Of Persons, Corporations, Money and Speech

These are the times that try men's souls. On the one hand we have the Supreme Court of the United States empowering corporations at a time when they already come far too close to owning our representatives, our government and our country. On the other, we have a populace that doesn't understand how our most fundamental principles tie to either this question or the trying of accused terrorists.

Someone MUST speak out about the nature of our Rights and our Constitution.

We seem to have forgotten the truths that our founding fathers took to be self-evident, the principles to which our nation was dedicated. Many on the left are decrying the recent Citizens United Supreme Court decision, while at the same time civil libertarians often thought to be on the left have spoken in defense of the decision. As it turns out the questions here are not simple, and to work them out requires really knowing both how the system works and what the underlying principles are. It's not easy stuff, and we seem unprepared for it.

Let me start by agreeing with those who fear undue influence and power is given to the corporations, domestic, foreign and multinational by this decision. This decision does, in fact, remove important safeguards against the super-rich corporations overwhelming our electoral process with huge amounts of money. Not only that, but it opens our government to the influence of foreign money and foreign-owned corporations. It's easy to sneer at that last accusation (one Supreme Court Justice did just that), claiming that the decision only applies to US corporations, but that ignores the fact that being incorporated in one of the United States is very different from being owned exclusively or mostly by US citizens. Citgo, for instance is incorporated in the US, but it is owned by Petróleos de Venezuela. It is a "US corporation", ye, but it is also an entirely "foreign owned corporation". If Citgo has a right of free speech that allows it to finance political campaigns in the US, then Hugo Chavez who runs the government of Venezuela, who owns PDV, who owns Citgo, has that right. Many people think that this is not a good thing.

But let me also say that people like Glenn Greenwald and Jonathan Turley also have a very real and valid point that the decision in Citizens United, which empowers Citgo, and PDV and Venezuela and Chavez is based on long standing principles of Constitutional law, law that has both important practical justifications and a basis in our most sacred principles. Greenwald has written on the topic at "What the Supreme Court got right" and "Follow-up on the Citizens United case". I recommend reading both, though I do not agree with everything that he wrote. Turley wrote a lengthy commentary in his blog and spoke about the topic on a segment of Countdown.

Greenwald makes the point that none of the nine Justices agree with those of us who argue that it is a problem that the law holds that corporations are people and that money is speech. On the latter he lays out a rather specific challenge. He says that if we are to claim that speech isn't money then we have to explain what will protect us from laws like the following (he gives several hypothetical examples, I'm using one for brevity):

"It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent;"

My own response is that this is absolutist rhetorical flummery, that if money is speech, you get into problems just as deep:

If money is speech, then the First Amendment must give me the right to pay my Congressman to take an action I wish him to, because I have the right to tell him what I want him to do.

Clearly I have a right to tell my representative what I want him to do. If I cannot, I have lost not only the right of free speech, but also the right to representation, which is definitionally inherent in a Republic. But that doesn't give me the right to put my money where my mouth is and pay him to vote my way. That's bribery and corruption.

In the end, I do not believe that either absolute extreme, that money is speech or that money has nothing to do with freedom of speech is tenable, but, and it is a big "but", but Constitutionally protected rights, natural rights tend to be absolutist. That is one of their strengths. "Congress shall make no law..." like "Thou shall commit no murder" (I hope you'll forgive my slightly non-traditional, but I believe accurate translation of the Commandment) is strong because it is a prohibition. once you get into qualifying them you start allowing loop holes and we all know where that gets you.

I think we need to recognize that Constitutionally protected rights are not an artifact of law, are not granted by the government, judges or the Founders, but are rather natural rights, with which we are endowed by our Creator, whatever you consider said Creator to be. Corporations, are NOT natural, though. They ARE social constructs, the product of law, goverment and the consensus of society. When we constitute them, when we incorporate them as entities within our legal system, I think we have to say that they have rights, but that those rights are not inherent, that they derive from the rights of the people they comprise, and who create the corporations. We endow the corporations with rights and we can limit them.

Similarly, money is a social construct and while there are certainly moral aspects to money and to its use, it is not, in and of itself, speech. It can be used to enable or discourage speech and can be used to violate the rights of others, or with deference to their rights or to empower people, ourselves or others with regard to their rights. "Money is speech, speech is protected, money is thus protected" is a nice syllogism. It is simple and understandable, it is easy to derive conclusions from it. But it is oversimplified.

Einstein was right. "Make everything as simple as possible. And no Simpler."

Where does that analysis get us? Certainly NOT to a Constitutional amendment. But, given that corporations are created by legislation, Why can't legislation explicitly limit and define the rights and obligations they have? And since corporations are primarily commercial in nature, why can't regulating them be a federal function? The state laws define and control corporations and the methods of incorporation, but in the name of regulating interstate commerce, cannot the federal government set certain limits on corporations and the laws that control them?

This ties in to a number of issues before us today:

1. The empowering of corporations on the grounds of free speech.
2. Regarding money as speech and thus giving the extremely rich a greater practical right to "speak".
3. The influence of foreign money through the free speech of US incorporated, foreign owned corporations.
4. The right of all US citizens and anyone in the US to habeas corpus and trial by jury.
5. "Getting FISA right" and the potential abuse of the USA PATRIOT Act.
6. A system which allows the government to try accused terrorists in whichever court they know they can convict them in.

