I've Said It Before...

... and I'm sure I'll say it again. Anti-corporate personhood movements show a supreme lack of understanding of the underpinnings of corporate law. Also, they show a lack of understanding of the reasoning behind Constitutional protections for the individual.

I ran across this today. I know it isn't new. I know it isn't news. It is, however, noteworthy.

Why? Let's see if I can break down the problems with this proposal. Right off the bat, I have problems with the drafting of the proposal. The first section is designed to strip Constitutional protections from corporate entities. Just take a moment to consider what Constitutional protections companies currently enjoy. We have the controversial right to free speech-political or advertising, both have some significant restrictions. We have the famous freedom of the press (almost exclusively corporations, up until the advent of the blogosphere). We have the protections of the 4th Amendment against unreasonable search and seizure. We have the protections of the 5th Amendment, though only the takings clause really applies to companies.

Certainly, one could argue that corporate owners could protest things such as governmental seizures without just compensation. But the arguments to get there if the assets are in the corporate name get murky quickly. Absolutely, one could say that Freedom of the Press should apply when the corporation is a publishing company. The words are not its own, but rather those of the authors it publishes. But, it could just as easily be argued the other way. It could easily go the other way in the 4th Amendment context, given that amendment specifically says "person." Therefore, no company could complain if the police rifled through corporate documents without giving even enough reason to get a warrant. Oh, but don't worry, the information in corporate documents wouldn't violate private rights. Go ahead and look through the corporately held documents of that bank, or Facebook.

Furthermore, some problems would arise from this. First, federal judicial power is restricted to citizens. Currently, calling a corporation a fictional person also makes the corporation a citizen of a state. Strip that fictional status, you leave the corporation the ability to claim the federal judiciary has no jurisdiction over the corporation. It is, admittedly, a stretch to argue. However, get the right judge (perhaps one who disagrees with the amendment) and you can get the case tossed.

Lastly, a goodly portion of the Constitution is directed toward disallowing the various States from imposing laws that restrict or impair trade between the States. I'll end by asking: what do you think disparate corporate legal protection-especially given the words of the full faith and credit clause-would do to trade across state borders?

Affordable Care Act

As I'm sure most of you know, this morning, the Supreme Court upheld the healthcare bill (ACA). From a political philosophy perspective-and this may surprise some of you who know me-I do think the sovereign has the right regulate, even mandate, healthcare coverage. However, that gets very complicated in a dual sovereign system such as the one in the United States. So, you begin to see why I can say the sovereign has the power and right to do this, yet still say the federal government should not. The Constitution was designed to limit the federal power, and leave the rest to the states. (Yes, later the states were limited by the Amendments, etc.) In my opinion, if one of the sovereign States' peoples voted to institute a healthcare system for that State, and could fund it, then more power to them.

All that said, what do I think of the ACA? I (like most of Congress) have not read it. So what the actual changes will be, I can only speculate. But I will predict that it will not have a huge impact on the majority of Americans. I think it is safe to say that most citizens have very little knowledge of what laws are in place that keep things running in the manner we expect, or prevent things from running as well as they could. People just are too oblivious to notice. It will probably be the same with this.

There is one exception: I can expect to make some money off of it. A new bureaucracy will lead to more business for lawyers willing to take on administrative law cases.

A Little Comparative Legal History

This afternoon I had the pleasure of attending talks by two German Academic Exchange Service (DAAD) Fellows. The first was a very engaging discussion about theories of criminal punishment and the use of preventative detention in the German penal system. The second was an historical perspective on the development of abortion law, with a comparison between the US development leading up to and surrounding Roe v. Wade and German jurisprudence around the same time.

The speaker, Felix Lange, remarked that it was a striking contrast in the jurisprudence of otherwise similar Western democracies. Obviously, in Roe the Supreme Court ruled that, as a matter of right to privacy, women in America have the right to an abortion. The German Constitutional Court took a different view, it ruled that the right to life in the German constitution extended to protect the unborn.

