Category Archives: Constitution

Corporations and the First Amendment

We live in an era when everything–every case decided by the Courts, every law passed by Congress or a state legislature, every encounter between police and citizens–generates frightening headlines, hysterical tweets, and multiple emails from activist organizations exhorting recipients to take action (usually involving signing a petition and sending money).

So it’s easy to become jaded, to attribute the decibel level to partisanship, or a lack of perspective or analysis. I know I increasingly find myself thinking “just chill out. This isn’t the end of the world. Get a grip.”

Some things, however, prove to be every bit as worrisome as the scolds and screamers predicted. A grim assessment from a recent Harvard study suggests that the consequences of Citizens United and the line of cases leading up to it have been even more damaging than we were warned at the time.

Some of the study’s key findings include

While the First Amendment was intended to protect individual freedom of religion, speech and assembly, as well as a free press, corporations have begun to displace individuals as its direct beneficiaries. This “shift from individual to business First Amendment cases is recent but accelerating.”

Over time the high court has shown an increasing willingness to rule in favor of corporate interests, as a result “reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”…

The ability for corporations to obtain relief from the courts gives them incentive to “place bets not on new technologies or marketing strategies, but on legal and political ‘innovation’” to protect markets they have and exclude new entrants. This also has the effect of causing regulatory agencies to reduce their efforts, because enforcing existing laws becomes increasingly difficult….

American public discourse tends to be very bipolar and “zero sum.” Policies are either right or wrong, good or bad. A right accorded to X must mean diminished rights for Y.

In the real world, however, the goal of policy is more often than not to achieve an appropriate balance between or among competing interests, all of whom are entitled to have their rights respected. Most Americans would agree that businesses have the right to participate in the marketplace of ideas, and that the law should respect the fiction of corporate “personhood” in the contexts for which that personhood was originally created.

It is when Court decisions and legislative actions create troubling imbalances of power, we risk substantial damage to our social ecosystem. Cases like Citizens United and Hobby Lobby have upset that balance, empowering corporations while disempowering individual citizens.

“These findings present a challenge to the view, articulated by the majority and concurrences in Citizens United and Hobby Lobby, that corporations and other business entities should be understood ‘simply’ as aggregations or associations of individuals, and so should not be distinguished from them for purposes of First Amendment analysis,” the author writes in his conclusion, continuing: “The corporate takeover of the First Amendment represents a pure redistribution of power over law with no efficiency gain — ‘rent seeking’ in economic jargon. That power is taken from ordinary individuals with identities and interests as voters, owners and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money. This is as radical a break from Anglo-American business and legal traditions as one could find in U.S. history.”

Sometimes, the decibels are appropriate.

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I Don’t Think That Word Means What You Think It Means….

Rand Paul has assumed the mantle of libertarianism from his father Ron, and in all fairness, espouses some positions that are consistent with libertarian philosophy. But he’s anything but a genuine libertarian.

Peacock Panache recently reported on a Paul presentation at a private prayer breakfast sponsored by Pat Robertson’s Christian Broadcasting Network:

Paul told those in attendance at the breakfast he supports an intertwining of religion in government. “The First Amendment says keep government out of religion,” he said. “It doesn’t say keep religion out of government.”

Tell that to any Constitutional scholar who has done even a little research into the workings of the Establishment Clause and see how it goes over.

Continuing his pseudo-sermon Paul continued, “In fact, the moral crisis we have in our country, there is a role for us trying to figure out things like marriage, there’s also a moral crisis that allows people to think that there would be some sort of other marriage.” He continued, “We’re the most disconnected city on the planet from the people. So don’t have a lot of faith in what’s going on up here.”

Paul has the solution though. “We need a revival in the country,” Paul told an attentive audience that agreed with his every word. “We need another Great Awakening with tent revivals of thousands of people saying reform or see what’s going to happen if we don’t reform.”

There are two ways to interpret this nod to religious hegemony. It may be that Paul really has no idea what authentic libertarianism is, or it may be that he is intellectually dishonest and willing to pander to the prejudices of his audience. (The two interpretations, of course, aren’t mutually exclusive.) Either way, he’s disqualified from holding a government position. (Not that disqualification matters much these days–if we held lawmakers to an intellectual honesty standard, most of Congress would be gone.)

Paul also opposes reproductive rights and  same-sex marriage, for example–positions at odds with libertarian philosophy but virtual litmus tests for the GOP’s Evangelical base.

Just for the record, Rand, the libertarian principle that emerged from the Enlightenment (and upon which this country was largely founded) celebrated individual autonomy: the right of each individual to establish and pursue his own life goals, free of interference by government or popular majorities, unless and until that individual harms the person or property of a non-consenting other–and so long as he is willing to respect the equal right of others to do the same.

Now, I realize we can all debate what constitutes harm, but when you aren’t even willing to respect the right of other people to live in accordance with beliefs contrary to yours, you’re an authoritarian, not a libertarian.

Google it.

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Asking the Wrong Question

Yesterday, I posted about Roy Moore and Alabama’s resistance to same-sex marriage, and a commenter took the federal courts to task, asserting that they’d exceeded their authority by invalidating “the will of the people.”

The evidence of over-reach? Nowhere does the Constitution talk about same-sex marriage.

