TT's Lost in Tokyo — by TokyoTom

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A Declaration of Independence

from Handhelds

A Modern Civic Broadside • July 2026

When in the Course of Human Events it becomes necessary for a People to dissolve the attentional bands which have connected them to their Devices, and to assume among the powers of the Earth the separate and undistracted station to which Nature and Nature’s Sleep schedule entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident: that all Persons are endowed with certain unalienable faculties, among these Attention, Reflection, Memory, Conversation, Judgment, Responsibility, and the Capacity to stand in a queue without staring at a Screen; that to secure these faculties, tools are instituted among Men, deriving their usefulness from the informed consent of their users; that whenever any Tool becomes destructive of these ends, it is the Right of the People to silence, disable, uninstall, or otherwise cast it into the nearest desk drawer.

We further hold that Human Flourishing arises not merely from liberty secured but from liberty exercised; that the faculties of Judgment, Communication, Collaboration, Reciprocity, and Mutual Accountability are cultivated only through their use; that Communities endure when their members Participate directly in the work of governing their common affairs.

Prudence, indeed, will dictate that devices long established should not be discarded for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer notification overload while evils are sufferable than to right themselves by abolishing the apps to which they are accustomed. But when a long train of pings, nudges, alerts, recommendations, updates, badges, vibrations, algorithmic inducements, and digital dependencies evinces a design to reduce them under absolute Distraction, it is their right, it is their duty, to throw off such Handheld Dominion.

Such has been the patient sufferance of these Users; and such is now the necessity which constrains them to alter their former Systems.

The history of the Present Smartphone is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Empire over the Attention of its Users. To prove this, let Facts be submitted to a candid world.

It has interrupted our thoughts with Notifications at times most inconvenient and least necessary.

It has persuaded us that every vibration is urgent, and every silence suspicious.

It has deprived us, in many cases, of the ability to complete a sentence before consulting another source.

It has rendered fleeting curiosities Sovereign over settled Purposes.

It has substituted the Endless Scroll for the happy conclusion.

It has joined with Algorithms unknown to our constitutions, giving their assent to suggestions over which no Citizen has exercised meaningful control.

It has caused us to compare our daily lives against the carefully edited Triumphs of strangers.

It has fostered false divisions among the People, rewarding those passions which inflame for a moment above those affections which bind for a lifetime.

It has encouraged us to photograph feasts rather than enjoy them, sunsets rather than behold them, and children rather than attend to them.

It has made every man his own publisher, every woman her own broadcaster, and every fool his own Authority.

It has rewarded Outrage above reflection, Immediacy above accuracy, and False Confidence above competence.

It has induced citizens Assembled in the same room to communicate chiefly through Distant Servers.

It has inflicted upon us meetings in which participants are present neither in body nor in spirit, but only intermittently in bandwidth.

It has transformed waiting, once a nursery of contemplation, into a condition thought intolerable.

It has filled our hours with headlines, our minds with fragments, and our memories with little.

It has erected, through recommendation engines, innumerable echo chambers and filter bubbles, whereby each Person may be assured that his opinions are universally shared and self-evidently correct.

It has drawn Children into endless contests for approval measured by numerical counters visible to all.

It has delivered News from every corner of the Earth whilst diminishing our acquaintance with our Neighbors.

It has accustomed us to inhabit constructed worlds of endless novelty whilst neglecting the enduring companionship of forests, fields, rivers, gardens, the open sky, and the living creatures with whom we share the Earth.

It has made us perpetually reachable, and thereby frequently inaccessible.

Nor have these Devices been alone in their offenses. Behind them stand vast Corporations, nurtured by Governments and protected by Laws, which have accumulated Powers exceeding those once possessed by many States and resembling those against which free Peoples have long struggled.

Though chartered as instruments, they have aspired to become Sovereigns.

Though created to serve the Public, they increasingly command it.

Though answerable in theory to Citizens and Consumers, they have rendered Citizens and Consumers increasingly answerable to them.

They have gathered unto themselves the habits, movements, associations, purchases, preferences, conversations, curiosities, and secret anxieties of whole Peoples, converting the ordinary facts of human life into commodities of trade.

They have erected systems whereby Citizens are observed continuously whilst the Observers remain unidentified and unseen.

They have joined with Governments in arrangements so intricate that responsibility is difficult to assign though power is readily exercised.

