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Problems with "Presidents Day" by Tom Eddlem at LewRockwell.com; but let’s not just "restore Congress," but amend Constitution to limit the federal government

February 15th, 2010 No comments

I encourage readers to take a look at the excellent essay by Thomas R. Eddlem, Down With the Presidency! A President’s Day Message, now up at LewRockwell.com.

I quote first a few key portions, and then note my further thoughts.

But the role of the president under the U.S. Constitution is not to make laws. It is simply to execute the laws passed by Congress. Article I, Section 1 of the U.S. Constitution begins: “All legislative powers herein granted shall be vested in a Congress of the United States.” Since the Constitution mandates that “all” law-making powers reside in the Congress, none are left for the president. The president’s job is that “he shall take care that the laws be faithfully executed” under Article II, Section 3 of the U.S. Constitution. Constitutionally speaking, the president was designed by the founders to be nothing more than the errand-boy of Congress.

Obama won’t be the first to take us from the “rule of law” to “rule by one man.” The Bush and Clinton administrations paved the way for unconstitutional executive orders. Clinton advisor Paul Begala told the New York Times of Clinton’s executive orders: “Stroke of the pen. Law of the Land. Kinda cool.”

President Bush and his neo-conservative theoreticians were even worse, as they posited the idea that the president was above all law. Former Bush Assistant Attorney General John Yoo’s recent book Crisis and Command contends presidential powers are unlimited by any law: “The executive was, rather, the servant of necessity, bound to act in accordance with, in the absence of, or in extraordinary emergencies, in defense of the republic, even contrary to regularly constituted law.”

This is the authoritarian personality long championed by both much of the Democratic leadership on the “left” and all of the neo-conservative Republicans on the “right.” Neo-conservatives like John Yoo explicitly endorse the idea of an omnipotent presidency that erases all the rights of the people. In his wordy and overpriced book, Crisis and Command, John Yoo claims the Constitution created a president with unlimited powers. The Constitution of the founders, Yoo wrote, “did not carefully limit the executive power, as [it] did with the legislative, because they understood that they could not see the future.”  …

This is what the modern presidency has become, a new Caesar whose powers are without limit.

Unfortunately the national leadership of the Republican Party has bought wholly into Yoo’s argument that government gives out rights instead of God, and that government ought not to “give” rights to people we don’t like. … 

It’s true that the average American Fox-servative remains ignorant of these facts, because we won’t hear the details of tortured innocents like Maher Arar, Khalid el-Masri, Omar Deghayes or the Tipton Three on the Fox News Channel. Nor will the Fox News Network tell its audience that the Obama administration has openly ratified all of these Bush-era attacks on the Bill of Rights except for the torture. Fox-servatives love the dictatorial state; they just wish it were run by the party of Pompey instead of the party of Caesar.

 

All of the really bad ideas that the federal government initiated throughout our nation’s history originated with the office of president: This includes most of the wars as well as warrantless surveillance, detention without trial, torture and all of the socialist legislation since the New Deal. Each was only adopted by the president pushing Congress, or more recently, by a president ignoring Congress altogether.

The presidency itself needs to be knocked down from its perch. The only thing that will save the American republic is a renewed focus upon the Congress and cutting down the presidency to size. The founding fathers designed the legislature – Congress – to be the dominant branch of a very small federal government.

My additional thoughts? I copy them from an email that I sent to Tom Eddlem (links added and typos fixed, nacherly):

Tom, great, perceptive piece at LewRockwell.
 
However, you missed that officially it’s still “Washington’s Birthday”, a focus that would help further illustrate how the Unitary President/CIC role has run out of control. Washington – who could have had much more power and refused – would certainly shudder at the “liberties taken” by later presidents (double entendre intended).
 
Also, why no mention of the obvious need to breathe more life into our federal system? One way to limit the power of the President (and Congress & Supreme Court) is to restore it to the states.

Those now pushing for a Constitutional Convention – from Larry Lessig seeking to limit corporate influence on elections and on legislation, to those who want to ensure that only people (not corporations) have Constitutional rights [and fix the glaring legislative error by the Supreme Court in granting Constitutional “free speech” rights to corporation (which are THINGS, not people)], and to those seeking to limit Commerce Clause and restore the 9th and 10th Amendments – could use more cheerleaders!

Not criticism, but food for thought.

