In a Boston Globe article from April 25th of this year entitled “Jim McGovern’s flawed war” print journalist Jeff Jacoby attacked Representative Jim McGovern for the amendment he is proposing in Congress. Congressman McGovern has introduced The People’s Rights Amendment, which is flawed in some ways, but Jacoby’s “journalism” is based upon ignorance of the stakes, a misunderstanding of history and is ultimately tantamount to scaremongering.
Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.
Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.
Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.
The primary flaw in this amendment language is the blind eye it turns toward the crux of the Citizens United v FEC decision that helped spawn the new movement against corporate Constitutional rights, i.e., the false equivalence between money and speech as set forth in the landmark case, Buckley v Valeo. The court found in that case that limitations on individuals or families spending for their own campaign did violate the First Amendment because, they reasoned, that money is a form of speech. This enables millionaires and billionaires to spend their way to purchase election success. However, Jacoby’s complaints do not address this shortcoming.
Jacoby claims in his piece that McGovern’s problem is not with the Constitution, as McGovern initially stated, but with the 2010 Citizens United decision that Jacoby claimed “restored the right of corporations to engage in political speech.” Actually the Court allowed corporations and unions the freedom to use the rights the Court had previously granted corporations to participate in elections in effect overturning The Tillman Act of 1907. He goes on to claim that the Bill of Rights “safeguards fundamental rights” when citizens “unite as corporations.” In this claim Jaboby conveys a deep ignorance of the history of corporate personhood.
The Constitution is flawed. About that, McGovern’s original statement, which he walked back, was correct. The flaw, as those of us in the Abolitionist movement understand, is located in Section 1 of the Fourteenth Amendment which does not specify “natural” when giving due process and equal protection under the law to “all persons.” Ever since 1889, corporations have been exploiting that loophole to attain rights from Supreme Court justices who were essentially playing God, at least according to Thomas Jefferson’s Declaration of Independence.
In the aftermath of the Wisconsin primary, when 70% of Republicans in West Ellis voted in favor of a Move to Amend promoted ballot initiative in opposition to corporate personhood, Jacoby had the gall to write that like “many on the left, McGovern has gone batty on the subject of ‘corporate personhood.‘ ” He goes on to claim that corporate personhood “is a perfectly commonplace, centuries old legal construct that makes it possible for individuals organized as a group to carry out their affairs effectively.” Jocoby does not have a clue what corporate personhood is. He confuses the status of corporations as artificial persons with corporations having rights granted to them by Supreme Court judges.
Jacoby correctly frets that corporations, both for profit and not for profit, would lose rights under the People’s Rights Amendment, but he does not have a clue that they would retain the privilege of having many activities, privileges that legislatures could revoke by statute in the cases where corporations abused their privilege. Jacoby does not seem to be aware that the Constitution was written for “We the People,” even though by “People” the framers meant white, male property owners, i.e., elites of the era. He falsely claims that this amendment proposal would “overturn much of the freedom that Americans have always taken for granted” [emphasis added]. Again, he conveys complete ignorance about the 123 year old history of corporate personhood.
Perhaps Jacoby’s biggest deception, or misunderstanding to be fair, comes when he wrote, “it isn’t only Big Oil and Big Tobacco that could be censored with impunity…so, of course, could most newspapers, magazines, TV networks, and book publishers.” It’s difficult to understand how this “journalist” could turn two blind eyes toward section three of The People’s Rights Amendment, and therefore his claim is tantamount to scaremongering. However, his deceptions or profound ignorance does not end there.
He goes on to claim that “what is true of First Amendment rights would be true of all the others: Protection against unreasonable searches and seizures, due process under law, the right to trial by jury — corporations could be stripped of them all.” Not exactly. Overturning the doctrine corporate rights would not allow the state to seize the property of corporations for two reasons: 1) they are owned by stockholders who would retain their property rights and 2) closing the loophole in the Fourteenth Amendment, using whomever’s amendment language, would not overturn Dartmouth College v Woodward (1819). This case ruled that corporate charters are contracts between private parties and legislatures could not interfere with them, at least not without due compensation at market value.
Jacoby concludes that “Far from reinvigorating the dream of the Founding Fathers, the People’s Rights Amendment would transform it into a nightmare.” Apparently, Jacoby is unable to perceive the nightmare that America has become in a post-Citizens United legal environment. For the framers of the Constitution, people have rights, corporations have privileges and elected officials, judges and bureaucrats have powers. Because Supreme Court justices have been playing God and granting artificial persons for the last 123 years the rights that He endowed to human beings, corporations exploit these ill-gotten rights to shape laws to favor them with Unequal Protections. McGovern is to be commended for his contribution in the massive effort that will be required to amend the Constitution and abolish corporate personhood. Jacoby, meanwhile, should be condemned as a corporate shill engaged in hack journalism.
