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View Diary: Should we amend the US Constitution? Justice Stevens thinks so, incl. 2nd Amendment (new book) (321 comments)

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  •  I'd Bet the Other 5 Proposals are More Important (58+ / 0-)

    than the one about the 2nd.

    My pet peeve relating to the Court's money=speech and Citizen United decisions turns on the peculiar wording of the 1st Amendment which would be drastically improved with 2 words.

    For example, suppose the 1st Amendment were phrased like a key section of the 2nd ["the right OF THE PEOPLE to keep and bear"] and others in the Bill of Rights.

    Suppose the 1st Amendment said "Congress shall make no law respecting the establishment of religion, nor infringing on THE PEOPLE's free exercise thereof; or of the freedom of THE PEOPLE's speech...."

    The Citizens United issue might well be totally or nearly gone by removing the grammatical sense that it is the exercise of religion and the speech itself that possess the freedom, and not the human people.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sun Feb 23, 2014 at 06:39:49 AM PST

    •  I can't find any links addressing his other 5 (11+ / 0-)

      proposed amendments.  All anyone seems to be noticing is his (common sense) proposed revision to the 2d Amendment.

      Some men see things as they are and ask why. I dream of things that never were and ask why not?

      by RFK Lives on Sun Feb 23, 2014 at 07:30:22 AM PST

      [ Parent ]

    •  "Corporations are people, too, my friend." (9+ / 0-)

      I don't think that inserting "the people" would stop Citizens United type cases. The CU case had to do with an anti-Hillary Clinton video released too close to an election under a state law. The extension of "free speech" rights to corporations results from the fact  that the individuals who showed the video were joined together in a corporate structure. And, per previous SCOTUS decisions, money = speech.
         A better change would be to impose constitutional limits on campaign spending and treat corporations or similar organizations as exactly the same as individuals - IOW, if there is a $5000 limit on individual contributions, a corporation also has a $5000 limit.

      •  Right now the limit on campaign contributions to (0+ / 0-)

        a Federal candidate by a corporation is $0.  This has been the case for over 100 years.  Are you proposing that they have this increased to $5000?

        The most important way to protect the environment is not to have more than one child.

        by nextstep on Sun Feb 23, 2014 at 02:31:53 PM PST

        [ Parent ]

      •  Amending the First Amendment (2+ / 0-)
        Recommended by:
        Old Sailor, Sharon Wraight

        would do no good as long as we had Supreme Court Justices who don't care what the Constitution says, because they know better what the Founders meant because God or money or Real Americans or something.

        The clearest case of this in US history is the claim by the Confederacy that the Confederate Constitution was the actual Original Intent of the (slave-owning) Founders. Whenever you hear the phrase Original Intent, think of Jefferson Davis.

        Also, when you hear about the line-item veto, which was in the Confederate Constitution, and about keeping the Federal government out of infrastructure spending (ditto), and especially about this being a Christian country (ditto ditto).

        Back off, man. I'm a logician.—GOPBusters™

        by Mokurai on Sun Feb 23, 2014 at 04:12:40 PM PST

        [ Parent ]

    •  This is a horrible idea (13+ / 0-)
      Suppose the 1st Amendment said "Congress shall make no law respecting the establishment of religion, nor infringing on THE PEOPLE's free exercise thereof; or of the freedom of THE PEOPLE's speech...."
      It would remove first amendment protection from virtually everything except someone standing in a public area talking.  Books, movies, newspapers, magazines, tv, ads -- virtually none of those are speech by "people."  They are all paid for, and disseminated by, corporate-type entities (corporations, LLC's, LP's, etc.) in exactly the same way that "Hilary the Movie" was paid for and disseminated by a corporation.  

      Your amendment, if it limits the First Amendment protection to speech that is not paid for, or disseminated by, corporate entities, would allow government control over the content of all those things.  

      •  You forget that freedom of the press (11+ / 0-)

        is also protected.

        But I would prefer a ruling or law clarifying that money is property, not an action such as speaking.

      •  yet most of those things (0+ / 0-)

        (which is to say, all of them that had been invented at the time) were adequately protected prior to the misapplication of 14th amendment personhood to corporations.

        Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

        by happymisanthropy on Sun Feb 23, 2014 at 02:11:37 PM PST

        [ Parent ]

        •  You fell for the myth. (0+ / 0-)

          The CU decision did not hold that corporations are persons.  It specifically held that corporations were not "natural persons" but were associations of persons, which they are.

