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.

Food for Thought

For any of you with e-readers of some kind (insert unsolicited plug for B&N's Nook here), you should go peruse the archives at Project Gutenberg. It has all sorts of wonderful works that have made their way into the public domain of copyright. Works such as St. Thomas Aquinas's Summa Theologica and Sir Arthur Conan Doyle's The White Company. It also has, to my delight, a number of works by G.K. Chesterton. This gives me the opportunity to read Orthodoxy and Eugenics and Other Evils. The latter piece starts with the following paragraph:

The wisest thing in the world is to cry out before you are hurt. It is no good to cry out after you are hurt; especially after you are mortally hurt. People talk about the impatience of the populace; but sound historians know that most tyrannies have been possible because men moved too late. It is often essential to resist tyranny before it exists. It is no answer to say, with a distant optimism, that the scheme is only in the air. A blow from a hatchet can only be parried while it is in the air.

That opening paragraph illustrates, far better than I could, why arguments consisting of what may be characterized as "scare tactics" have some merit. It is a statement that is at the core of my reasons for arguing for limitations of government, and why I typically am not in favor of extensions of government power.

I know that I have friends who simply cannot understand my willingness to "prevent people from receiving adequate medical care because they can't afford it" and other such stances to curb social welfare projects. I believe those friends have the best of intentions. Nor am I unsympathetic to the needs of the, for lack of a better word, needy. I simply think that our government is one of strictly confined powers and those bounds should not be exceeded, no matter how good the intentions. (Good Intentions: sponsored by Hell Paving & Asphalt Co.)

Perhaps I could have more fully formed this post before writing, but if I tried to do that, I never would get anything done. That said, as I read more of Eugenics, I will pass on more political/ethical thoughts from the Chesterton/Cramer distillation project. (Ha, evidence of the supreme arrogance of a law student to make that comparison.)

Sedition

Sedition is a word not often found in the American vocabulary. Webster’s Unabridged Dictionary defines it as “The raising of commotion in a state, not amounting to insurrection; conduct tending to treason, but without an overt act; excitement of discontent against the government, or of resistance to lawful authority.” That looks like it covers a rather narrow spectrum on the path to treason; but then, what is treason?

According to the Constitution of the United States of America, Article III, Section 3, “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” When is it an act against the United States? Is it an act contrary to the interests of the State, or contrary to the government du jour? Is it treason to act against the government but in support of the nation?

The Constitution was born out of the desire to ensure the freedoms of the people. The authors knew that people need and desire the ability to govern their own lives. To this end, the Constitution was written to limit the ability of the government to interfere in our lives. The balance of power between the three branches of the government was designed to make it more difficult for those in power to encroach on our freedoms. The Bill of Rights was written to more specifically detail what we as a people have a right to; in other words, it details in what things we have a freedom from our government. All of this freedom comes at the cost of our responsibility. We are to be responsible for our own actions, and the consequences thereof. Out Founding Fathers were particularly clear in their personal speeches and writings as to what their opinions on the matter of taking personal responsibility instead of abdicating accountability to an outside force, such as a government, were. A few quotations of what I mean are to follow:

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." -- Benjamin Franklin, Historical Review of Pennsylvania (1759)

"Against us are... all timid men who prefer the calm of despotism to the boisterous sea of liberty... We are likely to preserve the liberty we have obtained only by unremitting labors and perils." --Thomas Jefferson to Philip Mazzei, 1796. ME 9:336

"The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first."-- Thomas Jefferson

"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined." -- Patrick Henry, Virginia's Ratification convention, 1788

"I believe there are more instances of the abridgement of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations." -- James Madison

But, as times have changed, must we change our views on for what the government is responsible? As our world and political climate has grown more complicated, are these opinions outdated and no longer functional? I, for one, do not believe that advances in society mean that we must have different principles. I cannot conscience the thought of relinquishing my freedom to gain freedom from my mistakes. The idea of allowing some entity to bail me out of my own mess is unfathomable. If you take responsibility for what I have done, I become indebted to you…I allow you to make my decisions. If you have responsibility for my life and make my decisions, it is no longer mine. Once a person gives over their responsibility, they say that someone else is more knowledgeable about their needs and wants. I don’t know about you, but I believe that no one can better decide for me what I need than I can. If you believe that the people in Washington are better than you at knowing your situation, then by all means, allow them to run your life. But remember, people in power are still mere people. Government is made up of fallible people and there is no guarantee that a government decree is any more trustworthy than the decree of someone on the subway sitting next to you.

The Founding Fathers knew they were mere mortals, as prone to mistakes as the next man. This is why they wanted the Constitution framed in a manner that put the government in a position of subservience to the people. Once the American people remember that our founding documents name us as the source of power, we will need a good, long look at what our government has been doing in the time between then and now.

"Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government" -- James Madison

If the government abandons the ideals of the Constitution and its authors, is it still lawful and moral to support it?

Is it seditious to ask?

Food for Thought

While I have been lax in my postings here the world has moved quickly onward. It has moved onward, but not necessarily upward (fans of the Narnia books, you know the reference.) I have not had the time to find the subject for a complete post... so I have a question instead. Food for thought, as some would say.

Can true advocates for personal freedom and personal responsibility be found in the rank and file of formalized and institutional government? Can anyone who has the desire to work as a lawmaker and a leader of a country actually believe that the people are better off doing things on their own, without interference from the powers that be?

In partial answer to my own questions, I present the statement of the statesman Daniel Webster, "Good intentions will always be pleaded for every assumption of power. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters." Webster, himself a leader, recognized the subverting influence power has over man. It goes along with the old adage "The road to Hell is paved with good intentions." When people can sit back and abdicate personal responsibility to the promise of a being given a better life, they may in the end be given the "better life," but is it actually theirs? Does a man possess that which is not earned or does the man become the servant of those who can provide for him?

Finally, the last little bit to think over is another quotation from one of the great men who shaped the United States, Samuel Adams. All I ask is that people read this and think about what the ideals this country was founded upon mean for us today: "If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; and may posterity forget that ye were our countrymen."

Freedom

I recently began reading von Hayek's The Road to Serfdom and, while I have yet to finish it and therefore cannot give an analysis or review, it started me thinking. What is freedom?
Freedom would seem like it is a very simple concept. Yet, even when you look up the definition, it gets complicated quickly. In a political sense does freedom mean merely an absence of confinement or does it mean the ability to choose one's actions, thoughts, and words? The Declaration of Independence is often thought of when somebody asks about documents of freedom, but it actually never uses the word and only has the word "free" twice. Once in saying "A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people." and once describing the colonies as "Free and Independent States." This tells me that the writers of the Declaration already had a concrete idea of what Freedom means.

"Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the Author of nature, because necessary for his own sustenance." --Thomas Jefferson: Legal Argument, 1770.
"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual."--Thomas Jefferson to Isaac H. Tiffany, 1819.

When you put those two comments together, you get the image that the word freedom meant the right to live your life as you see fit and to have no one but you responsible for how it turns out. The only restrictions that can morally be placed on your individual freedom is when your actions abridge the liberty and freedom of another individual.

What does this say about government's role in the life of the people? What does it mean when the government is called to care for the "general welfare" of society? Does it mean that government must help the less fortunate members of society or does it mean that government is only there to prevent those who would take advantage of the less fortunate of society from doing so? If government chooses to support the poorer people is that an abridgement of the poor's right to living their own life and their duty as free people to take responsibility for themselves?