The following response to Jeff Jacoby was written by Abraham Entin. It is added here to provide another angle of attack for fear-mongers like Jacoby.
Response to Jacoby:
Mr. Jacoby’s attack on Rep. McGovern is exactly the kind of vitriolic, absurd and extreme attack that can be expected as the call for a constitutional amendment addressing corporate constitutional rights and money as speech gains momentum.
The argument begins with a fundamental misrepresentation of the Constitution and the rights enumerated therein. One of the underlying principles of our system of government is that individuals need and deserve protection(s) against groups. It is the “flip side” of the rigged individualism that is part of the American self image.
Mr. Jacoby magically extends these rights, principally enumerated in the First 10 Amendments to the Constitution, to entities not named within that document. These rights were given to individual human beings (“Men”, within the culture of that time). Corporations were not and are not mentioned in our constitution. That they have “rights” is a result of judicial activism on a grand and on-going scale. Corporations, from the beginning of our country, always had many restrictions placed upon them. They needed to be chartered, and the charters they received from the States were clearly restrictive in nature. Corporations were created to accomplish a public good (such as building a canal, etc) using private money, and received the benefit of limited liability and other named and restricted privileges in order to carry out this public good. In no way did they have any “rights” under this chartering arrangement.
Over time, as corporations became more powerful, they were able to use their economic might to extend their reach into many different areas. The most important of these was the takeover of the Judiciary branch of the government by individuals sympathetic to the aims of these entities. Most of the federal judiciary, and especially the Supreme Court, has consisted of attorneys with a background in representing the interests of corporations.
The idea that restricting the “rights” of corporations is an attack on the rights of human beings is not only preposterous, it is a lie designed to perpetuate the ability of corporate entities to control the political and cultural debate about who we are as a people, our values and the way we will organize and govern our society.
Corporations constantly work to restrict the ability of human beings to have our voices heard. That is why they so fully fund the electoral process, in which the candidate who spends the most money wins the election in more than 90% of the races on any level of government. They vehemently oppose labeling laws that would allow us to know what is in the food that we eat and the beverages we drink. They engage in SLAPP (Strategic lawsuit against public participation) suits to silence their critics, engage in blacklisting whistleblowers and do everything they can to insure that theirs is the principal, if not only voice in any public debate.
The real world result has been that corporations have their way with us. Our schools are there to train workers and consumers, our media carries the messages that corporations want us to hear, our foreign policies are designed to protect corporate assets, the corporate produced protocols of the World Trade Organization trump the laws of nations (including theUnited States) and on and on it goes. For Mr. Jacoby (or anyone else) to argue that an amendment designed to eliminate corporate constitutional rights is an attack on the rights of human beings would be a joke, if the situation were not already a tragedy. Such an amendment would be, in fact, the first step towards reclaiming those rights, and a necessary building block in the creation of a culture and society that serves the needs and highest aspirations of human beings. Creating an economy that exists to serve people and not the profits of artificial entities can only occur when corporations are brought back under the control of the People, rather than the People being under the control of the corporations.
Finally, Mr. Jacoby and others have and will put non-profit advocacy groups in the same category as for profit corporations in order to further confuse the issue before us. Non-profits already work under many restrictions (engaging in political speech can cost their non-profit status via the IRS for some non-profits, for example). We the people have the ability to grant whatever privileges we choose to non-profit groups. This proposed amendment has no “automatic” trigger that will undermine the ability of non-profits to carry out their mission. In fact, there is a long list of non-profit organizations such as the Sierra Club that have endorsed this amendment, recognizing that their voices are also silenced by the shrill sound of corporate sponsored communications that flood our media and public arena. The Sierra Club apparently does not need Mr. Jacoby to defend them, nor do the many other organizations that support this amendment.
Mr. Jacoby’s characterization of our government as the “political class” is very radical indeed. Certainly today, when corporations dominate and control the governmental (especially the Federal Government) it is easy to become cynical and disgusted by the behavior of elected officials. Apparently, Mr. Jacoby believes that giving corporations even more control over the levers of government by eliminating every restriction over their behavior will correct the very situation that this has created. The vast majority of the American people disagree with him. That is the impetus behind this Move to Amend, and it is very scary to those who support the status quo of government by the corporations and those who serve them.