Why the dichotomy? The proposal that the Courts were merely responding to the social conscience of the people was held up as a major reason for the opposing rulings. The German people still had the memory of the policies and horrors of the National Socialist movement fresh in the collective conscience. The desire to distance themselves from that history may have influenced the Court toward a ruling that came down firmly on the side making a clear statement for the sanctity of life.

An interesting proposition, don't you think?

Exercising Freedoms

Not to be confused with "Exorcising Freedoms." Sorry, it is Halloween time, so a slight reference was necessary. (No matter how bad the pun.)

Two things combined to bring you, my faithful readers, this post. First, I had the pleasure of attending a symposium on the First Amendment right to freedom of speech last weekend at the University of Virginia Law School. The symposium featured some of the great legal minds, such as Dean Post of Yale Law School, Fred Schauer of UVA Law, Vincent Blasi from Columbia Law, and Eugene Volokh of UCLA Law. The highlight of the day was the keynote speech delivered by Chief Judge Alex Kozinski of the 9th Circuit.

Judge Kozinski revealed to the crowd of students and professors a little secret about the freedom of speech. In the internet age, he believes, speech protects itself. He spoke about the viral nature of information on the internet, how attempts to enforce copyrights and remove web content that infringes on individual privacy sparks a backlash in the throngs of largely anonymous readers leading to the wider dissemination of information than the original act of passively allowing websites to host the content ever would have.

Obviously, Kozinski still believes in the validity of constitutional protections afforded by the First Amendment, but his point is that constitutional restrictions on the written word hosted on the nebulous world wide web of computers are fruitless.

In a(n unintentional) corollary to that speech, Hack a Day just posted an interesting hacker backlash to courts attempts at regulating internet peer to peer file sharing.

http://hackaday.com/2010/10/30/this-is-a-peer-to-peer-filesharing-network/

Hard wired file share ports. This is the sort of thing that Kozinski meant about the self protecting nature of the modern methods of "speech."

Maverick Montana

Montana has, for as long as I can remember, been something of a maverick state. The reputation it holds conjures up images of people living off the grid and dodging the Federal government rules and regulations. They're at it again.

World Net Daily reports that the State of Montana has passed (and the governor has signed) a law stating that Federal regulations cannot apply to guns and ammunition manufactured in Montana for sale and use within the state. The state is citing the Commerce clause, correctly stating the Constitution only allows for Federal regulation of commerce in interstate commerce rather than completely self contained intrastate commerce. The WND article has a more in depth detail of why Montana says they have the power to enact this law, including detailing the "contract conditions" under which they became a State of the Union. Mainly, I'm interested to see how the Feds handle this sort of direct thumbing of the nose by a state which, as far as I can tell, is correctly using the 9th and 10th amendments to enforce its views of the 2nd.

For another blog on this, go here.

Back to the US legal system.

It's been a little while since I posted here, so I'm starting back in with something simple: separation of Church and State.

I know, hardly a simple topic, but nothing in Constitutional Law is easy. However, I think in this case it's a little more straight forward. There is a case being brought against the U.S. Department of Defense by an atheist army soldier.

The text of the First Amendment is as follows: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What does that mean in this case? From the article, I gather that the majority of the soldier's complaint stems from his treatment by other soldiers rather than from formal actions of the military. If that is the case, I can't see how the case can have merit. In order to attain freedom of religion, the military can't keep anyone from practicing their religion, right? What if part of that religion involves the belief that one must evangelize? In that case, to prevent soldiers from attempting to convert someone would be restricting freedom of religion, would it not?

However, if the military, in it's official capacity, treated Spc. Jeremy Hall any differently than any other soldier then the case does have merit. In the eyes of a bureaucracy, a soldier is just a soldier and is dealt with according to the rules set out in triplicate. Or so it should legally be.