For all of these, it is important to understand the nature of rights in US Constitutional principles. We need to ground these discussions not only in what makes us safe from terrorists or corporations or corruption, but in terms of the natural rights that all men are endowed with and which we the people do not allow our government to violate. Our fundamental, natural rights are not granted by the government, the King, or the Constitution, and understanding that, and the principles our whole system is based on is both important and sadly lacking in the discussion of a lot of these and other critical issues.

In Concord, Meditations and Realizations

This is the first in a series that I plan to post, capturing the thoughts and reflections that I have when I go to one of my favorite and most sacred places, the Old North Bridge in Concord, Massachusetts. For most of this new millennium, the bridge and its environs has been my church and my retreat, the place I go to pray, to think, to find my balance. It has been such for a number of reasons. First, it was the site of pivotal events which shaped history for the centuries to come, and which resonate with the events that move us most profoundly today. Second, it is a place where men laid down their lives for their country. Finally, as a piece of nature, the arching bridge over the flowing river reminds me of the miracle of nature and creation.

Each of these articles should be short and focus on one theme, one line of thought of the several that I focus on when I go to the bridge. My time there, my meditations on nature, life, death and sacrifice, my ponderings of the history made there and its place in the larger fabric of American life and history have provided me with what I regard as important lessons and reminders, and so I'd like to share those with others.

The first spot, and the last that I always visit there will be the focus of this first reflection. I expect that it will be shorter and perhaps simpler than most of those that follow. But, as with my visits, I hope it will set the groundwork, the initial tone, of my postings, just as visiting the spot itself sets the context for my visits.

The spot is the graves of two British soldiers who were killed at the bridge on April 19, 1775. For those who have not vsited the site, let me set the scene. The bridge is not far from Monument Road, and you approach it down a broad path between rows of high arching pine trees, trees intentionally planted there to create something of a cathedral in the pines atmosphere. The path leads straight to the obelisk monument, and off to the left, by the inevitable New England stone wall, there is a small chained off area, with two Union Jacks and a large inscribed stone. Usually, there are flowers on the graves. If the pines create a cathedral effect, the graves are a small chapel to the side. They are small and unremarkable, at least physically.

But in another way they are most remarkable. All over the world you can find war memorials, grave sites, and markers to the fallen dead of past wars. But here, without much fanfare is one of the most unique. It is a memorial to the Enemy's Honored Dead. Think of that. Not to our nation's fallen heroes, not to the local boys who gave their lives, but to the fallen enemies, to those who were seen as invaders and a threat to the town, to two of the first casualties of the American Revolutionary War, even though they were on the other side.

This unique memorial says a lot to me about who we are as a people. Many of my ancestors are Celts, Irishmen and Scots, people who are renowned for their abilities to keep a feud alive for years, and generations. And so it is the world over, where wars are often fought over slights and insults generations or centuries old. But here, in America, "the Great Melting Pot", historical enemies have learned to live side by side, to hang together lest we hang separately. The first permanent colonists in the Commonwealth, the Pilgrims and the Puritans, came here seeking not religious tolerance, but the freedom to, in the case of the Pilgrims, create a separate community run by their own strict principles or in the case of the Puritans, to purify the Anglican church, according to very similar principles. Names like "Cotton Mather" are not associated with tolerance.

A century and a half later, as the United States emerged, Americans had learned that Quakers, Catholics, Protestants, Jews and Deists all had to set apart their differences, to live and work side by side with those with whom they disagreed upon the most fundamental truths and principles, that if freedom, democracy and the rule of law were rule in place of the King as joint head of Church and State then differences and old grudges must be set aside. Not surprisingly, once the Revolution and its echo, the War of 1812 were past, we tended to see Great Britain and Canada as perhaps rivals, but not real enemies.

And so, 130 years ago, the British graves were protected by pillars and chains donated by an English ex-pat, and we honor their deaths, and their role in the founding of our nation. We lay flowers on their graves, and mark it with their flag, and write words that praise their bravery. And that, is something not often seen now or through history. It is a small thing, but one of many that make me proud to live in my Commonwealth and my country.

And as I look at our present day conflicts, I start with a prayer that we can understand those on the other side and those caught up in the middle as we have come to understand those whom we fought 232 years ago. In part, these two soldiers died in a conflict that had been growing inevitably for years, and in part they died due to misunderstandings and confusions that arose in the heat of the moment. They died as a result of the folly of their superiors, immediate and ultimate, and helped to start a struggle that led to the fall of their Empire. I pray, each visit, that we can learn from them; that we can avoid similar follies; that we do not plunge our great Republic into a similar decline from greatness.

I visit their graves with both pride and humility. Only a great people can afford to honor their fallen enemies, and great nations can fall through hubris and folly.

In future installments, I will deal with such topics as the parallels between the Battle of Concord and the War in Iraq, the Minutemen and the Geneva Convention, and Concord's relationship to the Second Amendment, any one if which is likely to be a bit more controversial than this piece.

Until then, be a Free Voice.
Cry, Liberty.
Vox Libertas