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Forum Post: Amending the Constitution

Posted 2 years ago on March 7, 2012, 10:46 a.m. EST by pewestlake (947) from Brooklyn, NY
This content is user submitted and not an official statement

http://www.change.org/petitions/pass-the-human-rights-amendment

Abolishing Corporate Personhood in Process-Oriented Language

It all began in 1886 with Santa Clara County v. Southern Pacific Railroad. Most of us know by now that the headnote from that otherwise sleepy case is the original culprit. And even though granting corporate personhood in a headnote is neither legal nor logical, it has been accepted as settled law by the Supreme Court ever since. There is no reason to believe that will change. So we have to acknowledge it and act.

All of this hinges on a simple problem – the improper definition of the word “person.” That one simple act of expanding the definition of “person” to include legal fictions has resulted in the granting of rights to organizations that previously enjoyed only privileges. There are several ways to put that genie back in the bottle. The mistake most other amendment language makes is in trying to distinguish one type of legal fiction from another and/or attempting to strip all rights from corporations, which would have a catastrophic impact on corporate contract law.

It’s possible to roll back 125 years of case law without having to completely rewrite the laws that grant corporate charters. And that is by simply limiting the definition of the words “person,” “persons,” and “people” to living people. Rather than describing what legal fictions are not, which will never encompass every type of legal fiction that can be invented, we describe what real people are, carving all legal fictions out of the equation.

Designed to grant citizenship to all former slaves, section one of the 14th amendment begins with a simple definition of citizenship and goes on to place limits on the powers of the federal and state governments to abridge the rights of all citizens. It’s clear that the 14th amendment applies only to living persons because it uses the terms “born or naturalized,” which legal fictions are neither. They can be built, organized, founded, incorporated, spun-off, merged and more, but no legal fiction is ever born or naturalized.

A person is a living human being and nothing else. This is no time to include animal rights or use a term like “artificial person.” We don’t know what kind of life will be considered a “person” in the distant future. We have to deal with what we have right now. The only thing that can be considered a “person” right now, and for the long foreseeable future, is a living human being. Thus the language:

Section 1: In all instances wherein the words “person,” persons,” and “people” appear in this constitution, such words shall be construed to define living human beings only.

Money as Speech: A Rebuttal

The Supreme Court’s view that spending money is an expression of speech is correct in the abstract. So is throwing a rock through a window. Both actions can be seen as an expression of speech — one favorable, the other hostile. But nobody expects the courts to protect a person’s right to throw a rock through a window as an expression of speech over the window-owner’s right to be secure in his or her property, even if the window is on a building that belongs to the public.

The mistake the Supreme Court has consistently made with regard to money is in failing to acknowledge the real damage wealthy organizations and individuals can have on the electoral process. Whether done to property with a rock or to public opinion with a barrage of campaign ads, the damage is real.

The public has a right to control human-made forces that can have a damaging impact on society. The electoral process is so intrinsically critical to the proper functioning of our democratic republic that any systemic bias must be seen as damaging to our society, and therefore, subject to regulation no different than any other societal threat.

Money itself is not speech and it need not be for the Supreme Court to continue to strike-down campaign finance reform laws. It’s the spending of money that constitutes an expression of speech. Any amendment to the constitution that intends to end the Supreme Court’s reading of the first amendment must include language that not only defines money as a tool (like a rock), but also prohibits congress from recognizing the using of that tool as an expression of speech (like throwing the rock).

The judiciary need not be included as their role is simply to interpret the constitutionality of laws that emanate from congress. Prohibiting congress from passing the kind of laws that interpret the constitution the way the Supreme Court already has interpreted the constitution, starting with Buckley v. Valeo, effectively overturns 36 years of case law with regard to money in politics. Thus the language:

Section 2: “Money” is defined only as legal tender for the purpose of settling all debts, public and private. Congress shall make no law recognizing the free flow of money as an expression of speech of any kind, or as an expression of any of the rights enumerated in this constitution.

Adding Teeth

It has become typical in later constitutional amendments to include language that empowers Congress to enforce the new amendment in the final section. That’s what this final section was originally designed to be.

Because the Supreme Court has usurped the power to (de)regulate elections, we included language that reaffirms Congress’ power to regulate elections as set down in Article 1, Sections 4 & 5 of the Constitution. This is limited to federal elections to avoid granting Congress too much power over state and local elections. Thus the language:

Section 3: Congress shall have power to enforce this article and to regulate federal elections by appropriate legislation.

Summary

The Constitution is a process-oriented document. It should be amended with process-oriented language. The constitution deals with powers, privileges and rights. The reason corporations have too much power is because the Supreme Court has too much power and has used it improperly. This language is designed to clip their wings and give Congress the ability to rein in wealthy interests. Think about being the Congressperson, who votes for CFR, only to see SCOTUS strike it down time and again. Still want to put yourself in the cross hairs, especially in the wake of CU v. FEC?

