Ben's' Curious Legacy

By Ken Blackwell (Archive) · Saturday, February 6, 2010

The New York Times, the Washington Post, and the rest of all the right thinking (which is to say left doing) world, is in high dudgeon. They are inflamed over the U.S. Supreme Court’s striking down major portions of the McCain-Feingold Act in the Citizens United v. Federal Election Commission case.

President Obama took the unprecedented step of confronting the Supreme Court about this ruling during his State of the Union Address last week. The President’s characterization of the Court’s ruling was way off base.

Justice Alito famously mouthed the words: “Simply not true.” Justice Alito was right. He was right on two grounds: First, Mr. Obama had wrongly stated that the court would now allow corporations to contribute to federal campaigns. They can’t. Second, Mr. Obama was wrong to tongue-lash the members of the Supreme Court while they sat before him, robed and silent.

The Post’s columnist E.J. Dionne thinks conservatives who criticize Mr. Obama’s incivility are being hypocrites. Mr. Dionne points to Ronald Reagan’s criticism of Roe v. Wade in a 1983 article in the Human Life Review. “I know of no one on the right who protested when President Ronald Reagan…took on the Supreme Court’s Roe v. Wade decision of ten years earlier.”

But that’s exactly the point, Mr. Dionne. While Reagan defended the right to life of unborn children, not once, but repeatedly in his State of the Union Addresses, he never went so far as to confront the co-equal branch of the government on this high ceremonial occasion. Reagan knew that the Justices had no opportunity to respond in such a forum. He knew it was unfair to criticize them when they were his invited guests. President Obama’s ill-informed assault is risking the very civility he is always telling us he wants.

Even Lincoln, when he was sworn in by Chief Justice Roger B. Taney for his first term, took pains in his Inaugural Address to describe the proper role of the courts in respectful terms. Lincoln called the Supreme Court “that estimable tribunal” on that occasion. Everyone knew what Lincoln thought of Taney’s infamous Dred Scott decision. In that dreadful ruling, Taney had written that “the black man has no rights that the white man is bound to respect.” Lincoln had publicly denounced the Dred Scott ruling for four years.

President Obama and the media critics are wrong to say the Court’s January ruling struck down the 1907 Tillman Act that bans corporate contributions to federal campaigns. It didn’t. It merely held unconstitutional portions of the McCain-Feingold campaign finance law which freed the Post, the Times, Dan Rather, Chris Matthews, and Rachel Madow while putting a gag on tax-exempt groups like Family Research Council and, on the left, the Sierra Club. The Court ruled that corporations do not surrender their First Amendment rights to speak about public issues during an election campaign.

Justice Clarence Thomas skipped the State of the Union gong show. He refuses to take part in a ceremony that has become increasingly theatrical.

But Justice Thomas wonders why the left is so solicitous of the Tillman Act. He knows something about the background of that law. The Tillman Act was named for its chief sponsor, Sen. “Pitchfork Ben” Tillman, the arch-segregationist Democrat.

Sen. Tillman, says Justice Thomas, wanted to attack corporations because he saw them as backing the Republican Party, the leading defender of black civil rights. Tillman responded in a 1900 debate on the Senate floor to Republican criticism of his segregationist stance:

I want to call the Senator’s attention to one fact. He said that the Republican party gave the Negroes the ballot in order to protect themselves against the indignities and wrongs that were attempted to be heaped upon them by the enactment of the black code.

We did not disfranchise the Negroes until 1895. Then we had a constitutional convention convened which took the matter up calmly, deliberately, and avowedly with the purpose of disfranchising as many of them as we could under the fourteenth and fifteenth amendments.

Once again, the Supreme Court did not strike down the Tillman Act. It struck down major portions of McCain-Feingold. But isn’t it odd to find all the right thinkers (and left doers) of today defending “Pitchfork Ben” Tillman’s legacy?