“‘People’s Rights Amendment’ Would Knock Out People’s Rights”

by Walter Olson on May 17, 2012

George Will gets to the essence of this grotesque assault on civil liberties, fed by demagoguery over the Supreme Court’s Citizens United decision:

McGovern [Rep. Jim McGovern, D-Mass.] stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights.

Incredibly, versions of this radical rights-stripping measure has been endorsed through resolutions by the state legislatures of Vermont, Hawaii, and New Mexico, with backing from groups like Public Citizen. [Ilya Shapiro and Kathleen Hunker, Cato; Hans Bader, CEI; earlier] More: Professor Bainbridge (“utterly moronic”)] Among sponsors of this extraordinary measure: Reps. Earl Blumenauer (Ore.), David Cicilline (R.I.), Steve Cohen (Tenn.), John Conyers, Jr. (Mich.), Jim Cooper (Tenn.), Peter DeFazio (Ore.), Eliot Engel (N.Y.), Sam Farr (Calif.), Bob Filner (Calif.), Gene Green (Tex.), Raul Grijalva (Ariz.), Janice Hahn (Calif.), Martin Heinrich (N.M.), Maurice Hinchey (N.Y.), Jesse Jackson, Jr. (Ill.), Walter B. Jones, Jr. (N.C.), Barbara Lee (Calif.), Jim McDermott (Wash.), Christopher Murphy (Ct.), Richard Neal (Mass.), Eleanor Holmes Norton (D.C.), John Olver (Mass.), Chellie Pingree (Maine), Louise McIntosh Slaughter (N.Y.), Adam Smith (Wash.), John Tierney (Mass.), and Peter Welch (Vt.). Murphy is running for an open U.S. Senate seat in Connecticut.

{ 12 comments }

1 Eric 05.17.12 at 10:39 am

Will’s assertion is categorically false and is nothing more than the constantly repeated Cato Institute talking point on the matter.

Rep. McGovern’s bill specifically and explicitly upholds the First Amendment rights of all people and entities in Section 3
http://thomas.loc.gov/cgi-bin/query/z?c112:H.J.RES.88:

George Will is entitled to his own half-baked opinions, but not his own reality.

2 Howard Gilbert 05.17.12 at 12:19 pm

The one thing that this amendment does not do is it does not reverse the Citizens United decision. The relevant wording of the First Amendment reads “Congress shall make no law … abridging the freedom of speech, or of the press”. Nothing in the amendment mentions or depends on the speaker having a “right”. In the case, US v One Book Entitled Ulysses by James Joyce, the nominal defendant was a book because Joyce (an Irishman living in Paris) and his French publisher were both beyond the reach of the courts and beyond the protection of the Constitution. However, the book itself (an inanimate object with no human rights) was still protected by the First Amendment which in its text protects the freedom of the press and not the human right of the publisher. In reality, this case was about my Constitutional right to read the book. The First Amendment protects the free marketplace of ideas, and it protects the rights of the listener or reader as well as the rights of the speaker or publisher. So I have a constitutional right to view the Citizens United movie, even if the Citizens United corporation has no protected right of free speech itself. The only way to overturn Citizens United is to repeal the First Amendment outright.

3 antiredistributionist 05.17.12 at 1:12 pm

Are you kidding, Eric? Sure, Section 3 “upholds the rights of all people” (there is no reference to “entities,” contrary to what you say) – but Section 2 states that “corporations, limited liability companies or other corporate entities established by the laws of any state” are not included in the term “people” as used in the Constitution.

Talk about having your own reality.

4 DensityDuck 05.17.12 at 3:07 pm

bubububub Exxon is riiiiiiiiiich

5 Bored Lawyer 05.17.12 at 5:46 pm

The amendment is even worse than Will argues. UNder the amendment:

1. Federal and state governments could confiscate corporate assets (and those of other legal entities) at will — no right to just compensation. Similarly, the could be found civilly liable for any wrongdoing or guilty of any crime on the say-so of a government functionary — no right to due process of law.

2. Corporations could be barred from publishing or aiding in the publishing of anything critical of the current Administration/Congress/State Legislature/Bureaucracy. This would include barring newspapers owned by corporation to publish same, and barring ISPs and Bloghosting companies (who are virtually all corporations) from allowing their services to be used to post opinion pieces and blogs critical of the government. True, an individual would still be free to speak his mind, and he could print pamphlets on his home computer and hand them out at the local park/mall/public place, but he would not be able to use any means of dissemination owned by a corporation — which is most of them.

3. Corporations and other entities would not enjoy any right of equal protection or its federal equivalent under the due process clause. So any of the above laws (or others) could be applied discriminately. I.e., one rule for Republican/conservative organizations, another for Democratic/Liberal organizations.

6 Hugo S. Cunningham 05.17.12 at 9:49 pm

People’s Republics are ordained to protect People’s Rights.

7 ZB 05.20.12 at 1:21 pm

The so-called People’s Rights Amendment will remove rights from the corporation itself, not abolish the corporation. The shareholders, and employees within are “natural persons”. Therefore, the idea that somehow the first, fourth, fifth, and other constitutional protections would be gone for people, and their property within a business or other corporation is not true. Apparently, the aim of the language is to restore the United States Constitutional system, and corporations to the pre-1886 Santa Clara Supreme Court Decision Era. Already in that time the United States was a booming free society, and economy. Churches, newspapers including the New York Times and Post existed, and corporations published books, etc., so the idea of putting corporations back to the “privilege status” will just restore balance in our society between Walmart, store Mom and Pop, and Joe Six Pack voter. The clause which says “…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.” would still allow judicial review of what exactly the powers of Congress and the States are. Therefore this is not some sort of giveaway of power to a dictatorship. Finally, could the language be improved? Maybe? However, this is a proposal, and before any amendment to The Constitution goes through there are well constructed hurdles to force people to get their intellectual-verbeage act together. Congressman McGovern has continued a needed debate about corporate “rights”. Now, come to the table as fellow Americans and reason together, reasonably.