We have to empower Congress to act by sweeping SCOTUS out of the way and clearing the path for meaningful CFR that can survive an election cycle. This language would end the legal cover provided by SCOTUS. No other amendment I’ve seen would be as effective in getting SCOTUS out of the way and most of them would do too much harm to centuries of established contract law. This is the better approach, even if this particular language doesn’t survive. This is the correct way to do it. We hope more people start to agree. It’s unlikely that any kind of campaign finance reform packaged as an amendment would be passable with 2/3rds support in Congress and ratified by 3/4 of the states.

14 Comments

14 Comments


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[-] 4 points by bensdad (8977) 2 years ago

Virtually everything we want hinges on disarming our opponent –
……………………………………………………..GREED
by stopping the flood of bribes into our government.


YOU WANT TO GET IT DONE ? ARE YOU SERIOUS ?
Join the NYC OWS
Corporations are not People and Money is not Speech Working Group


This is the first REAL step to
REAL change .

government OF the people BY the people FOR the people

JOIN US >
Join the NYC OWS Corporations are not People and Money is not Speech Working Group
………….( even if you are not near NYC )

http://www.nycga.net/groups/restore-democracy
http://groups.yahoo.com/group/NYCRDWG

join us even if you are not in the NY area
check out our comprehensive analysis of
the 17 existing proposed amendments
and our detailed historical timeline of corporate personhood


We can continue,

as a movement of demands
as a movement of declarations
as a movement of marches

OR


Are you ready
.....................FOR ACTION ?
Are you ready
.....................TO DO SOMETHING REAL ?
Are you ready
......................TO JOIN 83% OF YOUR FELLOW AMERICANS ?


We must not
DEMAND that we WANT THEM.to give to US
We must
DEMAND GOALS THAT WE WILL ACHIEVE FOR OURSELVES


Because of the Supreme Court's decision,
we cannot accomplish anything significant, without FIRST -

Overturning Citizens United !!!
Ending Corporate Personhood !!!


83% of Americans already agree on it
as stated in the ABC/Washington Post poll

.........................................

In the the PFAW Poll -

85% of voters say that corporations have too much influence over the political system today.
77% think Congress should support an amendment to limit the amount corporations can spend on elections.
74% say that they would be more likely to vote for a candidate for Congress who pledged to support a Constitutional Amendment limiting corporate spending in elections.


PLEASE COMMENT ON: MY "IDEAL - COMPREHENSIVE" AMENDMENT

Section 1 {A corporation is not a person and can be regulated}
The rights protected by the Constitution of the United States are the rights of natural persons { human beings } only. Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law. The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.

Section 2 { Money is not speech }
Federal, State and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, and may restrict all financing to “public financing” for the purpose of influencing in any way the election of any candidate for public office or any ballot measure. As above, all foreign contributions are forbidden.

Section 3 { Transparency & Disclosure }
Federal, State and local government shall require that any permissible contributions and expenditures be publicly disclosed less than 60 days after the transaction and before the election.

Section 4 { Voter Suppression }
Federal, State and local government shall not require any new forms of id for voting, beyond what was needed to register for previously registered voters. College photo-id ( including for out-of-state students ) must be acceptable. Federal, State and local government shall permit early voting for at least the 6 days before the election day.

Section 5 { Election Day & Registration }
Federal, State and local government may make election day a holiday. Federal, State and local government must allow simultaneous registration and voting on election day.

Section 6 { Eliminate the Electoral College – one man one vote } The electoral college is abolished and the President and Vice-President will be elected by popular vote. .

Section 7 { Eliminate the Filibuster } Unless specified in the Constitution , all voting in the House and Senate shall be based on a simple majority.

Section 8 Nothing contained in this amendment shall be construed to abridge the freedom of the press .

{NOTE: sections 4, 5, 6, 7 are not required to overturn CU – just my wish list }
COMMENTS ON THE ABOVE ARE VERY MUCH APPRECIATED


IT IS TIME FOR YOU TO ACT ----> JOIN US TO MAKE A DIFFERENCE


Our primary goal should be to pass a constitutional amendment to counter Supreme Court decision Citizens United (2010) , that enables unlimited amounts of anonymous money to flood into our political system.
We don’t have to explain or persuade people to accept our position – we only have to persuade them to ACT based on their own position. Pursuing this goal will prove to the world that we, at OWS, are a serious realistic Movement, with serious realistic goals. Achieving this goal will make virtually every other goal – jobs, taxes, infrastructure, Medicare – much easier to achieve –
by disarming our greatest enemy – GREED.