Speech and Sociopaths: Does it make sense to collapse, for Constitutional and legal purposes, the distinctions between human beings and corporate "persons"?

February 11th, 2010 No comments

Further to my preceding posts on corporate “free speech”, let me copy here for those interested some parts of a post by legal blogger/law prof Kimberly Hauser, and excerpts of the comment thread (emphasis added).

Says Hauser:

Justice Kennedy stated in the majority opinion: “If the First
Amendment has any force, it prohibits Congress from fining or jailing
citizens, or associations of citizens, for simply engaging in free
speech.”  Hold on, Emily Litella, since when is a corporation an
“association of citizens.”  The last time I checked, they were
state-chartered entities organized for the purpose of operating a
business, making a profit, and sheltering the organizers of the
business from personal liability.  I don’t think anyone would mistake
one for an “associations of citizens.” 
This decision is a travesty on
a number of levels, but as I discussed with my classes today,
corporations are not humansThomas Jefferson stated: “A bill of
rights is what the people are entitled to against
every government on earth, .  .  .”  These rights are human rights,
essential to our type of government.  They should not be cheapened by
their extension to corporations. 
(I do understand that corporations
have been given “rights” over the years by the Supreme Court, starting
with Santa Clara County v. Southern Pacific Railroad Company.  I just don’t agree with that line of decisions.  And while I agree with Stevens’s Dissent in Citizens, I don’t agree with his adherence to the “corporations are people too” position.)

From the comment thread:

… The root of the problem is that corporations are divorced from their
owners, who have been given a grant of limited liability for the risks
they shift to society, a cloak of anonymity by which they can behave
irresponsibility and seek favors from government, as well as unlimited
lives and deep pockets to make persistent efforts to corrupt.


on February 7, 2010 at 4:27 am | Lampie The Clown

… You mentioned the Santa Clara case as the start of
corporate personhood, without mentioning that it was sleight of hand
and not a real ruling on the subject. That’s exactly what the clerk was
counting on, and why it worked. Just thought I’d tell the rest of the
story.

Actually, long before the Santa Clara case, the legal fiction of
corporations as people was established to include five legal rights—the
right to a common treasury or chest (including the right to own
property), the right to a corporate seal (i.e., the right to make and
sign contracts), the right to sue and be sued (to enforce contracts),
the right to hire agents (employees) and the right to make by-laws
(self-governance). They were given the rights they needed to do the
only thing they were designed to do. Conduct business.

They are amoral, profits and self interest as highest priority are
mandated by law to be part of their design, and they have limited
liability. This gives them the “personality” of a sociopath, and makes
them unsuited by design to using free speech responsibly.

With the current design, the only solution I can think of is to have
Asimov’s “three laws of robotics” made part of all corporate charters. ….

 

One commenter defended the Court with a straight face:

A
Corporation IS an “association of citizens”– those citizens are the
shareholders, i.e., owners of said corporation, who associate ever so
often (annual meetings, and other special occasions)
….

And as for objections to “corporate personhood”, as a person is
created by human parents and grows in a mother’s womb, so too is a
corporation. It is created by the (human) people who sign its original
charter, and the “womb” that allows the corporation to be ‘born’ is
that of the [government] agency that grants corporate charters. The difference
between the two different types of “births” are, in my opinion,
negligible.

(Eventually, human embryos won’t have to be implanted into a person
in order to be born– so the “birth from a human” objection will cease
to have merit.)

As for Lampie’s argument that corporations have “the personality of
a ’sociopath’, (which) makes them unsuited by design to using free
speech responsibly”, this argument that discriminates against REAL
sociopaths (who as far as I know, STILL have their free speech rights
unencumbered by the SCOTUS decision or any comments you’d make to the
contrary). Sociopaths have rights, too!

My sense of humor is a bit underdeveloped, so at first I ignored the “sociopath” assertion and penned a straight response regarding the “association” assertion:

Shawn, several points:

while real people do associate to form a corporation, a corporation
remains a legal fiction created by governments, not the people
“associating” with it. It is legally separate and distinct from them and their
ownership right is considered property.

– Since a corporation is peoples’ property, those [people who own it] have
Constitutional rights to make sure their property is not unjustly or
without due process taken by government.