          You should read the decision.  It recognized that the First Amendment is a limit on government, and has long applied to corporations even though they are not "natural persons":  

          The Court has recognized that First Amendment protection extends to corporations. Bellotti, supra , at 778, n. 14 (citing Linmark Associates, Inc. v. Willingboro , 431 U. S. 85 (1977) ; Time, Inc. v. Firestone , 424 U. S. 448 (1976) ; Doran v. Salem Inn, Inc. , 422 U. S. 922 (1975) ; Southeastern Promotions, Ltd. v. Conrad , 420 U. S. 546 (1975) ; Cox Broadcasting Corp. v. Cohn , 420 U. S. 469 (1975) ; Miami Herald Publishing Co. v. Tornillo , 418 U. S. 241 (1974) ; New York Times Co. v. United States , 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill , 385 U. S. 374 (1967) ; New York Times Co. v. Sullivan, 376 U. S. 254 ; Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y. , 360 U. S. 684 (1959) ; Joseph Burstyn, Inc. v. Wilson , 343 U. S. 495 (1952) ); see, e.g., Turner Broadcasting System, Inc. v. FCC , 520 U. S. 180 (1997) ; Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U. S. 727 (1996) ; Turner , 512 U. S. 622 ; Simon & Schuster , 502 U. S. 105 ; Sable Communications of Cal., Inc. v. FCC , 492 U. S. 115 (1989) ; Florida Star v. B. J. F. , 491 U. S. 524 (1989) ; Philadelphia Newspapers, Inc. v. Hepps , 475 U. S. 767 (1986) ; Landmark Communications, Inc. v. Virginia , 435 U. S. 829 (1978) ; Young v. American Mini Theatres, Inc. , 427 U. S. 50 (1976) ; Gertz v. Robert Welch, Inc. , 418 U. S. 323 (1974) ; Greenbelt Cooperative Publishing Assn., Inc. v. Bresler , 398 U. S. 6 (1970) .

               This protection has been extended by explicit holdings to the context of political speech. See, e.g., Button , 371 U. S., at 428–429; Grosjean v. American Press Co. , 297 U. S. 233, 244 (1936) . Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” Bellotti, supra, at 784; see Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) (plurality opinion) (“The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bellotti, 435 U. S., at 783)).      The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.” Id., at 776; see id. , at 780, n. 16. Cf. id. , at 828 (Rehnquist, J., dissenting).

          •  I wasn't talking about CU (2+ / 0-)
            Recommended by:
            Sharon Wraight, Tonedevil

            I was talking about Santa Clara vs. Southern Pacific Railroad.

            Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

            by happymisanthropy on Sun Feb 23, 2014 at 03:06:42 PM PST

            [ Parent ]

            •  Where did that decision say (0+ / 0-)

              corporations are people????

              The decision is here.  It's not anywhere in that decision.  

              If you are talking about the first decision to hold that corporations enjoy some constitutional protections, that's probably Dartmouth College v. Woodward in 1819.  And there's nothing radical about that.  No legal association of persons could exist if it did not have some constitutional protection.  For example, how practical would it be for the government to be able to search and seize property of any club, union, corporation, LLC, association, etc. any time it wanted?  Of course some constitutional protections extend to associations of people like corporations.  

              •  You know damn well (1+ / 0-)
                Recommended by:
                Tonedevil

                what Santa Clara has to do with the history of corporate personhoood.  Fuck you for playing stupid.

                Wikipedia:

                In Santa Clara County v. Southern Pacific Railroad - 118 U.S. 394 (1886), the reporter noted in the headnote to the opinion that the Chief Justice began oral argument by stating, "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."[1] While the headnote is not part of the Court's opinion and thus not precedent, two years later, in Pembina Consolidated Silver Mining Co. v. Pennsylvania - 125 U.S. 181 (1888), the Court clearly affirmed the doctrine...

                Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

                by happymisanthropy on Sun Feb 23, 2014 at 03:55:44 PM PST

                [ Parent ]

                •  Sigh. My point is that (0+ / 0-)

                  the Supreme Court has never declared corporations to be "persons" in the sense that you and I are a person.  Whether some Reporter put that in a paper or not  -- that did not matter AT ALL to the Supreme Court's subsequent decisions, including CU.  There is a long line of cases -- dating back to 1819 -- that corporations were entitled to some constitutional protection (in the 1819 case, Article I, section 10, clause 1), and a long line of cases specifically holding that corporations were entitled to First Amendment protection.  This is despite the fact that corporations are not "natural persons," not BECAUSE they are "natural persons."

                  So, I'll be clear.  

                  If by "corporate personhood," you mean that the Supreme Court has declared that corporations are the same as "natural persons," that notion is a myth.  