IT IS TIME FOR YOU TO ACT ----> JOIN US TO MAKE A DIFFERENCE


THE SUCCESS STORY OF THE AMENDING PROCESS The Prohibition movement started as a disjointed effort by conservative teetotalers who thought the consumption of alcohol was immoral. They ransacked saloons and garnered press coverage here and there for a few years. Then they began to gain support from the liberals because many considered alcohol partially responsible for spousal and child abuse, among other social ills. This odd alliance, after many years of failing to influence change consistently across jurisdictions, decided to concentrate on one issue nationally—a constitutional amendment. They pressured all politicians on every level to sign a pledge to support the amendment. Any who did not, they defeated easily at the ballot box since they controlled a huge number of liberal, and conservative and independent swing votes in every election. By being a single-issue constituency attacking from all sides of the political spectrum, they very quickly amassed enough votes (2/3) to pass the amendment in Congress. And, within just 17 months, they were successful in getting ¾ of the state legislatures to ratify the constitutional amendment into law. (Others were ratified even faster: Eight —took less than a year. The 26th, granting 18-year-olds the right to vote, took just three months and eight days.)


If they could tie the left and right into a success - WHY CAN'T WE ??????????


IT IS TIME FOR YOU TO ACT ----> JOIN US TO MAKE A DIFFERENCE


1
83% of Americans ( and 76% of the Rs ) have already opposed CU in
the ABC/Washington post poll and the above
IS THEIR POSITION ALREADY.
2
We don’t have to work to convince people on the validity of our position.
3
This Amendment { sections 1+2 }is REQUIRED to overturn CU.
And all other electoral reform can be passed through the normal legislative process. 4
OWS and the FORUM pages are chock full of ( mostly ) excellent ideas to improve our country.
All of them have strong advocates – and some have strong opposition.
None of them has been “pre-approved” by 83% of Americans !
Pursuing this goal – is exactly what Americans want.
What do we want? Look at that almost endless list of demands – goals - aims.
Tax the rich. End the Fed. Jobs for all, Medicare for all. So easy to state our demands! Can you imagine how hard it would be to formulate a “sales pitch” for any of these to convince your Republican friends to vote for any of them?
83% of Americans have ALREADY “voted” against CU. And 76% of the Rs did too.
All we have to do ask Americans is to pressure their representatives – by letters - emails – petitions.

Wanna take your family on vacation?
Convince the 7 year old and the 10 year old to go to Mt Rushmore.
Then try to convince them to go to Disneyland.
Prioritizing this goal will introduce us to the world – not as a bunch of hippie radical anarchist socialist commie rabblerousers – but as a responsible, mature movement that is fighting for what America wants.


IT IS TIME FOR YOU TO ACT ----> JOIN US TO MAKE A DIFFERENCE


I feel that using the tactics of the NRA, the AARP, the TP, the anti-SOPA – who all represent a minority – who have successfully used their voting power and political pressure to achieve their minority goals - plus the Prohibition Amendment tactics – bringing all sides together - is a straight path for us to success that cannot fail to enable us to create and complete one task that the MAJORITY want.

There are at least seventeen different Constitutional Amendments in the works.
Help us support these moves to get the money out of our political system.


Join the NYC OWS Corporations are not People and Money is not Speech Working Group
http://www.nycga.net/groups/restore-democracy
http://groups.yahoo.com/group/NYCRDWG
http://bit.ly/vK2pGI

regular meetings Wednesdays 6-8PM @ 60 Wall St – The Attrium


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[-] 2 points by pewestlake (947) from Brooklyn, NY 2 years ago

Bensdad, thanks for adding your thoughts to this post.

I think that amendment language is way too long and complicated to win 3/4 of the State legislatures. Two thirds of the Congress is hard enough.

It's also overkill. You're trying to do too much at once. The iron is hot for ending corporate personhood and money as speech. There's no groundswell to abolish the electoral college. And even if it is a great idea, it won't sell. You have to work within the realm of the possible. An amendment is tough enough on its own.

The language proposed by the working group Abolish Corporate Personhood Now (this post) is simple and process-oriented. It's also devastatingly effective in overturning 125 years of case law. It clips SCOTUS' wings better than complicated language that is better suited as legislation.

The constitution isn't the rules of the road, it's the road. The SCOTUS' rulings haven't repainted the lines, they've unpaved whole swaths of constitutional highway. An amendment repaves the road. Then its up to congress to repaint the lines. I hope that makes sense.