Other forms of property, like human slaves, were not considered
citizens and did not have Constitutional rights, including a right to
speak.
If slaves and inanimate things couldn’t/can’t speak for Constitutional
purposes, neither does it make any sense to argue that corporations – as
opposed to the people in them – can “speak” under the First Amendment.

– Further, it is crystal-clear that the Founding Fathers hated
corporations, and the ability of states to closely restrict them and to
impose conditions on the privileges and rights they received was
uncontested. It is a radical and profoundly non-originalistic step to
conclude, as the Roberts/Scalia court did, that the Founding Fathers
intended [in the Bill of Rights] to provide Constitutional speech rights to corporations.

Then, getting the joke about sociopaths, I couldn’t resist making a didactic point:

Shawn,
presumably your comment is wholly tongue-in-cheek, but let me note that
we hunt down and lock away (and even execute) sociopaths – thus
depriving them not merely of their speech, but of their ability to harm
us and even their existence in some cases.

If corporations are by nature sociopathic, then we by all means ought to do the same.

Note that we don’t need to lock up corporations; we can find various
ways to change their nature, control their bad behavior and limit their
ability to hurt us – the simplest way, of course, would be to simply
eliminate the limited liability of their shareholders, who would then
have every incentive to control what their [not-so-]little Frankensteins do.

Historic Times: A libertarian view on what liberal Larry Lessig has missed regarding our broken, corrupt government

February 10th, 2010 No comments

I won’t reprise the essay referred to in my preceding post, by which Lawrence Lessig presents his view of our current problems (much of which I agree with, including his conclusion that the “conservative” Roberts Supreme Court five-Justice bloc has acted with considerable activism in overturning centuries of law-making, in a manner that cannot be seen as consistent with any “originalist” interpretation of the Constitution, and that fruits and prospects of such activism are likely to frustrate further legislative attempts at fixes).

While I agree with Lessig’s call for a movement for the Several States to convene a Constitutional Convention, let me note that his analysis certainly has some serious short-comings and blind spots. In my view:

(1) Lessig completely
misses the real root of corruption, which is the grant by states to corporation owners of legal entity status in which owners had no liability for acts of the corporation (unless they specifically directed such acts), which grant was initially jealously guarded and carefully
restricted.
The trickle from this hole in the dike became a flood,
as wealthy investors – eager to fund risky businesses that might give
them great profits while shifting risks to unconsenting third parties –
pressured state lawmakers for a snowballing liberalization – which saw the removal of limits on corporate purposes, corporate life, and corporate ability to own other corporations. As I have discussed repeatedly, the result of the multiplication of
activities, power and negative impacts of limited liability corporations (including their
successful pressuring of courts to eliminate common law tort doctrines that once strongly
protected the rights of property owners, in favor of a social utility balancing) has been a corresponding rise
in demands by citizens that law-makers act to constrain corporate activities, which in turn has produced a steadily escalation in the fight over the wheel of government.

(2) As a
result of this oversight, Lessig fails to consider (i) whether the
states can provide any check on corporate influence via their power to
condition the grant of incorporation/foreign corporation status
(short
of a Constitutional Amendment eliminating corporate “personhood” for
civi rights purposes), instead suggesting that Congress might insist
that corporations engaged in interstate commerce be federally
incorporated and limited and (ii) whether states and federal
governments might regulate BETTER by easing the regulation of
partnerships, similar associations and corporation that have unlimited
liability
, and whose owners have direct incentives to make sure
their executives do not engage the business in activities that generate
a significant risk of liaibilty to others

(3)
Lessig ignores that the reason corporations and labor pour money into buying
favor in Washington is because the federal government is too busy
selling favors
, and such investments pay off – particularly where a
single party gains monopoly control over the pork spigots. Lessig seems blind to considerations of federalism and limited
government, in favor of the premise that anything the people in Congress assembled want to do is okay
, as long wealthy corporations aren’t able to spend money on swaying the election of Congresscritters or buying votes, and if retired Congresscritters are not allowed to pasture too close to Congress..

(4)  As a result, Lessig
fails whether rent-seeking can be checked in part by restoring the once vital
check and balance provided by a vibrant role of states under the
originally envisioned federal system
. For the purposes of restoring power to states, various conservatives have recently been suggesting (i) a reinvigoration of the moribund Tenth Amendment,
which states that non-delegated powers are reserved to the states and
the people (the Supreme Court assisted the federal government in
killing this part of the Bill of Rights via expansive interpretations
of the authority of Congress under the general welfare clause, the
Commerce Clause and the 14th Amendment) and (ii) repeal the requirement of direct elections of Senators under the 17th Amendment, which is argued to have better enabled election pandering and influence by corporations and by national parties.

