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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.

Towards a productive libertarian approach on climate, energy and environmental issues

February 10th, 2010 No comments

[This is a work in progress and largely taken from previous posts, but readers might find some value in it in the meanwhile.]

1. Heated but vacuous climate wars

On environmental issues in general and climate in particular, find me someone (like George Will) ranting about “Malthusians” or “environazis” or somesuch, and I’ll show you someone who doesn’t understand – or refuses to acknowledge – the difference between:

(1) wealth-creating markets based on private property and/or voluntary interactions/contracts protected by law, and

(2) the tragedy of the commons situations that result when there are NO property rights (atmosphere, oceans), when the pressures of developed markets swamp indigenous hunter-gather community rules, in many cases where governments formally own and purport to manage “public” resources, and when governments absolve purportedly “private” actors from liability for harms to others (such as via grants of “limited liability“).

So what’s the deal? Here’s a perfect opportunity for skeptics to educate the supposedly market ignorant, but they refuse, preferring to focus instead on why concerned scientists must be wrong, how concerns by a broad swath of society about climate have become a matter of an irrational, deluded “religious” faith, or that those raising their concerns are “misanthropes” or worse.

Such pigheadedness is met by those on the left likewise see libertarians and small-government conservatives as deluded and/or deliberate pawns of evil Earth-destroying corporations.

Both sides, it seems, prefer to fight – and to see themselves as right and the “others” as evil – rather than to reason.

While we should not regret that we cannot really constrain human nature very well, at least libertarian and others who profess to love markets ought to be paying attention to the inadequate institutional framework that is not only poisoning the political atmosphere, but posing risks to important globally and regionally shared open-access commons like the atmosphere and oceans (which are probably are in much more immediate and grave threat than the climate). And they also ought to recognize that there are important economic interests that profit from the current flawed institutional framework and have quite deliberately encouraged the current culture war.

2. Why the reflexive libertarian disengagement?

I have on numerous occasions tried to point out, to posters on the Mises Blog who have addressed climate issues, the stunning unproductivity of the approach that they have taken — that of focussing on science and dismissing motivations and preferences, rather than exploring root causes and middle ground, and have continued to scratch my head at the obstinacy and apparent lack of vision.

The following seem to be the chief factors at work in the general libertarian resistance to any government action on climate change:

– Many libertarians, as CEI’s Chris Horner has stated,  see “global warming [as] the bottomless well of excuses for the relentless growth of Big Government.”  Even libertarians who agree that is AGW is a serious problem are worried, for good reason, that government approaches to climate change will be a train wreck – in other words, that the government “cure” will be worse than the problem.

– Libertarians have in general drifted quite far from environmentalists (though there remain many productive free-market environmentalists/conservationists). Even though libertarians and environmentalists still share a mistrust of big government, environmentalists, on the one hand, generally have come to believe that MORE government is the answer, despite all of the problems associated with the socialized ownership of resources and/or inefficient bureaucratic management (witness the crashing of many managed fisheries in the US), the manipulation of such management to benefit bureaucratic interests, special interests and insiders (wildfire fighting budgets, fossil fuel and hard rock mining, etc.) and the resultant and inescapable politicization of all disputes due to the absence of private markets. On the other hand, many libertarians  reflexively favor business over “concerned citizens”, while other libertarians see that government “solutions” themselves tend to snowball into costly problems that work in favor of big business and create pressures for more government intervention. Thus, libertarians often see environmentalists as simply another group fighting to expand government, and are hostile as a result.

– Libertarians are as subject to reflexive, partisan position-taking as any one else. Because they are reflexively opposed to government action, they find it easier to operate from a position of skepticism in trying to bat down AGW scientific and economic arguments (and to slam the motives of those arguing that AGW must be addressed by government) than to open-mindedly review the evidence or consider ways that libertarian aims can be advanced by using the pressure from “enviro” goals.

This reflexive hostility – at times quite startingly vehement – is a shame (but human), because it blunts the libertarian message in explaining what libertarians understand very well – that environmental problems arise when property rights over resources are not clearly defined or enforceable, and when governments (mis)manage resources, and that there are various private steps and changes in government policy that would undo the previous government actions that are at the root of environmentalists’ frustrations.The reflexive hostility is also a shame because it has the effect, in my mind rather clearly, of rendering libertarians largely blind to the ways that large energy, power and certain manufacturing corporations continue to benefit from (and invest heavily in maintaining) the existing regulatory structure, in ways that shift large costs and risks to unconsenting third parties.