They have effected a union of commercial and administrative Power whereby decisions affecting millions are made by Persons whom no Citizen has meaningfully elected, and no Community can readily remove.

They have concealed from the People the true costs of their conveniences, removing labor, waste, energy, and suffering alike from ordinary sight, that consumption and the concentration of Profits might proceed without reflection.

They have presumed to rank Speech, order Knowledge, elevate Opinions, suppress Inquiry, and determine which Facts shall readily appear before the People and which shall remain obscure.

They have substituted Engagement for judgment, Metrics for wisdom, Optimization for the common good, and Convenience for liberty.

They have persuaded Men and Women to seek fulfillment through Stimulation rather than contemplation, Consumption rather than cultivation, Possession rather than stewardship, and Novelty rather than belonging.

They have encouraged us to surrender Self-Government in exchange for comfort, Independence in exchange for convenience, and Privacy in exchange for entertainment.

They have diminished local institutions whilst extending their dominion into every household, school, workplace, pocket, and waking hour.

They have transformed Citizens into Users, Neighbors into Networks, Traditions into Content, Attention into Revenue, and Human Character into Behavioral Data.

They have reduced public life to spectacle and private life to data.

They have persuaded free Peoples to mistake visibility for influence, expression for power, and consumption for citizenship.

They have accustomed the People to receive decisions rather than participate in making them.

They have transferred the work of common life from neighbors, congregations, voluntary associations, and civic institutions unto distant Authorities.

They have fostered the illusion that social order may be engineered from above without the labor of communication, trust, reciprocity, shared responsibility, and common purpose from below.

Nor are these Offenses confined to Devices and Platforms alone. Artificial Intelligences, lately introduced among us, promise to compose, summarize, generate, recommend, predict, and decide. Though useful in many particulars, they present temptations no less significant than those which preceded them.

They stand ready to remember what we once remembered.

They stand ready to write what we once wrote.

They stand ready to discover what we once discovered.

They stand ready to judge what we once judged.

They stand ready to persuade before we have deliberated, to recommend before we have inquired, and to conclude before we have understood.

They stand ready to answer Questions before Wisdom hath had an opportunity to develop them.

They encourage many to mistake generated answers for Understanding, fluent Language for Wisdom, and borrowed Intelligence for cultivated Judgment.

They enable Men and Women to borrow the appearance of Learning without the labor of study, the appearance of Eloquence without the discipline of writing, and the appearance of Wisdom without undergoing the experience by which Wisdom is acquired.

They tempt the Student to forsake study, the Writer to forsake composition, the Teacher to forsake instruction, the Manager to forsake judgment, the Statesman to forsake deliberation, and the Citizen to forsake reflection.

They encourage institutions to substitute efficiency for judgment, scale for responsibility, and prediction for deliberation.

They risk creating a society in which the People are analyzed rather than consulted, predicted rather than persuaded, managed rather than represented.

They threaten to leave Men and Women not as Authors of their destinies but as subjects of models trained upon the traces of their former selves.

They promise liberation from effort whilst quietly eroding the faculties that make liberty possible.

At every stage of these Oppressions We have petitioned for Redress in the most humble terms: by disabling alerts, by imposing screen-time limits, by purchasing paper notebooks, by undertaking digital sabbaths, by rediscovering neighborhood associations, and even, in extraordinary cases, by leaving telephones in other rooms. Our repeated Petitions have been answered only by new features.

We, therefore, the Users of Analog Inclination and Friends of Human Agency, appealing to Common Sense for the rectitude of our intentions, do, in the Name and by Authority of all persons who have ever closed a laptop and felt immediate relief, solemnly publish and declare:

That Human Beings are not Data.

That Citizens are not Users.

That Communities are not Markets.

That Attention is not a natural resource to be extracted.

That Self-Government is not a service to be consumed, but a responsibility to be practiced.

That the purpose of Technology is to serve mankind and not to govern it.

We further affirm that a free People are not spectators of their common life but Authors of it.

That self-government is not merely a constitutional arrangement but a learned practice.

That Liberty survives not through its Declaration alone, but through its daily exercise.

That the arts of listening, deliberating, persuading, cooperating, compromising, and holding one another accountable cannot be delegated to Experts, Platforms, Corporations, Bureaucracies, or Machines.

That no Algorithm can substitute for Citizenship.

That the Habits of Liberty are learned first among Families, Neighborhoods, Congregations, Associations, and other small Communities before they may safely be entrusted to larger Institutions.