(5) Finally, Lessig misses that the real reason why the conservative block on the
Roberts Court struck down limits on direct corporate spending
on
political campaigns
(speech is wide open; direct donations to campaigns remain limited, but
will eventually fall on the corporations=persons doctrine) is that the Supreme Court had gradually allowed a two-part corporate speech structure to grow, with speech by “media” corporations being unlimited
(“freedom of the press” getting a separate mention in the First
Amendment), but political speech by other corporations being heavily
regulated
by Congress.

This very imbalanced structure was long resented
by the right, due to the perception that the dull, corporate,
conglomerate”MSM” had been “captured” by ideological enemies on the
left. Resentments began to run the other way with the establishment of
FOX and various corporate-funded “thinktank” groups by the right (which seems heavily invested in the idea #CorpSpeak without, apparently, making any examination of the premises that inanimate legal fictions much different from other human associations have rights to speak and influence to government), but the Roberts court felt that the influence of the “liberal” corporate media was still too strong, and decided simply to do its best to bring down the entire edifice of “media speech” versus #CorpSpeak distinctions.
The Roberts Court appears to have been too timid or incurious to
address the fundamental problems relating to speech by inanimate
institutions with far greater power and far less community check than
individuals, and so blinked at that opportunity, instead opting for
the far lesser but still extremely activist step of taking a demolition
ball to legal restrictions on competition in the flow of ideas from corporations
.

For the curious reader, I note again my preceding posts on  corporate “free speech”.

Those who want to get further stirred up might want to give another
listen to the new music video Anthem of what our Founding Fathers said
to King George:  It’s Too Late to Apologize.

Historic Times: Larry Lessig calls for Constitutional Convention to fix our corrupt, broken government

February 10th, 2010 No comments

Lessig doesn’ expressly say it, but we also need to rein in the “self-evident”, “unalienable rights” of all corporations

Actually, the last quip in the title are my words, not Lessig’s.

Last week, I noted Harvard law prof Lawrence Lessig’s earlier rebuttal to Glenn Greenwald regarding the Supreme Court’s decision in Citizens United to overthrow centuries of American law and jurisprudence on the rights of corporations and to enshrine corporations – legal fictions created by states and with powers very severely restricted at the time the Constitution was negotiated and ratified by Americans who had recently rebelled against British company-structured colonies and monopolies – as entitled to “speech” under the Bill of Rights on the same basis as men, and made the following observation:

As an aside, other, non-corporation forms of property that had real human bodies – such as slaves – were clearly NOT afforded Constitutional rights of any sort at the time of the Revolution/Bill of Rights; freed slaves as they became citizens and non-citizen Chinese coolies received Constitutional protection ONLY when the Fourteenth Amendment was expressly adopted to extend “privileges and immunities” to citizens and “due process” and “equal protection” to “persons”.

It was this reference to “persons” that smart/prevaricating lawyers for extremely influential railroad corporations were able to persuade a sympathetic Supreme Court – in unargued dicta by a Justice and recorded in headnotes by a Court’s Reporter who were both former railroad lawyers – to the effect that either (i) the 14th Amendment-adopting states had all intended to mean that it would be the federal government, and not the states creating corporations or giving them permission to do business in-state, who would determine whether domestic or out-of-state corporations received “equal” protection of state laws as did citizens or (ii) that such was the hidden purpose of some railroad-friendly drafters of the Amendment, and that such hidden purpose should govern in interpreting the Amendment.

Is there any surprise that most of the subsequent 14th amendment case law is about how monied corporations vigorously pursued and advanced their interests, while blacks and foreign residents continued to get short shrift (“separate but equal”) from unconcerned federal judges?

Now, the thoughtful and highly regarded  Lawrence Lessig has written a must-read article in The Nation; “How to Get Our Democracy Back; If You Want Change, You Have to Change Congress” (February 3; February 22 print edition).

I won’t reprise the essay here — I have a few comments on what I see as serious shortcomings and blind spots in Lessig’s analysis, but the draft of these grows long (like my aside above) – rent-seeking; corporations; religion; limited liability; Constitution, speech, states, federalism – so I will post them separately.