– There are some libertarians and others who profess to love free markets at AEI, CEI, Cato, IER, Master Resource and similar institutions that are partly in pay of fossil fuel interests, and so find it in their personal interests to challenge both climate science and policy proposals that would impose costs on their funders.

I felt particularly struck by the commonness of a refrain we are hearing from various pundits who prefer to question the good will or sanity of environmentalists over the harder work of engaging in a good faith examination and discussion of the underlying institutional problem of ALL “environmental” disputes:  namely, a lack of property rights and/or a means to enforce them. 

3. The whys of climate concerns and calls for “clean” energy

I want to get started with a list of policy changes that I think libertarians can and should be championing in response to the climate policy proposals of others.

The incessant calls for – and criticism of – government climate change policies and government subsidies and mandates for “green/clean power” both ignore root causes and potential common ground.  As a result, both sides of the debate are largely talking past each other, one talking about why there is a pressing need for government policy to address climate change concerns, while the other is concerned chiefly about the likelihood of heavy-handed mis-regulation and wasted resources. This leaves the middle ground unexplored.

There are plenty of root causes for the calls for legislative and regulatory mandates in favor of climate policies and clean / green / renewable power, such as:

  • concerns about apparent ongoing climate change, warnings by scientific bodies and apprehensions of increasing risk as China, India and other developing economies rapidly scale up their CO2, methane and other emissions,
  • the political deals in favor of environmentally dirty coal and older power plants under the Clean Air Act,
  • the enduring role of the federal and state governments in owning vast coal and oil & gas fields and relying on the royalties (which it does not share with citizens, but go into the General Pork Pool, with a relatively meager cut to states),
  • the unwillingness of state courts, in the face of the political power of the energy and power industries, to protect persons and private property from pollution and environmental disruption created by federally-licensed energy development and power projects,
  • the deep involvement of the government in developing, encouraging and regulating nuclear power, and
  • the frustration of consumer demand for green energy, and the inefficient and inaccurate pricing and supply of electricity, resulting from the grant by states of public utility monopolies and the regulation of the pricing and investments by utilities, which greatly restricts the freedom of power markets, from the ability of consumers to choose their provider, to the freedom of utilities to determine what infrastructure to invest in, to even simple information as to the cost of power as it varies by time of day and season, and the amount of electricity that consumers use by time of day or appliance.

4. Is a small-government, libertarian climate/green agenda possible and desirable?

So what is a good libertarian to suggest? This seems rather straight-forward, once one doffs his partisan, do-battle-with-evil-green-fascist-commies armor and puts on his thinking cap.

From my earlier comment to Stephan Kinsella:

As Rob Bradley once reluctantly acknowledged to me, in the halcyon days before he banned me from the “free-market” Master Resource blog, “a free-market approach is not about “do nothing” but implementing a whole new energy approach to remove myriad regulation and subsidies that have built up over a century or more.” But unfortunately the wheels of this principled concern have never hit the ground at MR [my persistence in pointing this out it, and in questioning whether his blog was a front for fossil fuel interests, apparently earned me the boot].

As I have noted in a litany of posts at my blog, pro-freedom regulatory changes might include:

Other policy changes could also be put on the table, such as:

  • an insistence that government resource management be improved by requiring that half of all royalties from mineral and fossil fuel development be rebated to citizens (with a slice to the administering agency), and
  • reducing understandable NIMBY problems by (i) encouraging project planners to proactively compensate persons in affected areas and (ii) reducing fears of corporate abuses, by providing that corporate executives have personal liability for environmental torts (in recognition of the fact that the profound risk-shifting that limited liability corporations are capable of that often elicits strong public opposition and fuels regulatory pressure).

5. Other libertarian discussants

A fair number of libertarian commenters on climate appear to accept mainstream sciences, though there remain natural policy disagreements. Ron Bailey, science correspondence at Reason and Jonathan Adler, a resources law prof at Case Western, Lynne Kiesling at Knowledge Problem blog, and David Zetland, who blogs on water issues, come to mind.

