The Supreme Court: From the 'Doctrine of Discovery' to corporate constitutional ‘rights’ (Part 1)

Paul Cienfuegos’ October 13th, 2015 Commentary on KBOO Evening News


(His weekly commentaries are broadcast every Tuesday evening. You can view or listen to them all at,, or subscribe via ITunes. Listen to this one HERE.)


Greetings! You are listening to the weekly commentary by yours truly, Paul Cienfuegos.


Yesterday was a federal holiday named after a world famous explorer who got lost and thought he was somewhere very very far from where he actually was. For years, my personal name for yesterday’s holiday has been “Lost Italian Day”, but recently, community after community is finally starting to wake up to this horrific story of genocide of indigenous people, and no longer celebrating that mythical tale. Just this past week, in fact, the Portland City Council changed the official name of this holiday to Indigenous Peoples Day. Hooray for Portland! And yet, it’s only one tiny little symbolic gesture compared with what is actually necessary and in fact urgent, if we are to continue to survive long-term as inhabitants of our one and only Mother Earth. What every government at the local, state, and federal level really must do and soon is to start acknowledging and respecting Native American treaty rights across the landscape. Not just when it’s convenient. Not just when the corporate leaders are in support of it. But all the time, everywhere.


The “Doctrine of Discovery” is the centerpiece of the genocide story of what we have come to think of as the United States of America. It’s amazing to me that I had never even heard the term – Doctrine of Discovery – till many years after I finished college. It’s a term that every American really needs to know, and understand its significance.


Quoting primarily from the website, we learn that the Papal Bulls of the 15th century gave Christian explorers the right to claim lands they “discovered” and lay claim to those lands for their Christian Monarchs. Any land that was not inhabited by Christians was available to be “discovered”, claimed, and exploited. If the “pagan” inhabitants could be converted, they might be spared. If not, they could be enslaved or killed.


The Discovery Doctrine is a concept of public international law expounded by the US Supreme Court in a series of decisions, initially in Johnson v. McIntosh in 1823. The doctrine was Chief Justice John Marshall's explanation of the way in which colonial powers laid claim to newly discovered lands during the so-called Age of Discovery. Under it, title to newly discovered lands lay with the government whose subjects discovered new territory. The doctrine has been primarily used to support the discovering government’s exclusive right to extinguish the “right of occupancy” of the indigenous occupants. This Doctrine governs US Indian Law today and has been cited as recently as 2005 in the decision City Of Sherrill v. Oneida Indian Nation Of New York. Talk about institutionalized racism still being alive and well today in the 21st century!


The US Supreme Court has always been front and center as an institution designed to support the consolidation of wealth and power in the hands of the few – and more recently in the hands of the business corporation. Except a business corporation doesn’t actually have hands, or a head, or a heart, or a brain even though most of us generally use personifying language when what we’re really talking about is a mere “it” that doesn’t even exist in the material world. An “it” with constitutional “rights”. It’s absolutely bizarre if you really think about it. And yet the corporation - for almost two centuries now - has been the placeholder for where power and constitutional “rights” reside under law, because the Supreme Court says so.


We take it for granted today that the Supreme Court is unassailable. That we have to put up with its decisions because there is no legal appeal process. That its judges are appointed for life by the President. And yet, all of these supposedly untouchable rules were made up by people who have been dead for a very very long time. So why do We the People play dead in our response to the ongoing outrage which is the Supreme Court’s ongoing violation of our self-governing authority? One big reason is that we don’t know our own history, so we don’t know what has been attempted in the past, or what social norms there used to be, such as the concept that corporations were once held legally subordinate to The People via their state legislatures, that corporate directors and shareholders were once held fully liable for all harms and debts, that corporate interference in our elections was once a felony, and much much more.


The outrage that is the US Supreme Court that we have all come to know started with their 1803 decision: Marbury v. Madison. This case established the concept of “judicial review”, which meant that the court could declare an existing law unconstitutional, and that law would then be voided. In other words, the Supreme Court ruled that it was supreme, no longer one of three equal pillars of government. The justices gave themselves the power to make law, which was never the intent of the nation’s founders. And Congress did not contest it. Then-president Thomas Jefferson was so outraged by this seizure of governing authority by the highest court in the land, that he stated, “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”


Once the Supreme Court could overrule the other branches of government, any real notion of authentic representative democracy began to fray. Not to mention that in the early 1800’s, only white propertied men had the status of legal persons, so most of us couldn’t even participate if we had wanted to.


Over the next handful of weeks, I will be unveiling the fascinating story and chronology of how the Supreme Court – over the past 195 years – has transformed the business corporation from an institution that was legally subordinate to The People, beginning after the American Revolution, into something having more constitutionally protected so-called “rights” than do you or I. It’s a pretty sordid story. So hang on to your britches, as we continue this story next week.


You’ve been listening to the weekly commentary by yours truly, Paul Cienfuegos. You can hear future commentaries every Tuesday on the KBOO Evening News in Portland, Oregon, and on a growing number of other radio stations. I welcome your feedback.


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