Lessig’s article is a key starting point and long enough, though I will advise/remind the curious reader of my preceding posts on  corporate “free speech”..

In calling for amendments to the Constitution, Lessig joins others that have come to the same conclusion years ago, such as “whacko”, snivelling local communities/enviro-commie fascists (snark!) seeking to control the impacts of large multinational corporations on local communities and resources, and some state-righters seeking to breathe some meaning back into the Tenth Amendment and the moribound body of federalism. More on this later.

Those who want to get further stirred up might want to give another listen to the new music video Anthem of what our Founding Fathers said to King George:  It’s Too Late to Apologize.

#CorpSpeak: “Jefferson Was Right”; about the dangers of corporations and of the Supreme Court

February 7th, 2010 2 comments

“I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country.”

Thomas Jefferson, letter to George Logan, 1816 [note: this may be a spurious quote.]

“Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people’s masters.”

Grover Cleveland, 1888

As an aid to readers who want a deeper background on the path that brought us to the latest Supreme Court “free speech” decision that further enthrones corporations over individuals, I’d like to start posting various materials that I’ve  run across. The first is the essay below by Michael P. Byron, a Vietnam-era Navy vet who teaches Political Science at CSU San Marcos, as well as at Palomar, Mira Costa, and Mesa Colleges in San Diego.. He is the author of two books on the dynamics of the collapse of societies and was the Democratic Party’s candidate for the 49th Congressional District in 2002 and 2004. I reprint the essay in full, with Mike`s permission (any bolding or brackets are mine).

Jefferson Was Right 05/24/03

Most Americans don’t know it but Thomas Jefferson, along with James Madison worked assiduously to have an 11th Amendment included into our nation’s original Bill of Rights. This proposed Amendment would have prohibited “monopolies in commerce.” The amendment would have made it illegal for corporations to own other corporations, or to give money to politicians, or to otherwise try to influence elections. Corporations would be chartered by the states for the primary purpose of “serving the public good.” Corporations would possess the legal status not of natural persons but rather of “artificial persons.” This means that they would have only those legal attributes which the state saw fit to grant to them. They would NOT; and indeed could NOT possess the same bundle of rights which actual flesh and blood persons enjoy. Under this proposed amendment neither the 14th Amendment of the US Constitution, nor any provision of that document would protect the artificial entities known of as corporations. Jefferson and Madison were so insistent upon this amendment because the American Revolution was in substantial degree a revolt against the domination of colonial economic and political life by the greatest multinational corporation of its age: the British East India Company. After all who do you think owned the tea which Sam Adams and friends dumped overboard in Boston Harbor? Who was responsible for the taxes on commodities and restrictions on trade by the American colonists? It was the British East India Company, of course. In the end the amendment was not adopted because a majority in the first Congress believed that already existing state laws governing corporations were adequate for constraining corporate power. Jefferson worried about the growing influence of corporate power until his dying day in 1826. Even the more conservative founder John Adams came to harbor deep misgivings about unchecked corporate power. [Such an amendment would have applied only to the federal government; Jefferson was unsuccessful with this proposed item largely because many states already had already enacted very restrictive company laws.] A few years after Jefferson’s unsuccessful attempt to incorporate this amendment into the Bill of Rights, the fourth Chief Justice of the US Supreme Court, John Marshall, unilaterally asserted the Court’s right to judicial review in the seminal case of Marbury v. Madison in 1803. In practice this meant that the Supreme Court would have sole and unchecked power to determine what the Constitution meant. Jefferson was aghast. His fear lay in the knowledge that an unelected branch of government, one which is not subject to the will of the citizens, and is effectively immune from check by the two elected branches of government (Only one Supreme Court Justice has ever been impeached—none have ever been convicted and removed) was now solely responsible for determining the meaning of the Constitution. The meaning of the Constitution, and hence the very nature of our political system, was now in the hands of an un-elected and effectively uncontrollable body. “The Constitution has become a thing of wax to be molded as the Court sees fit” Jefferson lamented. In 1886 Jefferson’s twin Constitutional nightmares collided in a train wreck which has effectively derailed true democracy in this nation and indeed across the globe as other nations have either copied our unfortunate example, or have fallen under the dominion of our multinational corporations—or both.. The precipitating event was the case of Santa Clara County v. Southern Pacific Railroad. This case is cited to the present day as having conferred the status of “natural” as opposed to “artificial” personhood upon American corporations. In fact the Supreme Court declined to rule on the issue. J.C. Bancroft Davis, the Clerk of the Court, an attorney, who curiously was also a former railroad company PRESIDENT, used his position to simply write this conclusion into the head notes which summarized the case. Ever since this fateful event; this sleight-of-hand rewriting of the Constitution, corporations have had the status of “actual” persons whose rights are fully protected by the Constitution. It was a coup against democracy which succeeded because there were no real external checks and balances on the Court, and because the Court itself chose not to act to repudiate Davis’ rewriting of the Constitution. The thing stood. Precedent was established. Jefferson’s “thing of wax” nightmare had come to pass.