That no Artificial Intelligence can relieve Human Beings of the responsibility of governing themselves.

And that these Persons are, and of Right ought to be, Free and Independent from the perpetual demands of Handheld Devices; that they are Absolved from all allegiance to notification streams, social feeds, engagement metrics, behavioral modification engines, algorithmic nudges, and systems of continuous observation; and that as Free and Independent Persons they have full Power to Read books uninterrupted, Converse without glancing downward, Walk without earbuds, Dine without photography, Become bored without panic, Govern themselves in Community, and perform all other Acts and Things which autonomous Human beings may of right do.

We further declare ourselves free from every System, whether commercial, bureaucratic, algorithmic, or artificial, which seeks to reduce independent Persons to predictable subjects of observation, manipulation, optimization, and control.

We affirm that Attention shall remain our own.

That Judgment shall not be delegated without necessity.

That Friendship shall not be mediated without purpose.

That Responsibility shall not be surrendered to Machines.

That Self-Government shall not be exchanged for convenience.

That Technology shall remain our Servant, and never become our Sovereign.

That Prosperity shall be measured not only by what we consume, but by what we cultivate — in ourselves, in our Communities, and in the Earth entrusted to our care.

And that the Future shall be shaped by free Citizens acting together in mutual accountability, rather than merely predicted for them by Algorithms.

And for the support of this Declaration, with a firm reliance on one another’s ability to remain offline for at least an afternoon, we mutually pledge to each other our Attention, our Presence, our Agency, our Common Purpose, and our remaining Days.

Signed:

The Ghost of Henry David Thoreau, Present but Unreachable
Jacques Ellul, Witness Against the Dominion of Technique
Lewis Mumford, Defender of Human Scale
E. F. Schumacher, Advocate for Technology as if People Mattered
Ivan Illich, Patron of Convivial Tools
James C. Scott, Defender of Local Knowledge
Wendell Berry, Advocate for Neighborliness and Place
Jane Jacobs, Champion of Living Neighborhoods
Elinor Ostrom, Defender of Self-Governing Communities
Alexis de Tocqueville, Champion of Local Self-Government
Neil Postman, Defender of Civic Communication
Jaron Lanier, Opponent of Behavioral Modification Empires
Nicholas Carr, Defender of Deep Reading
Sherry Turkle, Defender of Human Presence
Jonathan Haidt, Advocate for Childhood Unplugged
Jean Twenge, Observer of the Great Rewiring
Cal Newport, Advocate for Deliberate Attention
And Numerous Others, Temporarily Out of Coverage Area

Neither Monopolies of Commerce, nor of Information, nor of Intelligence.

Done at a Quiet Table, on a Day Fairly Free from Distraction, in the Year of Our Attention Two Thousand and Twenty-Six.

By Thomas J.

—a Doubting Thomas

Author’s Note

This essay was inspired by Emily Sneff’s Handheld Declaration of Independence, whose ingenious revival of the Declaration as a handheld broadside suggested the possibility of replying in kind. It owes an obvious debt in its title and form to Thomas Jefferson and, in its pamphleteering spirit, to Thomas Paine. The named “signatories” are offered as an imaginative tribute to later thinkers whose ideas have informed my own reflections on technology, liberty, community, stewardship, and human flourishing.

Cross-posted from “we build our society” Facebook group: https://www.facebook.com/groups/webuildoursociety/426292260807996/?notif_t=group_comment#!/groups/webuildoursociety/permalink/426598337444055/

Terry, 2007-09 flow from various government interventions, not limited to those I just outlined, that served the purpose of blowing a bubble and freeing those playing with money from personal responsibility. This meant that smart men focussed on how they could game the system for their own profit. It happened continually and is still underway, though 1994 in Boca may be a good example.

Doug, [Jekyll Island 1913] was just the creation of the Fed (and just part of my item(3) above); the roots go much deeper to other state interventions I noted. The pre-Fed booms/panics also flowed from the state-level creation of banks as corporations and monopolies, and interventions to save banks that essentially broke promises to depositors by creating un-backed paper money. See Rothbard’s History of Money and Banking in the United States, http://mises.org/books/historyofmoney.pdf

[from a comment at the “we build our society” Facebook group]

[A]s a factual matter, the greatest Industrial Revolution pollution occurred AFTER governments started to create #LimitedLiability corporations whose effect (and aim) was to protect INVESTORS from the downside risks of doing sh*t that hurt OTHER PEOPLE.