[-] 2 points by bensdad (8977) 2 years ago

Thanks - thats exactly the kind of feedback I am looking for.
I suspect it is too much.
Clearly #1 & #2 are what we need - mostly from move to amend
I'd really like to add #3

8 is required

check out our analysis of the 17 amendments at
http://groups.yahoo.com/group/NYCRDWG
can you get to 60 wall st to our wednesday meetings?
60 wall is a stop on the #2 train - directly into the building!

http://groups.yahoo.com/group/NYCRDWG

[-] 3 points by pewestlake (947) from Brooklyn, NY 2 years ago

Yes, this is precisely the kind of discussion people need to have before we start trying to push the entire country to sign onto something that may or may not work. And I'd love to drop by 60 Wall St to discuss this. I'm busy on Long Island next Wednesday until about 2pm. Back in Brooklyn around 3. If the meeting is later, I'm there. If not, the following week.

[-] 2 points by pewestlake (947) from Brooklyn, NY 2 years ago

Read this, not the trolls.

[-] 1 points by pewestlake (947) from Brooklyn, NY 2 years ago

THIS is what I'd rather be doing than arguing about Boomers. Too bad so many people would rather pitch a fit over semantics and go tete-a-tete with trolls. We can shout into the void all day long. At some point, REAL solutions have to be on the agenda or this is just another meaningless forum.

[-] 1 points by PandoraK (1678) 2 years ago

This I like. Sucks that I didn't catch it before, sometimes I miss stuff when it moves down the page, sometimes my internet server seems to think the speed of snails is broadband...sigh...

[-] 1 points by pewestlake (947) from Brooklyn, NY 2 years ago

Thanks. Truce. ;-)

[-] 1 points by PandoraK (1678) 2 years ago

It was a one sided war, I wasn't trying to argue. LOL

[-] 1 points by brightonsage (4494) 2 years ago

There are two "persons" identified in law. These are "natural-person" and "artificial-person". See Government Tricks for more details.

A natural-person is defined as "A human being that has the capacity for rights and duties". Note that the word capacity means the ability, but not the obligation for rights and duties.

An artificial-person is defined as "A legal entity, not a human being, recognized as a person in law to whom legal rights and duties may attach - e.g. a body corporate". Sometimes an artificial-person may be referred to as a CORPORATION, which is not always the same as an Incorporated Company. These subtle re-definitions are made in Statutes whenever the Government wants to change the meaning of the word.

There are many different types of artificial-persons, each with different duties. Here are a few different types of artificial-persons:

Taxpayer, Resident, Driver, Voter, Citizen, Homeowner, Officer.

I concur that we must sort out the type of person. I am concerned that, that may not be enough. I am not confident that any contemporary Congress would follow through and eliminate to corrosive effects of money. They have been schooled very well how to use corruption to their advantage. Public funded elections are one of the ways to stop the corruption. But I doubt Congress will ever implement it.

[-] 1 points by pewestlake (947) from Brooklyn, NY 2 years ago

All of that is true but none of it is in the constitution. Narrowing the definition of "person" to living human beings removes the foundation for using the 14th amendment to grant rights to legal fictions. It overturns 125 years of case law but it doesn't rewrite the code. That will be up to congress. There are no easy routes but if we start by brushing SCOTUS aside, we give the voters a chance to fill congress with better reps.

It's more important to redefine money as legal tender and restrict the SCOTUS from recognizing the spending of money as an expression of speech. That's what article 2 is for. Combined, they undermine all the rulings from Santa Clara to Buckley and CU. Again, they don't write new legislation but they do prevent SCOTUS from overruling campaign finance reform and restrictions on political spending by non-individuals.

Thanks for the thoughtful comment.

[-] 1 points by brightonsage (4494) 2 years ago

If all we get back to is McCain-Feingold it isn't good enough. Then there is the whole corrupt governance problem: jobs for family members, staff and Congress after service. stock tips, consulting contracts, etc. We have the same problems in the states. Then you have Thomas's wife on the take from the Koch's, Scalia appearance of corruption, no ethical standards like Circuit, Ct of Appeals, Dist. etc. There isn't just a little campaign finance problem here. It is much worse than that. Corruption is the fourth branch of gov't, and it has the trump cards.

[-] 2 points by pewestlake (947) from Brooklyn, NY 2 years ago

I don;t disagree with any of that but we have to start somewhere. The reason I'm starting with an amendment to redefine persons and money is because SCOTUS can sweep aside any legislation they like. That corruption is practically untouchable, except by constitutional fiat. If we want to wrest control of our democracy back from money interests, we'll need everyone on board, right, left and center. That's why the language my group is proposing is non-partisan and entirely process-oriented. If we keep framing the argument as one of reining in runaway power, it can gain traction on both sides of the aisle.

[-] -2 points by JesusDemocrat (193) 2 years ago

Oh, you want to amend the wrong document.

Ask Obama which one should truly be amended.

http://www.youtube.com/watch?v=JxYDnYgQ5MQ