Can a Non-Existent Right be Abridged?

2 votes

OLGA-thumbThis article discusses the details concerning the wrongfully decided Supreme Court decision in the Citizens United case. And with that wrongful decision the Roberts court struck down the most important provisions of the “Bipartisan Campaign Reform Act”, also known as “McCain Feingold”. Our position is that the Roberts court abused previous common law to create a “right to free speech” for incorporated entities that did not actually exist. The Roberts court then abused this fabrication to assert a breach of the First Amendment.

(in depth notes on this subject can be found in Judicial interpretation and Statutory interpretation).

In an earlier article regarding the “Citizens United” decision of the Supreme Court (SCOTUS), it was observed that the “Plain Language” canon of statutory interpretation was both first and foremost in the list of textual canons (previous article). In the previous article it was allowed that if the SCOTUS see “congress shall make no law abridging freedom of  speech” as plain language, then the ‘Plain Language’ canon is exhaustive and there is no reason to look to any further guidelines.

The gaping hole in that previous analysis was and is, the abuse of the “Plain Language” canon by the Roberts court. The Roberts court is asserting a underlying assumption that the United States Constitution impliedly recognizes a right of free speech for absolutely every THING in the cosmos. Such assumption seems to include nanny goats, fence posts, billiard balls, and whatever institutional creations the judiciary might wish to endow. If such inclusion within the constitution is financed by the “Plain Language” canon (which it is not) then it is also incumbent upon the judiciary to interpret words in their “plain language” sense. To wit: To “abridge” is to limit or curtail or shorten an already existing right or privilege. And if there is no pre-existing right or privilege then there can be no abridgement. What the SCOTUS has done is to create a right that is not supported by anything other than its own common law/judicial opinion, and then to claim an abridgement of this right as though the right exists outside its own judicial bubble. How convenient. It is like hoisting one’s self over a fence by grabbing one’s own underwear.

In our system of three co-equal branches of government, the SCOTUS is not to create additional constitutional provisions or to extend the plain meaning of current provisions simply through common law. To create a “right to free speech” for corporate entities, the legislature would need to place a suitable amendment to the constitution before the states, and the legislatures of the states or the people of the states would need to ratify it. The legislature and the executive (the other two co-equal branches of our republican form of government) are already in agreement to the opposite as these two branches created the Bipartisan Campaign Reform Act (BCRA), also know as “McCain Feingold”. That act forbids a “right to free speech” for incorporated entities in regard to electioneering. And the act is entirely correct and within the real boundaries of the constitution. A non existent right cannot be abridged and the “Plain Meaning” of “the congress shall make no law abridging freedom of  speech” has not been violated by the BCRA.

People have inalienable rights because, unlike billiard balls and corporate charters, they are corporeal, sentient, and capable of appreciating the concept of right. And this inalienable condition is described, not in the United States Constitution, but in the Declaration of Independence. The First Amendment specifically recognizes this inalienable human right and sets it forth within the constitution. And it is by this written acknowledgement and inclusion that this right becomes CONSTITUTIONAL.

Most certainly the departments of government, including the states, are recognized within the United States Constitution and thus have CONSTITUTIONAL rights. But according to the canon of Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”) , entities, and most especially institutions or classes of institutions not specified and recognized by the constitution and included therein do not have CONSTITUTIONAL rights. More pointedly, institutions do not have any rights at all unless government CREATES such rights within a particular context. In the case of corporations, rights have been recognized by the judiciary and have become part of COMMON LAW only. But until the legislature and/or the executive recognizes and support such rights as free speech enuring to incorporated entities, then such rights do not exist anywhere outside the judiciary itself. There is no such “right” at all, let alone a CONSTITUTIONAL right.

BUT WATCH THIS MAGIC ACT:

The SCOTUS, having created common law regarding corporate personhood, has now abused such common law to infer that because a corporation has the same rights as a person then a constitutional prohibition exists that would prevent any limitation on the free speech of incorporated groups. And based on this personhood linkage, the Roberts court seems to believe that it can award CONSTITUTIONAL rights, such as the right to free speech, to any institution it might want.

 

Corporate Personhood and Fair Elections

3 votes

Voting12345_RMuch is made of the need to limit campaign spending for federal and state offices. But what gets lost in all the wail and hue over how the rich are unfairly advantaged in the current system is the more serious destruction of democracy perpetrated by incorporated entities. The fatal blow to our democratic republic occurs when enormous sums of money are gathered to defame and smear any candidate that would stand against corporate oligarchy, plutocracy, or fascism.  And this money does not come from direct contributions to candidates, but from corporate structures DESIGNED to insulate the perpetrators/contributors from identification and/or prosecution. As such the supporters of corpotocracy, plutocracy,  or fascism can contribute huge amounts for the purpose of negative campaigning efforts and not be the least concerned about personal suits for slander and liable. Nor does the incorporated group need to pay any heed to campaign finance restrictions placed on candidates.  Since all of the money is being spent to advertise AGAINST a candidate, then the negative campaign can never said to be “coordinated” with any candidate’s positive campaign funding.  Nor is there any money left in the corporate treasury of “Americans for apple pie and Puppy Dogs” to be awarded the libelled plaintiff in a civil suit against the corporate entity.  All of the contributed funds will have been spent on the smear campaign.  Those who hate representative government love “corporate personhood”. Continue reading Corporate Personhood and Fair Elections

Connecting With Other Occupy Groups

3 votes

debtmonsterI have been receiving and enjoy the articles posted in this group from Washington DC. The address is: PopularResistance.org . I don’t have to go onto their website, it comes to me weekly, which is terrific. I also want to post about an Occupy Wall Street action that is terrific! Resistance is fertile!