[Ed: Allow me to explain briefly the device of the perversion wrought by the Supreme Court, which Byron fails to address. Corporations – which are essentially all creatures of the states, and not the federal government – received Constitutional “personhood” status was through the Equal Protection clause of the Fourteenth Amendment, which Amendment profoundly altered the Constitution. The Constitution and Bill of Rights had restricted the federal government’s authority against states and citizens, but did not regulate the relationship between states and their own citizens (and citizens of other states). But the post-Civil War Fourteenth Amendment, with the purpose of protecting freed slaves, directly limited the authority of state governments over their own citizens via the Privileges and Immunities clause (essentially making the Bill of Rights binding on the states as well); in addition, for the purpose of protecting both citizens and noncitizens (such as the many Chinese in California), the Equal Protection clause mandated that all persons be given the equal protection of each state’s laws. It is this clause that the extremely powerful and wealthy railroad companies – creatures of states – managed to turn into a weapon of the federal government against states, by the proposition that corporations, being recognized as artificial “persons” having a legal status independent of their shareholders, should also be treated as “persons” with Constitutional rights under the the Fourteenth Amendment. The subsequent case history of the Equal Protection clauses show a few cases regarding freed slave and minorities, with federal courts permitting states to treat minorities very shabbily, but a vast majority of cases brought by railroads and other corporations, strictly protecting corporations from unequal treatment..]

Consider the implications: Actual flesh and blood persons are indeed all roughly equal in overall attributes. But a corporation can possess MILLIONS of times greater resources than does any “natural” person, or even a group of such persons. Neither labor unions, nor any other category of “special interest” group possesses this attribute of personhood and so they too are fundamentally and intrinsically unable to compete against corporate “persons.” To make a long and sad story short: The concentrated power of corporate persons has overwhelmed our democratic system. The unsound decisions of our unchecked and unbalanced Supreme Court have handed the “keys to the Kingdom” over to our corporate overlords. An analogy with an AIDS infection is instructive: After 1886, our democratic “immune system” resisted Davis’ corporate personhood infection of our national body politic by deploying the Sherman Anti-Trust Act, the Progressive Movement, the Labor Movement, and the New Deal. All of these bought time. But now, in the era of global mega-corporations, after a long struggle, our “democratic immune system” is finally being overwhelmed. Democracy, rule of, by, and for the people, is dying in America. Contemporary America is a nation almost wholly under the dominion of plutocratically wealthy, corporate quarterly-profit über alles overlords. A seamless web of corporate power connects our multinational corporations with our mass media—now almost wholly owned by a handful of mega-corporations. This military-industrial-media complex largely determines which politicians will and will not get elected. Thus they control the government. They control access to money as well as determine how a candidate will be presented to the viewers. The very policies that our “elected” officials are “allowed” to espouse are rigorously circumscribed: Remember Clinton’s national healthcare proposals? Our media will never tell us that every other developed nation on Earth has universal health care for their citizens. Arguably, our corporate media has seen to it that the average American is as brainwashed as is say, the average citizen of North Korea. Our primary role in this atrocious system is simply to consume. We are consumers, corporate subjects, not citizens. Under this materialistic system our lives are devoid of deep meaning as we are conditioned to work ever harder and go ever deeper in debt to accumulate ever more useless junk as though if we just piled up enough of this crap we would somehow, magically, become happy. What is to be done? Let’s open our eyes and admit that the emperor has no clothes. Let’s admit that our democratic, constitutional, system was derailed more than a century ago. Until we return power to the hands of flesh and blood citizens EXCLUSIVELY, until corporations are summarily striped of “personhood”, until this legal obscenity is abolished, we can have no real freedom, democracy cannot flourish. Furthermore, to ensure that the will of the people is respected and reigns supreme, all members of our federal judiciary must face periodic reelection by the citizens—just as is the case for our judiciary here in California. Until and unless these things come to pass we cannot be a free people. Because we are fundamentally NOT a free people, because our ability to act and to build freely upon our inspirations is constrained by corporate forces beyond our present control, we cannot live up to our full potentials as human beings. Once these goals are accomplished there shall be such an explosion of innovation in economic and political and scientific entrepreneurship as to make Periclean Athens seem timid. It’s up to each of us to act NOW. Freedom itself hangs in the balance.