I`m not the only one – other libertarian climate proposals are here:

  • Jonathan Adler at Case Western (2000); he has other useful commentary here, here,
  • Bruce Yandle, Professor Emeritus at Clemson University, Senior Fellow at PERC (the “free market” environmentalism think tank) and a respected thinker on common-law and free-market approaches to environmental problems, has in PERC’s Spring 2008 report specifically proposed a A No-Regrets Carbon Reduction Policy;
  • Iain Murray of CEI; and
  • Cato’s Jerry Taylor is a frequent commentator and Indur Goklany has advanced a specific climate change-targeted proposal.
  •  AEI’s Steven Hayward and Ken Green together have provided a number of detailed analyses (though with a distinct tendency to go lightly on fossil fuels).

Several libertarians recently urged constructive libertarian approaches to climate change:

There have been several open disputes, which indicate a shift from dismissal of science to a discussion of policy; the below exchanges of view are worthy of note:

  • The Cato Institute dedicated its entire August 2008 monthly issue of Cato Unbound, its online forum, to discussing policy responses to ongoing climate change.  The issue, entitled “Keeping Our Cool: What to Do about Global Warming“, contains essays from and several rounds of discussion between Jim Manzi, statistician and CEO of Applied Predictive Technologies, Cato Institute author Indur Goklany; climate scientist Joseph J. Romm, a Senior Fellow at the Center for American Progress; and Michael Shellenberger and Ted Nordhaus, the co-founders of The Breakthrough Institute.  My extended comments are here.
  • Reason Foundation, posted an exchange on Climate Change and Property Rights June 12th, 2008 (involving Reason’s Shikha Dalmia, Case Western Reserve University law professor Jonathan H. Adler, and author Indur Goklany); discussed by Ron Bailey of ReasonOnline here; here`s my take.
  • Debate at Reason, October 2007, Ron Bailey, Science Correspondent at Reason, Fred L. Smith, Jr., President and Founder of CEI, and Lynne Kiesling, Senior Lecturer in Economics at Northwestern University, and former director of economic policy at the Reason Foundation.
  • Reason Foundation, Global Warming and Potential Policy Solutions September 7th, 2006 (Reason’s Shikha Dalmia, George Mason University Department of Economics Chair Don Boudreaux, and the International Policy Network’s Julian Morris).

 

Finally, I have collected here some Austrian-based papers on environmental issues that are worthy of note:

Environmental Markets?  Links to Austrians

Ones such paper is the following: Terry L. Anderson and J. Bishop Grewell, Property Rights Solutions for the Global Commons: Bottom-Up or Top-Down?

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.

It's "Too Late"?! See/enjoy this GREAT new Anthem of the Revolution. Perhaps, as Jefferson suggests, we need an anthem like this for our time

February 6th, 2010 No comments

There’s a nice little music video out – just released by a speciality history curriiculum publishing firm – with a hsitory lesson that really seems to be hitting a chord with the growing chorus of people who are upset with government (including Glenn Reynolds, Moe Lane and some others – I expect the left to catch on as well).

It’s called “Too Late to Apologize: a Declaration“, and stars Thomas Jefferson as lead vocalist/keyboardist, John Hancock, John Adams, Sam Adams, Benjamin Franklin on guitar and King George.

I love it, and I’s sure you’ll like it too.

Maybe some stirred up watchers can suggest some lyric tweaks to bring this up to date for our latest usurpers? There are plenty of good targets, such as:

  • our runaway federal government and the politicians who pander to us and distract us with wars & shallow, divisive political drama, while spreading pork and legislative & regulatory largess to favored corporations,
  • the powerful corporations (including our corporate “news” conglomerates) that our Founders were determined to oppose – but
    which hijacked the 14th Amendment to trump local/states rights and become “persons” with unalienable rights
    (now even under the Bill of Rights!), and the
    Supreme Court that has arrogated to itself the right to turn the
    Constitution into whatever they say it means, thus aiding both a
    grasping central government and the corporate-tied elites who direct it.