FANTASTIC ARTICLE FROM ALTERNET! READ AND ENJOY!

A group of Occupy Wall Street activists has bought almost $15m of Americans’ personal debt over the last year as part of the Rolling Jubilee project to help people pay off their outstanding credit. Continue reading Connecting With Other Occupy Groups

WAmend, Occupy, and Move to Amend

5 votes

The WAmend coalition is a group of organizations working in concert to Amend the United States Constitution. Their primary thrust is to CLARIFY two very important issues: The first of these issues is referred to as corporate personshood, the point being that corporations are not people and as such are not entitled to constitutional rights. The other issue is that with regard to political campaigning, money is not synonymous with “free speech”, and therefore campaign spending can be regulated by congress on behalf of the people. One of the members of the WAmend coalition is the national Move to Amend organization who has joined with the national Occupy movement in presenting the following video: Continue reading WAmend, Occupy, and Move to Amend

The Future of Occupy Tacoma

3 votes

The Future of Occupy Tacoma
Reflections by Vince Hart

Looking Forward

Does OCCUPY TACOMA have a future? That depends almost entirely upon the kind of future that is wanted and upon the willingness of those concerned to accept the essential conditions for attaining such a future and constraining themselves to live and function under those conditions.

I express this view of the situation after fifteen months of almost weekly participation in the now tiny General Assembly (GA) at the First United Methodist Church in Tacoma (probably 56 out of about 60 meetings in that period). I was a late-comer to Occupy Tacoma, having observed it from afar from its first emerging in October of 2011. Out of curiosity I sat in on one of the early GA meetings at the church, where I am a retired clergy member (more on that in a moment); it was a meeting that almost filled the sanctuary (about 150 seats) and went on and on and on. I was little interested in such a thing. Only five to six months later did my own personal journey stir my interest enough to get me to “go see what was going on.” I believe it was the evening of Mothers Day 2012. I found probably no more than ten people present in a fairly large meeting space downstairs. In the words of the classic 60s song: “Where have all the people gone?” Continue reading The Future of Occupy Tacoma

Neglected Resource for Economic Justice

2 votes

A SERIOUSLY NEGLECTED FORCE FOR ECONOMIC JUSTICE

Addressing Today’s Grossly Unjust Distribution of Wealth

Part 1

Vince Hart

December 2013

“THIS IS A CHRISTIAN NATION!” a great many of the wealthy and “Conservative” members of United States society like to declaim. Some of the most influential members of the Congress on “the right” also make that claim as they defend the taxation and spending policies they vigorously advocate. We often hear the same claim of implementing “Christian values” when we encounter almost worshipful attitudes toward the “free market” or the very negative views of the “welfare state.” Continue reading Neglected Resource for Economic Justice

More On Corporate Personhood

2 votes

The rightarded are constantly attempting to false frame the issue of corporate personhood.  A notable salvo appears in an article in the Huffingtom Post penned by Kent Greenfield. The article was posted in January as Why Progressives Should Oppose A Constitutional Amendment to End Corporate “Personhood”‘.

“Though Citizens United was about free speech rights, and the main concern of its opponents is about the power of large, for-profit corporations, the People’s Rights Amendment would end all constitutional rights for all entities that are not natural persons. So a private university — not a natural person — could be required to start classes with a prayer. The government could prohibit The Huffington Post — not a natural person — from printing columns critical of the president. The FBI could seize the servers owned by Google — not a natural person — without a warrant. Each of these would be a clear constitutional violation under current law, but would be permitted under the People’s Rights Amendment.”

The lie by lie is as follows:

“Though Citizens United was about free speech rights, and the main concern of its opponents is about the power of large, for-profit corporations, the People’s Rights Amendment would end all constitutional rights for all entities that are not natural persons”

There are at least two lies in this one sentence: (1) The PRIMARY CONCERN of many of the realistic members of “Move To Amend” is the destructive behaviour of “NON-PROFIT” organizations dedicated to smearing all candidates for office who do not “suck up” to the 1%.  ‘For profit’ corporations do not normally want to become embroiled in elephant versus donkey electoral wars because they will lose market share by doing so. If they cannot act through other associations such as lobbyists, non-profits, or Political Action Committees then they are far less likely to do so.