8 ZB 05.20.12 at 3:49 pm

Correction: The third sentence of my recent post should have said: “Therefore, the idea that somehow the first, fourth, and fifth amendments, as well as other constitutional protections would be gone for people, and their property within a business, or other corporation is not true. “

9 Hans Bader 05.21.12 at 3:53 pm

ZB claims:

“the aim of the language is to restore the United States Constitutional system, and corporations to the pre-1886 Santa Clara Supreme Court Decision Era.”

No, it isn’t. Pre-1886, corporations had rights. The Supreme Court has long recognized that corporations have constitutional rights, ever since its decision in Dartmouth College v. Woodward (1819).

I explained that at this link:

http://www.examiner.com/article/amendments-try-to-take-away-the-rights-of-corporations-and-gay-people

European courts have also ruled that corporations have free speech and due process rights.

If you get rid of company’s rights, it is doubtful whether companies’ shareholders will have any enforceable property rights in their shares in the company, given the plain text of the “People’s Rights Amendment,” and judicial limits on shareholder standing apart from the corporation they hold shares in.

10 ZB 05.21.12 at 6:00 pm

Hans Bader claims: “The Supreme Court has long recognized that corporations have constitutional rights, ever since its decision in Dartmouth College v. Woodward (1819). The Dartmouth College case dealt the “impairing of contracts” by a state. Contracts cannot be tampered with under Article I, Section 10. The case did not bring into play the college, or corporation’s 1st, 4th or 5th amendment rights. By implication the trustees, or shareholders had those rights protected since the state of Vermont could not “impair the contract”. State power is limited by Article I, Section 10 within the People’s Rights Amendment because they must be “… otherwise consistent with the powers of Congress and the States under this Constitution.” If the language needs explicit tweaking for reassurance than the Article and Section cited can be restated in a rewritten amendment. Additionally, the rights of people within a company cannot be nullified, but are in fact reinforced within section 3 of the McGovern text. Corporate personhood and extending the Bill of Rights to Corporations did come from the summary of the 1886 Santa Clara decision, and not prior. Yet America was a fully free society except for African Americans who had the very 14th Amendment that was supposed to allow for their equality used ironically in Santa Clara to create the origins of corporate supremacy.

11 Hans Bader 05.21.12 at 9:14 pm

If the constitutional right against impairment of contracts applies regardless of whether the aggrieved party is a corporation — as ZB appears to concede based on an 1819 Supreme Court — then so, too, should the constitutional “freedom of speech,” which protects speech regardless of whose speech it is, and regardless of whether the speech in question is by a corporation or not. The First Amendment’s freedom of speech does not contain any words limiting its protections to individuals, people, or citizens. So Supreme Court decisions like First National Bank of Boston v. Bellotti holding that the First Amendment applies to corporations — decisions long predating the Supreme Court’s Citizens United decision — were rightly decided.

12 ZB 05.22.12 at 12:02 am

Hans Bader, the case is called Dartmouth College v Woodward, or Trustees of Dartmouth College v. Woodward. It talks of of the rights of “the trustees” plural to have the contract acknowledged and enforced. The college was merely acting for them (“had standing”), not independent of.
Due to your reasoning the whole of The Bill of Rights should apply to the corporate form, yet it does not, never has, and prior to 35 years ago the justices would have picked apart and rejected any lawyer arguing a bank in, and of itself had free speech rights like a born, naturalized citizen(s), or otherwise living breathing human(s). Last year Judge Roberts, showing a line of inconsistency because not even he completely believes such wretched nonsense, ruled that personal privacy laws did not apply to ATT corporation. Still, The Supremes as of the last three to four decades have been excellent usually at finding ways a state licensed “legal fiction”, or the “paper mask ” people incorporated wear, and usually wealthy (such as a bank, or Monsanto), has rights independent of the “real biologically living face, and body”. This type of reasoning is not only of the absurd, but it leads to the corporation in and of itself having a much greater voice than mere humans, individual and freely assembled (associated), as appears to be the intent of the lawyers and judges involved in producing this legal farce. (Talk About Overlawyered!, or should I say over thought, or half baked?) It is without wonder that The United States is rated as a less free society than ever within the last 30 years. (See the Freedom House report on our ranking for press freedoms compared to other countries). Compare that to the days when liberal, and moderate politicians and judges dominated the government 40 + years ago, and properly regulated things. And if freedom of speech (and the Bill of Rights) applies to non-humans equally with humans than certainly The Constitution’s Preamble: “We The People”, “…blessings of liberty to ourselves and our posterity”, and the Ninth Amendment which makes clear rights exist for humans because they are humans do not actually mean what they say. Just one last thing, Hans Bader, since this is an argument in part on who is mangling the reading of the constitutional text, and people love to go back to The Founding Fathers, and The Court Giants for inspiration, how come all along none of them had these notions about bank’s speech, and the like, that have been in legal vogue since roughly 1978, or 1980??? If that was the case, surely the Citizens United ruling should have been made 105 years ago to undo the Tillman Act of 1907 it effectively and recently dethroned after a century of practical enforcement?

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