This is an argument that makes my head explode, because it betrays one of the most fundamental misunderstandings of our legal system.

Of course there’s nothing in the Constitution about same-sex marriage. There’s nothing in it about any kind of marriage. Or about the right to travel, or practice a profession, or numerous other rights it protects. That’s because the Constitution is not the source of our rights.

The Founders were persuaded by Enlightenment philosophers like Hobbes and Locke that humans are born with “natural rights.” We have those rights by virtue of being human (or, if you are religious, because we were “endowed” with them by a creator). The job of government, according to Hobbes, was to protect those natural rights and our individual liberty; Locke agreed, writing that government needed to be limited so that state power would not be used to infringe our natural rights and liberties.

The Bill of Rights doesn’t grant rights; it limits government. Even when that government is expressing “the will of the people”–or as the Founder’s might have put it, the “passions of the majority.”

If someone wants to argue that there is no “natural right” to choose your own marriage partner–that the right to live your life in accordance with your own conception of morality and with fidelity to your deepest identity is not a human right–I’ll disagree strongly, but that would be the appropriate argument.

Triumphant declarations that you read the text of the Constitution and didn’t find a “right”  to same-sex marriage simply tells the world that you are profoundly ignorant of the purpose of our Constitution and the theory of government upon which it was based.

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Alabama: Why Judges Shouldn’t Be Elected

He’s baaack!

Roy Moore, the infamous “Ten Commandments” theocrat, is serving a second stint as Alabama’s chief justice. Moore was first elected to that position in 2000, but was removed after refusing to move a Ten Commandments monument he had installed at the entrance to the courthouse. Carved into a five ton boulder. In a July 2003 ruling, the appeals court compared Moore’s actions to the

“position taken by those southern governors who attempted to defy federal court orders during an earlier era,” citing the actions of former governors Ross Barnett of Mississippi and George C. Wallace of Alabama in trying to block campus integration and protest marches during the height of the civil rights movement.

“Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case,” the appeals court wrote.

In November 2003, the state ethics panel unanimously voted to remove Moore from the bench. He was reelected in 2012, narrowly defeating a candidate who didn’t join the race until August after Democrats disqualified their original candidate. (What was that old saying?–you can’t beat something with nothing.) When it became apparent that he’d won, he told supporters

“Go home with the knowledge that we are going to stand for the acknowledgment of God.”

Now, Moore has told the state’s probate judges–who evidently issue marriage licenses in Alabama– to ignore a federal judge’s ruling that same-sex marriages could proceed, and a majority of them have been complying.

Interestingly, Alabama does not require probate judges to have any sort of legal education. It’s also one of thirteen states where probate judges are elected in partisan primaries and general elections.

The U.S. Constitution made federal judges independent precisely in order to avoid this sort of assault on the rule of law. Congress and the Executive Branch are supposed to answer to the voters; courts of law are supposed to answer to the Constitution.

In best-case scenarios, judicial elections give rise to the appearance of impropriety– did campaign contributions influence the administration of justice? In the worst-case scenarios, judicial elections give you a Roy Moore.

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Quotes From The Founders of Our “Christian Nation”

One of the many things Thomas Jefferson was known for was creating his own version of the bible: he famously excised all of the metaphysical portions, leaving only the moral teachings. (This may be why, when he was running for President, opponents warned that  he would order the burning of all bibles if he were to be elected.) I thought about that recently, when I came across a collection of quotations about religion and religious liberty from Jefferson and America’s other founding fathers. I was familiar with most, but not all of them. Of those I hadn’t previously seen, I particularly liked this one from Jefferson, taken from a letter he wrote to one Peter Carr in 1787:

“Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear.”

Ben Franklin was more blunt. In Poor Richard’s Almanac, in 1758, he wrote

“The way to see by faith is to shut the eye of reason.”

Although not technically a Founder, Thomas Paine was an enormously influential figure in Revolutionary America, and a reliable critic of religion and religious establishments; in The Rights of Man, he wrote

“Persecution is not an original feature in any religion; but it is always the strongly marked feature of all religions established by law. Take away the law-establishment, and every religion re-assumes its original benignity.”

In 1776, in The American Crisis, he made his disdain for “faith-based” reasoning even clearer, writing

“To argue with a man who has renounced the use of reason is like administering medicine to the dead.”

(Explains the problem with several current members of Congress, the General Assembly and most of Texas….)

Madison frequently weighed in on the side of reason and the need to separate church from state. In his often-quoted letter to William Bradford, he wrote

“Christian establishments tend to great ignorance and corruption, all of which facilitate the execution of mischievous projects.”

There are many similar quotes from the architects of our Constitution, easily found in textbooks, history books or a cursory visit to Doctor Google. This nation’s founders tended to agree with Gallileo that “man is not obliged to believe that the same God who has endowed us with senses, reason and intellect intends us to forgo their use.” However avid our current culture warriors may be about rewriting American history, it’s impossible to ignore the continued relevance of these sentiments. In fact, in view of the current push for explicit religious “liberty” to discriminate against LGBT folks, another Jefferson quote (from A Bill for Establishing Religious Freedom) seems especially apt:

“Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.”

You tell ’em, Tom!

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