And (2) the first amendment SPECIFICALLY protects the church and the press and ‘the people assembled to seek redress of grievances’. Speech directly attacking individual candidates or individual elected officials is not protected by this clause concerning redress. According to “statutory interpretation”, NONE of these SPECIFIC protections in the First Amendment would be repealed by the McGovern amendment — see the actual proposed amendment as a PDF. The Specific clause of the wikepedia article that protects First Amendment rights is as follows:

Generalia specialibus non derogant (“the general does not detract from the specific”)
Described in The Vera Cruz (1884) 10 App. Cas. 59 as: “Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any evidence of a particular intention to do so.” This means that if a later law and an earlier law are potentially—but not necessarily—in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute. Lawmaking bodies usually need to be explicit if they intend to repeal an earlier law.

Therefore, the constitutional guarantees specifically accorded the church, the press, and the people assembled to seek redress are still perfectly intact and valid even with the “McGovern Clarification”.  It should also be said that these statutory interpretations (Common Law) extend to section one of the amendment drafted by “Move To Amend” and introduced in the US House of Representatives February 11, 2013

The next illustration of lies says:

“So a private university — not a natural person — could be required to start classes with a prayer.”

And, of course, that sort of crap is prohibited by the first amendment — “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.  BUT!!! PRIVATE INSTITUTIONS can do whatever they or their benefactors want with regard to religion.  People are free to sign on or not.

Then we have:

“The government could prohibit The Huffington Post — not a natural person — from printing columns critical of the president.”

The Huffington post is an on-line NEWS source, not to be confused with the “Faux Noise” TeeVee propaganda channel or even the MSNBC channel.  Articles critical of the amendment are posted at Huffington (like this one) as are supportive articles.  Huffington post is “The Press” and often posts articles criticizing the president. The claim that “The Press” will be stifled by this amendment is total crap.

Then we have:

“The FBI could seize the servers owned by Google — not a natural person — without a warrant. Each of these would be a clear constitutional violation under current law, but would be permitted under the People’s Rights Amendment.”

What is remarkable is that the judiciary could have interpreted the US Constitution in such a way as to ensconce constitutional protections for institutions CREATED BY OR ALLOWED BY THE LEGISLATURES. Incorporated entities are not specifically nor generically mentioned in our US Constitution and these entities are CREATIONS of the CONSTITUTIONALLY AUTHORIZED LEGISLATURES.  Most normal, well adjusted, human beings would probably agree that the creators of these entities are responsible for their regulation. And returning now to “Statutory Interpretation”, we have:

Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”)
Items not on the list are impliedly assumed not to be covered by the statute or a contract term.[3] However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as “includes” or “such as”.

I don’t see “such as” in the First Amendment.  The “Church”, “The Press”, and “The People assembled to seek redress” are SPECIFICALLY mentioned.  Other _GROUPS_ are not.

It seems to me that if the corporatists want constitutional protections for corporate rights then they will need to amend the constitution to include such provisions. Because those provisions do not currently exist.

But on that score let us understand that the right of a spouse to be free from compelled testimony regarding the other spouse is NOT a constitutional right (see here).  It is a LEGAL right created by common law.  Attorney-client privilege, on the other hand, is based on statutory law enabled by acts of the legislature. Common law is the basis for any currently SUPPOSED corporate rights. There is no constitutional prohibition that would stop the legislature from enacting statutes that overrule common law. That is why legislatures exist. But since a legislature is empowered by the people we are not in danger of losing spousal privilege or attorney-client privilege. There is also nothing that would stop the legislature from extending the search and seizure protections of the 5th amendment to corporate bodies in such a way as to insist on a warrant.  I have NO doubt that such legislation would be immediately forthcoming when it becomes clear that an amendment clarifying the constitutional facts will be presented and passed. Sorry, conservatives. All of the laws are not IN the Constitution. We have constitutionally defined and authorized bodies for that purpose, and the legislative body is superior to the judicial. In the normal course of events, should the legislature, on behalf of the people, decide that current “common law” is lacking or inappropriate, then the legislature creates statutory law to correct the problem. And the judiciary is bound by constitutional construct to abide by the legislated statutes.

The Critical Urgency of Informed Dissent

2 votes

I watched the emerging of the Occupy movement from afar for ten months, wondering if it might have any such success in toppling entrenched centers of power, control and exploitation as had been happening in the “Arab Spring.” My interest was driven, above all, by my awareness that the 2012 Election was not addressing with any focus or seriousness the fundamental issue identified in the “1% and 99%” cry of the “occupiers.” Behind that awareness was one further source of my interest and concern: years of serious Bible study as a United Methodist pastor. Continue reading The Critical Urgency of Informed Dissent

Citizens United Interpretation Via Statutory Canons

2 votes

shutterstock_116946838There has been and will remain much controversy over the decision of the supreme court entitled “Citizens United v. Federal Election Commission“. This brief article looks at how this decision would be rendered if the judges were to adhere strictly to the “Cannons of Statutory Interpretation“. The article then opines as to the proper course of action in constitutional amendment. Continue reading Citizens United Interpretation Via Statutory Canons

It Was Government Stimulus, not WWII, Stupid!!!

4 votes

Government stimulus, not WWII, got us out of the Great Depression