Fundamental Change and Fundamental Hypocrisy – Part One.

Imagine if we were to tell you there is a move afoot to change the Constitution. Would that get your attention?

What if we were to tell you there is a move to attack your First and Fourteenth Amendment rights? Do we have your attention now?

What if we were to inform you there is a Constitutional Amendment proposing the end of free speech, free association and freedom of the press? Are you awake?

Representative James P. McGovern (D-Massachusetts) has proposed the “People’s Rights Amendment” to the Constitution which reads as follows:


`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. The words people, person, or citizen as used in this Constitution do 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, freedom of association and all such other rights of the people, which rights are inalienable.’.

This is a shot across the bow after the Supreme Court decided Citizens United v. Federal Election Commission declaring:

The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.

Citzens United was also the case that President Obama attacked in his State of the Union address in 2010 saying:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections.

After that statement, Justice Samuel Alito was seen frowning and mouthing the words “not true.”

Citizens United has been a rallying cry for Democrats and the left to try to pass legislation restricting the fundamental rights of people with regard to political speech. In fact, McGovern who introduced the proposed amendment is a Democrat and has 27 co-sponsors of the bill – 26 of which are Democrats.

Make no mistake about it. This proposed amendment is a fundamental attack on the freedoms and liberties guaranteed by the Constitution and the Bill of Rights.

Proponents of the Amendment want to limit the ability of a corporation to contribute to a campaign. They present the idea that “people have rights – not corporations.” On April 18, 2012, Amendment sponsor McGovern said just that:

My “People’s Rights Amendment” is simple and straightforward. It would make clear that all corporate entities – for-profit and non-profit alike – are not people with constitutional rights.

Historically, this is not true:

The Supreme Court and U.S. law have long held that Americans do not surrender the rights they enjoy individually when they act in association with one another. This has been a fundamental feature of U.S. law since the very beginning, and even before that, inasmuch as the notion that collective action does not deprive us of our rights goes back into the Common Law as well. U.S. court cases going back to the 18th century recognize that fact, as does federal statute: 1 U.S.C. §1 reads in part: “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

This follows the “logic” of some on the left who believe that a person engaged in some sort of legal activity magically loses their rights. For example, how many times have we heard under the guise of “separation of church and state” that a teacher or student may not espouse a religious viewpoint because they are in a “government building?”

So how would this amendment play out?

Professor Eugene Volokh explains:

So under section 1, all constitutional rights, including the First Amendment, are limited to “natural persons.” Under section 2, that doesn’t include corporations. And section 3 preserves the “people‘s rights of freedom of speech, freedom of the press, [and] free exercise of religion” (emphasis added), which — given section 2 — excludes the rights of newspapers (and similar organizations) organized as corporations. So if the People’s Rights Amendment were enacted, Congress would have an entirely free hand to censor what is published in newspapers organized as corporations, what is published by book publishers organized as corporations, what is created by movie studios that are organized as corporations, what is distributed by music companies that are organized as corporations, and so on.


So just as Congress could therefore ban the speech of nonmedia business corporations, it could ban publications by corporate-run newspapers and magazines — which I think includes nearly all such newspapers and magazines in the country (and for good reason, since organizing a major publications as a partnership or sole proprietorship would make it much harder for it to get investors and to operate). Nor does this proposal leave room for the possibility, in my view dubious, that the Free Press Clause would protect newspapers organized by corporations but not other corporations that want to use mass communications technology. Section 3 makes clear that the preservation of the “freedom of the press” applies only to “the people,” and section 2 expressly provides that corporations aren’t protected as “the people.”

Congress could also ban the speech and religious practice of most churches, which are generally organized as corporation. It could ban the speech of nonprofit organizations that are organized as corporations. (Congressman McGovern confirms this: “My ‘People’s Rights Amendment’ is simple and straightforward. It would make clear that all corporate entities — for-profit and non-profit alike — are not people with constitutional rights. It treats all corporations, including incorporated unions and non-profits, in the same way: as artificial creatures of the state that we the people govern, not the other way around.”) Congress could ban speech about elections and any other speech, whether about religion, politics, or anything else. It could also ban speech in viewpoint-based ways.

State legislatures and local governments could do the same. All of them could seize corporate property without providing compensation, and without providing due process. All corporate entities would be stripped of all constitutional rights.

The proposed amendment would play out in strange ways in the business world as well:

If Monsanto is not a “person” under the law, it cannot be regulated, taxed, sued, or fined, because for the purposes of the law it does not exist. Without the ability to treat enterprises as a single legal entity, there would be no redress for damages caused by a defective GM vehicle except to file claims against each individual owner of the 1.57 billion shares of GM stock outstanding.

But if GM and Monsanto can be sued, then they can defend themselves from suits. If they can be taxed on their property, then they can own property. If they have liabilities under contracts, then they have rights under contracts, too. If they have liabilities under the law, then they have rights under the law.

Even political speech would face dire consequences from this amendment:

Newspapers, television networks, magazines, and online journalism operations typically are incorporated. So are political parties and campaign committees, to say nothing of nonprofits, business associations, and the like. Under the People’s Rights Amendment, Thomas Friedman would still enjoy putative First Amendment protection, but it would not do him much good inasmuch as the New York Times Company, being a corporation, would no longer be protected by the First Amendment. In short, any political speech more complex than standing on a soapbox at an intersection would be subject to the whims of Nancy Pelosi.

Representative Donna Edwards, a Maryland Democrat, nonchalantly concluded that the amendment would of course strip even political campaigns of the First Amendment rights: “All of the speech which, whether it’s corporations of campaign committees and others engage in, would be able to be fully regulated under the authority of the Congress.”

The Democrats and the left will try to portray this amendment – much as Obama did with the Citizens United decision – as a “fairness” issue. It is not.

This amendment is a fundamental attack on the rights of all people in this country. It will affect anyone who wishes to join with others to express themselves. It will affect the freedom of the press. It will affect what may or may not be said in churches.

In essence, the amendment means American citizens will have to gain permission to speak and act when doing so in a group.

That is not the American way or ideal.

(Look for part two of “Fundamental Change and Fundamental Hypocrisy” tomorrow.)

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