Without further ado, here’s the video! (lyrics below)

[View:http://www.youtube.com/watch?v=uZfRaWAtBVg:650:0]

Lyrics:

Halfway across the globe
And we’re standing on new ground
Screaming ‘cross the waves
You can’t hear a sound
There’s no fair trials, no trade, no liberties
No tea
We’ve colonized America; we won’t stand for tyranny,
Oh king

And it’s too late to apologize
It’s too late
I said it’s too late to apologize
It’s too late

We’ve paid your foolish tax, read the acts
And they just won’t do
We want to make it clear, we believe this much is true
All men were created with certain

Unalienable rights
Among these are life, liberty, and the pursuit
Of happiness

And it’s too late to apologize
It’s too late
I said It’s too late to apologize
It’s too late

It’s too late to apologize
It’s too late
I said it’s too late apologize
It’s too late

I said it’s too late to apologize, yeah
It’s too late
I said it’s too late to apologize, yeah

Halfway across the globe
And we’re standing on new ground

 

#PoliticsInc: More on WHY #CorpSpeak is radical, nonsensical & dangerous judicial activism

February 5th, 2010 No comments

Below is another handy summary of my Constitutional arguments against #CorpSpeak and #politicsInc (Twiter hashtags, for those of you who may be unfamiliar with them), copied from another comment thread at Volokh Conspiracy.

Readers should not forget that it is the state grant of limited liability that – as I have discussed in many posts – lies at the root of our burgeoning fights over government and public distrust (extending even to my quaint pet enviro concerns), 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 (with little concerns greater than what provides the largest profits and bonuses) and can seek favors from government, as well as unlimited lives and deep pockets to make persistent efforts to corrupt.

Yes, I may be repeating myself, but core libertarian concerns are at stake. Here are my comments, with a few slight tweaks:

TokyoTom says:

I missed this conversation, while continuing to argue on Jon‘s
initial thread that CU is radical, nonsensical and dangerous judicial
activism: http://volokh.com/2010/01/21/citizens-united/

Let me note a few thoughts:

– the First Amendment was not amended to extend “speech” from humans to nonhumans of any kind;

– as corporations are creatures of the state — with special benefits
extended to shareholders in them that are unavailable otherwise via
contract or common law — the state has every ability to limit the
powers of corporations;

– in the same way, governments routinely condition extensions of
benefits on acceptance of limits on speech; prominent examples include gag rules on churches and other nonprofits, and on
doctors in hospitals that receive federal funding;

– the equation of corporations — which have a legal status distinct
from their owners — with individuals and other forms of voluntary
organizations that retain unlimited liability is invidious, and blurs
the very real distinctions between them. When corporations “speak”, WHO
is talking? (The growth of corporations and the lack of shareholder
liability has led to a continued attenuation of SH control, for the
benefit of managers.)

– if corporations were held to have NO Constitutional speech rights,
the real human beings who work at, manage or own them would retain all
of their Const rights of speech and redress — but at their own direct
expense. All that would be lost would be the ability of some to mask
their identity, to claim that they represent all, and to pay for their
speech by picking the pockets others (a point one wishes Kagan had
better understood and made).

 

[Update] Geo-engineering: Say It Ain't So, Bill! World's richest man revealed as sugar daddy to vicious/crackpot/envirofascist cult "scientists"

February 4th, 2010 No comments

[Note: Hope the obvious snark isn`t too confusing; some simple thoughts on an alternative view are at bottom.]

An obviously deluded Bill Gates apparently:

  • has become a global warming/carbon cultist and/or
  • has been suckered by carbon-trading swindlers or modern-day sellers of snake oil serums, and/or
  • has a plan to get even more rich by cornering the market on climate moderation services, in part through abusively seeking patents on techniques to geo-engineer the stratosphere.

An article at “Science, the propaganda arm of the American Association for the Advancement of Science, revealed on January 26 that Gates has been funding “atmospheric scientist” Ken Caldeira and others over the past three years, out of his own pocket and to the tune of $4.5 million. Caldeira was recently in the news in connection with Steven Levitt’s and Stephen Dubner’s latest Freakonomics book, which showed that even in the unlikely even that it turns out that puny mankind actually influences the climate, that wizbang mankind has a simple and easy solution. Gates, it turns out, is co-conspirator in Intellectual Ventures, the venture started by genius Nathan Myhrvold, whom is also prominently referred to in Freakonomics. Apparently, Intellectual Ventures has already been busy filing patent applications.

It`s not entirely clear what Gates, Myhrvold, Caldeira, Levitt and Dubner are up to, but since faithful readers at LvMI all know that climate change simply isn`t happening, whatever it is, it can`t be any good, can it? Sure, Gates and Myhvold are privately funding science, but aren`t they really simply creaming information off of the public investment in climate research, while seeking monopoly gains through crackpot geoengineering schemes that they hope their elite friends in our Big Brother government will fund via a massive, coercive use of tax dollars? And isn`t this exactly the reason why Levitt and Dubner, as front men, have been softening up the public for this type of soaking?