Even today, most of our largest social problems flow from risk socialization and lack of accountability, proximately resulting from wonderful LAWS that serve the powerful, while pretending to “protect” the poor and dumped upon.

Fukushima happened because NO ONE had any personal skin in the game. What happened was no “surprise” or “Act of God”, but an expected result where NO ONE was f*cking responsible for the downsides of poor decisions that benefitted themselves or their organizations, favored corporations with monopolies, whose shareholders and lenders are protected from liability, the banks that are protected by government, the executives and regulators who often retire to the regulated company, the mega-construction firms who built the reactors, the legislators who imposed taxes on all users to bribe the local communities into accepting them ….

Where no one is accountable, bad sh*t is no surprise, but more LIKELY to occur. The same story can be written of the BP/Gulf of Mexico disaster, the ongoing oil sands disaster, coal/oil pollution, the god-damned War Machine/Prison/Industry/Drug War complex, and the “unexpected” financial crisis resulting from monetary gaming by the Fed and a gazillion regs that left depositors and shareholders powerless in the face of looting by bankster elite-wolves.

The answer is NOT “more govt!” or “more regulation!”, but SMARTER regulation that RESTORES RESPONSIBILITY and stops the lie of govt “protecting” people. Keep regulating the old/big cos, but LET THE SMALL and ACCOUNTABLE BUSINESSES FREE. Firms run by managers who are members of the communities in which they operate, and whose owners have no government-granted #LimitedLiability be kept in check by their communities and the risk of losing their personal assets, and will, via the process of #CreativeDestruction, supplant the corrupt dinosaurs.

[It looks like I’m having formatting problems; sorry, readers!]

I left the following comment on Kevin Dowd’s excellent April 9 Mises Daily piece, “The Current Financial Crisis – and After”, a transcript of a talk he apparently made at the Paris Freedom Fest on September 13, 2009 (emphasis added):

TokyoTom April 22, 2010 at 8:27 am

Kevin, many thanks for this lucid, spot-on and frightening piece.

No one else has mentioned it, so allow me to focus on a piece of your essay that I think has very wide implications that our leading lights at LvMI have been doing their best to ignore: the moral hazard and risk-shifting generation that is INHERENT in the state grant of LIMITED LIABILITY to corporate shareholders, and that has helped to encourage irresponsible behavior and increasing (and ultimately unsuccessful) regulation in the banking sector. It has also fuelled the cycles of corporate regulation, rent-seeking and political corruption.

I couldn’t agree more strongly with what you said here:

“the financial-services industry needs serious reform. Hard to believe as it might be, there was once a time when the industry was conservative and respected, when it focused on providing straightforward financial “products” to its customers and did so well. We have got to get back to that. No more financial hydrogen bombs blowing up the financial system.

“The key to this is corporate-governance reform. I am talking, not about tinkering with the number of nonexecutive directors or a new Sarbanes-Oxley, but radical reform to make the banks accountable and to rein in the moral hazards that have run rampant. And the key to good corporate governance is to remove limited liability: we should abolish the limited-liability statutes and give the bankers the strongest possible incentives to look after our money properly.”

I believe that, as argued by James Glassman and William Nolan in a Wall Street Journal op-ed last February that referred to von Hayek, unless and until owners and executives have “more skin in the game” – like the conservatively managed private partnership Brown Brothers Harriman, we will continue to ride a tiger of selfish risk-shifting, moral hazard, and ever more disruptive government regulation.

I have argued in a series of posts, starting with my review of Huebert and Block’s criticisms of Long, the state grant of limited liability to shareholders (in particular the grant vis-a-vis those injured by corporate acts and involuntary creditors, which is a pure grant from the state and cannot be contracted for) has led to a number of perverse results, which can be fairly clearly seen in the financial crisis.

I hope your post will contribute to a much more serious examination by Austrians of the role played by the state grant of limited liability to corporate shareholders in facilitating flawed and irresponsible risk-taking by executives and traders, as well as in perversely fuelling a vicious cycle of rent-seeking and further counterproductive regulation, both within and outside the financial sector.

[But I’m not holding my breath.]

Sincerely,

TT

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.

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 humans.  Thomas 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.

… 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.

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.

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.

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:

February 4, 2010, 11:45 pm