                  If by "corporate personhood," you mean that corporations,, despite NOT being "natural persons," are entitled to some of the same constitutional and legal protections as natural persons, then that's a very uncontroversial notion that dates back to at least 1819.  

                  •  Stop playing stupid. (2+ / 0-)
                    Recommended by:
                    Old Sailor, Tonedevil

                    It's really fucking pissing me off.  The question is not whether the supreme court said that corporations have two arms, two legs, and various genitals.  Pretending that that is the issue is just trolling.

                    The issue is the fucking 14th amendment.  If corporations are not people under the 14th, then they can't have selectively incorporated protections against state laws derived from the bill of rights.

                    And, conversely, if they do have rights incorporated under the 14th amendment, then the supreme court has made them equal to human persons, regardless of the hand-waving involved in getting there.

                    Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

                    by happymisanthropy on Sun Feb 23, 2014 at 10:55:12 PM PST

                    [ Parent ]

                    •  When you say "corporations are people under the (1+ / 0-)
                      Recommended by:
                      VClib

                      14th Amendment," all that means is that corporations -- which, technically, are made up of people (shareholders) who pool their resources (money) to operate a business) -- have 14th Amendment protection, such as due process rights.

                      Two points:  

                      1.  Saying "corporations are 'persons' under a specific law" is not the same as saying "corporations are persons."  Many laws use the word "person" and then define it to include groups or associations of persons, like clubs, businesses, unions, etc.  It's a shorthand way of saying that groups or associations of people are covered by the law as well. It's certainly NOT equated a corporation to a person for any purpose OTHER THAN the effect of that specific law.

                      2.  Do you have a problem with corporations having some rights under the constitution?  If they didn't have due process rights, then a conservative president like Bush could just order seizure of the assets of an entity they didn't like, such as Planned Parenthood and shut them down completely.  Don't you think that an entity ought to be protected by the Fifth Amendment's guarantee against "seizure" or by the 14th Amendment's guarantee of due process?  

                      •  Oooh scary bogeyman. (2+ / 0-)
                        Recommended by:
                        Tonedevil, Old Sailor

                        They were adequately protected before there was a 14th amendment.  They were adequately protected before the 14th was misapplied on their behalf.  They don't need to steal the rights of human beings, to the great detriment of the human beings thus deprived, to get there.

                        Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

                        by happymisanthropy on Mon Feb 24, 2014 at 09:06:54 AM PST

                        [ Parent ]

              •  Of course they can. (1+ / 0-)
                Recommended by:
                Sharon Wraight

                Why do you think it's legal for the NSA to collect all of the phone meta data.

                We were not ahead of our time, we led the way to our time.

                by i understand on Sun Feb 23, 2014 at 04:13:35 PM PST

                [ Parent ]

              •  Yes, it wasn't in the decision (3+ / 0-)

                it was in a headnote.

                The court reporter, former president of the Newburgh and New York Railway Company J.C. Bancroft Davis, wrote the following as part of the headnote for the case:
                   "One of the points made and discussed at length in the brief of counsel for defendants in error was that 'corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.' Before argument, Mr. Chief Justice Waite said: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."
                In other words, the headnote claimed that all of the justices believed that corporations enjoyed rights under the Fourteenth Amendment, adopted in 1868. In fact, the headnote was only a reporting by the Court Reporter of the Chief Justice's personal interpretation of the Justices' opinions. The issue of applicability of "Equal Protection to any persons" to the railroads was not addressed in the decision of the Court in the case.

                Back off, man. I'm a logician.—GOPBusters™

                by Mokurai on Sun Feb 23, 2014 at 04:18:19 PM PST

                [ Parent ]

                •  The fact that a reporter misstated the holding of (0+ / 0-)

                  that case really doesn't matter.  The Reporter was not declaring corporations to be "persons" in the sense that you and I are persons.  The point he was making was that corporations were entitled to some of the same constitutional protections as persons -- like due process.  Even if that concept was not part of that particular case, it is a non-controversial concept that dates back to at least 1819.

                  The Supreme Court has never declared that corporations are persons.  The Supreme Court has -- repeatedly -- said that corporations enjoy some of the same constitutional protections as persons.  And it has to be that way.  A business could never function if its assets could be seized by the government at any time without due process, for example.  And as I pointed out, if corporations were not entitled to First Amendment protection, then the government could ban books, movies, magazines, photographs, etc. that it didn't like.

          •  They're not "associations of persons" (3+ / 0-)

            They are legal entities created by the Government. They have no rights or even existence other then those conveyed to them by the governing law.

            A corporation is a separate legal entity that has been incorporated either directly through legislation or through a registration process established by law.