[If there`s going to be any large-scale geoengineering, LvMI readers all hope it will be conducted in a purely private manner, as suggested by our own thinking men, who have been in the forefront on intelligent schemes for man to cool the planet (by the atmospheric use of atom bombs to induce a mild nuclear winter).]

Here are a few excerpts for time-pressed readers, including some insightful remarks in the comments by a reader who is up to Gates`s tricks, and some possible further misdirection by Caldeira:

Billionaire philanthropist Bill Gates has been supporting a wide array of research on geoengineering since 2007, ScienceInsider has learned. The world’s richest man has provided at least $4.5 million of his own money over 3 years for the study of methods that could alter the stratosphere to reflect solar energy, techniques to filter carbon dioxide directly from the atmosphere, and brighten ocean clouds. …

Caldeira and physicist David Keith of the University of Calgary in Canada have been in charge of deciding how to dispense the money ….

Recipients of the funding include Armand Neukermans, an inventor based in Silicon Valley who is working with colleagues to design spray systems for the marine clouds, and students and scientists working for Keith and Caldeira. Funding has also helped support scientific meetings in geoengineering in Cambridge, Massachusetts, and Edinburgh, Scotland, and aeronautics research related to altering the stratosphere.

There are other grantees, Keith says, but he declined to identify them or say why. “This is like a little private funding agency,” he says, though he says they plan to release more information.

Gates has shown interest in geoengineering research before. He is an investor in Intellectual Ventures, a Seattle, Washington–area firm that pursues inventions and has applied for patents on techniques to geoengineer the stratosphere. Along with officials from that organization, Gates applied for a patent in 2008 to sap hurricanes of their strength by mixing surface and deep ocean water.

What’s his ultimate goal? Gates “views geoengineering as a way to buy time but it’s not a solution to the problem” of climate change, says spokesperson John Pinette. “Bill views this as an important avenue for research—among many others, including new forms of clean energy.” (Pinette works for BCG3, a think-tank type firm Gates started last year which has no apparent role thus far in supporting geoengineering.) “Scientific and technological advances are making it possible to solve big, complicated problems like never before,” writes Gates on the Web site of the Gates Foundation, which is also not involved in the geoengineering work.

Here’s an insightful comment by a level-headed reader:

At geoengineeringwatch.org it is stated that Bill Gates and Caldeira have filed for a joint patent. All the world should take that into consideration when looking into the ethics of all this. Caldeira has gone from science to money and that Genie aint ever going back into the bottle.

It also says that Caldeira doesn’t advocate deployment. So patents are made by people who dont intend to use them?

There is a major crime going on here. Science is the same thinking that got our world into the tipping point on the cliff position we are in now. Einstein wouldn’t have the problem solving the problem.

Caldeira’s WORDS are correct…we should not deploy. Thats where it ends. There will never be trust from humanity at this point…not to THESE people.

The message from science is so confused….we are warming, we aren’t , we can spray the atmosphere, but we will lose the corals…

and even more troubling…our skies are SPRAYED EVERYDAY…Mr Caldeira doesn’t seem to want to admit what half the world knows by now…Perhaps a third grade science student should teach him a little about contrails.

So why trust him…or any of them. They are arrogant beyond belief.

It is really quite simple: either we use geoengineering or come up with a cheap clean energy production technology. If neither of those two things happen to prevent the carrying capacity of the Earth from falling dramatically, the human population will have to be culled, either deliberately or through a natural bottleneck.

We are indisputably into The Sixth Great Extinction, and preserving the Earth for future generations is BY FAR more important than the fate of the current generation of selfish mass murders who would rather destroy the Earth’s ecosystems than change their self-destructive habits.

By the way, I am only stating the facts, not advocating any action. There is only so much any one individual can do.