Supreme Court, others confused about "speech" because they ignore (1) that corporations are not themselves persons, but creatures of the state

February 3rd, 2010 No comments

Further, virtually everyone has been ignoring (2) WHY it is that there is so much concern about corporations and their influence on (and vulnerability to) government: namely, states have allowed individuals (and now other corporations) to form separate, limited-liability legal entities that cut off their owners for any responsibility for the damages that such corporations may do to others.

One of the chief direct consequences of the use of the state to create corporations, as I have discussed in many posts (as the Mises` resident radical enviro), has been massive risk-shifting to the public and cycles of public pressure to use government to rein in corporations. In this, the better organized, longer-lived  and deeper pocketed corporations always having a leg up on gaming the drafting and interpretation of laws and regulations, and using government to steal further from/shift risks to the public at large and to hobble competitors. Thus the indirect consequences of the grant of a limited liability corporate personhood include not simply the financial crisis, but the growing distrust of government, corporations, politicians and voters of a different political stripe and the ramp-up in reasons to fight over the wheel.

I think that the Supreme Court decision in Citizens United v. Federal Election Commission is wrong, chiefly because the First Amendment is about HUMAN speech, while corporations – though associations of humans – have a distinct legal identity and very different characteristics.

The decision is also wrong because the Roberts court fails to acknowledge that just as the state can create corporations, so also can it condition their existence on refraining from political speech (making political contributions, etc.), or regulate their speech via excise taxes or the like (just as the federal government so conditions the grant of income tax-free status to religious groups and non-profits on express restrictions on political speech). But far better to attack the problem at the root of incorporation (or at the Constitutional level) than by a host of federal-level laws and regulations – including those remaining on churches and NPOs.

I have commented on these points in a blog thread at the libertarian/right-leaning legal blog, The Volokh Conspiracy.

TokyoTom says:

Leo Mrvin: I haven’t given this much thought, but is it really inconceivable that if the First Amendment didn’t protect corporations, individuals who wanted to pool resources in mass media vehicles for political speech would do so without the benefit of limited liability?

Dilan EsperYou can make this argument, but it begs the question, because then the issue is simply re-stated as “can the government condition limited liability on individuals giving up their associational speech rights?”. 

In this case the question conflates the states which approve corporate status with the federal government, but why would such a question prove difficult? The federal government provides tax exemptions to religious and other groups on the express condition that they refrain from political speech.

It doesn‘t take much digging to see how profoundly the grant of limited liability to corporate shareholders has snowballed into the massive struggles for favor and regulation that we see today. Confused decisions that corporations (as opposed to those who own and staff them) have Constitutional rights has greatly contributed to this [- even as these decisions constantly acted to shift power from citizens and the states to the federal government] . (Likewise, the federal income tax has also perversely entangled the state in religious organizations and political speech.)

TokyoTom says:

If Congress can Constitutionally limit the speech of people who choose to associate as non-profit churches etc., why cannot it likewise limit the speech who choose to accept the favor of a state grant of limited liability?

 

John Dewey says:

The discussions about whether corporations have the rights of people and about whether the Founding Fathers could have considered corporations — is any of this relevant?

The First Amendment protects a citizen from a powerful government which would decide what speech the citizen would be allowed to read or hear. It’s not a right granted to a speaker, but a right granted to a listener or reader. As such, it makes no difference whether the speech being protected comes from a single person, a non-profit organization, a union. a church, or a corporation. It is not the speaker but rather the speech — and the right of the citizen to hear it — which is being protected.