            We were not ahead of our time, we led the way to our time.

            by i understand on Sun Feb 23, 2014 at 04:11:49 PM PST

            [ Parent ]

          •  They're not "associations of persons." (5+ / 0-)

            At least not in the sense we think of people, i.e. natural persons.

            As you should know, a corporation is an entirely fictitious juridical entity.  It is not an "association of persons" at all.  There's no requirement that a corporation have more than one owner.  Indeed, there's no requirement that a corporation have an actual human being as its owner.  Many corporations are owned by other corporations, and many corporations have no employees.  They "exist" only on paper.

            What a corporation is, is a liability-limiting device.  It permits people to protect themselves from legal liabilities the fictitious entity may incur.  A shareholder has no liability for the corporation's acts beyond his investment.  He has no relationship to other shareholders save as a co-owner in a legal entity. Far from "associating" through a corporation, shareholders (the corporation's owners) disassociate from each other.  

            There are true associations of persons, like unions, fraternal organizations, and clubs.  But a corporation isn't one of them.

            "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

            by FogCityJohn on Sun Feb 23, 2014 at 06:28:29 PM PST

            [ Parent ]

    •  I don't think that fixes Citizen's United (3+ / 0-)
      Recommended by:
      Sharon Wraight, Smoh, Shockwave

      remember, the premise of that ludicrous ruling was that corporations are people too.

      KOS: "Mocking partisans focusing on elections? Even less reason to be on Daily Kos."

      by fcvaguy on Sun Feb 23, 2014 at 08:15:08 AM PST

      [ Parent ]

      •  The ruling went wrong eslewhere, too! (4+ / 0-)
        Recommended by:
        fcvaguy, Sharon Wraight, Smoh, Shockwave

        They also ruled that money is speech. This unleashed the torrent of unlimited, anonymous money spent on buying election results.

      •  fcva - that was NOT the ruling of Citizens United (4+ / 0-)

        In fact the majority made a very clear distinction between the rights of "human persons" and "groups of people" such as clubs, unions and corporations. The Court made no ruling on issues such as "corporate personhood" or the notion that "corporations are people too". The SCOTUS has never ruled that corporations have all the same rights as "human persons" in CU or any prior Supreme Court case, however it has somehow echoed through the Internet that they have on both.

        Regarding Romney's completely inaccurate remark that "corporations are people too", I would have expected more from someone who graduated cum laude from Harvard Law School, although he never did practice law.

        "let's talk about that"

        by VClib on Sun Feb 23, 2014 at 12:28:40 PM PST

        [ Parent ]

        •  asdf (0+ / 0-)
          The SCOTUS has never ruled that corporations have all the same rights as "human persons" in CU or any prior Supreme Court case, however it has somehow echoed through the Internet that they have on both.
          But they did say that corporations have equal 1st amendment protection, as well as standing to sue under the 14th amendment which explicitly applies only to persons.

          Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

          by happymisanthropy on Sun Feb 23, 2014 at 02:14:39 PM PST

          [ Parent ]

          •  The ruling was more narrow (1+ / 0-)
            Recommended by:
            Sharon Wraight

            and not related specifically to corporations. What the Court ruled is that certain First Amendment rights are not limited by who is speaking. So clubs, unions, and corporations "groups of people" have the same rights of political speech as people, as long as that speech isn't coordinated with campaigns. People have the right to make actual campaign contributions while corporations are prohibited from making campaign contributions to candidates for federal office by The Tillman Act of 1907.

            I don't have time to go and read again the CU majority opinion but as I recall the majority did not rely on the 14th or provide "groups of people" any new rights under the 14th. The ruling was based on the First Amendment and several precedents, primarily Buckley v Valeo.

            This is an interesting article from truthout that touches several of the issues you raised.

            http://www.truth-out.org/...

            "let's talk about that"

            by VClib on Sun Feb 23, 2014 at 05:45:38 PM PST

            [ Parent ]

    •  A corporation is just a group of people (0+ / 0-)

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Sun Feb 23, 2014 at 08:23:20 AM PST

      [ Parent ]

    •  Please provide an example of how this wording (0+ / 0-)

      change you propose would make a difference to any SCOTUS decision of your choosing.

      In the case of Citizens United, take the case of a Union engaged in political speech in ads or on the ground within 30 days of an election.

      The most important way to protect the environment is not to have more than one child.

      by nextstep on Sun Feb 23, 2014 at 02:28:56 PM PST

      [ Parent ]

    •  Dust off the Ordenance of 1792 or (0+ / 0-)

      Signed by no less than GW. That would link the gun rights and the militia directly.

      Make the USA like Switzerland, but cheaper, all militia members would supply their own weapon.

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