[Here’s a start on an alternative read, for those of you who made it this far:
  • Bill Gates, not a stupid man, is honestly worried that we (including China, India, etc.) may be boxing ourselves in on climate change, and regards the potential consequences as serious enough that it is worth his investment into investigating how we might abate such changes.
  • Myhrvold and Caldeira honestly hold their own similar views that climate change is a concern and that geo-engineering research is desirable.
  • Scientist Caldeira – assuming those are indeed his comments – illustrates the concern that has been widely expressed by scientists about how mankind has been rapidly altering ecosystems, threatening not simply biodiversity that they personally highly value, but also the ability of those ecosystems to support still burgeoning human populations. To put it mildly, Caldeira is “hair-on-fire” concerned]
  • All of this should give pause to those who, understandably reluctant to see a further expansion of government, prefer to believe that there are no real risks as economic actors who bear no liability for any subsequent consequences continue, at an accelerating pace, to free up all of the Earth`s stored fossil carbon, to alter albedo via soot and land changes, to strip indigenous lands in favor of corporate-owned monocultures, and to strip the seas of wild fish and to alter the pH of the oceans. (a litany which is all easily documented)

The crux of the Constitutional analysis of corporate "personhood" and "speech"

February 4th, 2010 No comments

Further to my four preceding posts, I copy below a further comment that I left on a thread at The Volokh Conspiracy, which I think summarizes the core Constitutional issue:

TokyoTom says:

John Dewey:
Sorry, Tom. You can disagree with me, but the majority on the U.S.
Supreme Court agrees with me. Justice Scalia made it very clear that
the First Amendment protects not speakers but rather speech:

“The Amendment is written in terms of “speech,” not speakers. Its text offers
no foothold for excluding any category of speaker, from single
individuals to partnerships of individuals, to unincorporated
associations of individuals, to incorporated associations of
individuals” 

John, I‘m quite aware of what the court has held, but they‘re
clearly missing a very obvious distinction: for Constitutional purposes
PEOPLE “speak”, not animals or other things. A corporation is certainly
an association of individuals, each of whom has his own right to speak.
But a corporation is a THING, legally distinct from its owners. Does a
corporation speak for itself, or for others — who bear no liability for
any false, tortious or criminal speech?

Further, corporations are creatures of the state, so the state has
the right to determine their powers. Just as the Rehnquist court held
that the government can gag doctors at clinics that accept federal aid,
and just as the government still gags churches and other groups that
want federal non-profit tax status, so can the state limit the right of
owners of corporations to speak through them.

This should be an easy issue, but the Court obfuscates by comparing
stated-created corporations, whose owners have received the special
privilege of not being liable for any acts of the corporation, with
“single individuals to partnerships of individuals, to unincorporated
associations of individuals”, none of which is an artificial,
statutorily-created entity with rights or obligations in excess of
those of their owners.

If the Court had held that corporations are things — not “persons —
and thus do no utter “speech” for purposes of the First Amendment, this
would not at all affect the ability of any class of real, live human
being associated with them to speak. Employees, managers and owners
could all speak individually, or form groups for doing so.

The Court‘s decision here is completely wrong-headed.

Categories: constitution, corporations, free speech Tags:

Delicious! Corporation seeks to test its civil rights wings by running for Congress in Maryland

February 3rd, 2010 No comments

PR.Watch.org succinctly summarizes:

Now that the Supreme Court has ruled that corporations are entitled to the same free speech and political rights as American citizens, Murray Hill, Inc., a public relations and advertising firm in Maryland has announced that it intends to run for Congress in Maryland’s 8th Congressional district. In an undated press release
posted on the company’s Web site, Murray Hill says, “Until now,
corporate interests had to rely on campaign contributions and
influence-peddling to achieve their goals in Washington. But thanks to
an enlightened Supreme Court, now we can eliminate the middle-man and
run for office ourselves.” Murray Hill states that it plans on spending
“top dollar” to protect its investment in government, adding, “We
bought it, we paid for it, and we’re going to keep it.” The company
plans to run as a Republican in the primary, and announced that it will
run an aggressive, historic campaign that “puts people second” or even
third. Murray Hill will be the first corporation to test the Supreme
Court’s new ruling conferring political free speech rights on
corporations. Murray Hill has designated a human to fill out the
necessary forms to apply for its run for office, and it’s political
slogan is “Corporations are people too!” It has started a Facebook page and says it plans on using automated robo-calls, “astroturf” lobbying, and computer-generated avatars to win over voters.

More here: http://www.murrayhillweb.com/pr-012510.html

here: http://www.huffingtonpost.com/william-klein/supreme-court-ruling-spur_b_437871.html

here: http://www.huffingtonpost.com/william-klein/corporate-persons-get-sho_b_440468.html

here: http://www.murrayhillweb.com/new_day/index.html

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