TokyoTom says:

John, I disagree. The First Amendment is about the peoples‘ rights to gather and to speak privately and publicly, including reporting on government.

Corporations are not people — but legal fictions that are creatures of their owners and the State, which protects their owners by giving them a special grant of limited liability. Corporations may parrot the words of particular people with in the firm, but they [corporations], like parrots, are not people and do not “speak” themselves. (Actually, this is unfair to parrots and other animals, which deliberately attempt to convey meaning to others, and not as a sock puppet for another person/animal/entity.)

While I‘m no fan of corporate income taxes, just as the federal government can condition “non-profit” status on a waiver of political speech rights by churches and other forms of legal entities, so states condition the grant of corporate status on the owners‘ acceptance that they cannot use the corporation as a political mouthpiece (such a use could be made expressly ultra vires), and so should states and the federal government be able to limit or tax political speech by corporations.

Not only would this be good law, but in my view entirely good policy by doing much to slow rent-seeking via large corporations, by removing incentives for wealthy investors to influence public officials and public debate. Let the rich (and others) speak for themselves – anonymously if they choose – but we can and should stop the money-laundering of speech through corporations.

The Roberts court showed it didn‘t have the strength of its convictions by upholding the part of McCain-Feingold that mandates disclosure of who is funding speech — in my view, this is incorrect. Anonymous speech very much SHOULD be allowed – but only for individuals and organizations that have not been granted limited liability by the state.

The chief sticky side issue here is the political gagging of churches and NGOs arising from the desire for favorable tax treatment [on this, the solution lies both in ending limited liability and in ending corporate income taxes].

Is a roll-back of the "War on Drugs" brewing? US House unanimously approves bill to establish study commission

January 19th, 2010 1 comment

i ran across the following article in the UK’s Independent, but surprisingly the news doesn’t seem to have aroused the slightest interest in the US media:

US waves white flag in disastrous ‘war on drugs’

After 40 years of defeat and failure, America’s
“war on drugs” is being buried in the same fashion as it was born –
amid bloodshed, confusion, corruption and scandal. US agents are being
pulled from South America; Washington is putting its narcotics policy
under review, and a newly confident region is no longer prepared to
swallow its fatal Prohibition error. Indeed, after the expenditure of
billions of dollars and the violent deaths of tens of thousands of
people, a suitable epitaph for America’s longest “war” may well be the
plan, in Bolivia, for every family to be given the right to grow coca
in its own backyard.

The “war”,
declared unilaterally throughout the world by Richard Nixon in 1969, is
expiring as its strategists start discarding plans that have proved
futile over four decades: they are preparing to withdraw their agents
from narcotics battlefields from Colombia to Afghanistan and beginning
to coach them in the art of trumpeting victory and melting away into
anonymous defeat. Not surprisingly, the new strategy is being gingerly
aired in the media of the US establishment, from The Wall Street
Journal to the Miami Herald.

What “white flag”? The article refers to a bill passed unanimously by the US House of Representatives in December (Dec. 8) to establish an independent commission (the “Western
Hemisphere Drug Policy Commission”) that will be charged with evaluating U.S. policies and programs
aimed at reducing illicit drug supply and demand in the Western
Hemisphere an independent commission. It’s rather pathetic that Congress needs an “independent commission” to hash out a change of policy in this area, but presumably no Congresscritters want to look like they are “soft on crime” in advance of mid-term elections.

Maybe I just haven`t been reading carefully (I was aware that the Obama administration had announced it would no longer be raiding state-approved medical marijuana dispensaries), but this is a BIG story, and GREAT news!

So where’s the coverage? Perhaps no one really cares to cover the story at home because it requires facing how disastrous our policies have been abroad, but at home as well, and shows how much prestige and influence the US has lost during the Bush terms?

In any case, I hope that libertarians will examine, critique and cheer on these developments.

I did find a little bit of domestic contemporaneous coverage of the US House actions last year.

http://www.miamiherald.com/news/columnists/andres-oppenheimer/story/1374578.html

http://ipsnews.net/news.asp?idnews=49657

http://transform-drugs.blogspot.com/2009/12/us-takes-long-hard-look-at-war-on-drugs.html

Maybe Obama will be able to find other uses for War on Drugs authority and budgets?  It would be nice to see the states start to wrest control back over this matter, but it is hard to expect any easy devolution of hard-won federal authority.

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