You don’t have to be a rabid strict constructionist; you don’t have to believe that the wealthy, slave-owning, colonial “founding fathers” were invariably righteous and wise; you don’t have to believe that each word of the Constitution is sacrosanct and infallible; in order to be able to credibly refer to the actual text of the U.S. Constitution, and thus shed useful light on a question of Constitutional law that is terribly important to all of us.
But the Legal Director of the Wisconsin ACLU apparently believes that is so. He curtly dismissed an argument (based on the text of the Constitution itself) that corporations do not legitimately have the Constitutional rights of a “person”. He did so without reference to, indeed without considering a word of the argument itself. Instead, he denied the validity of any argument that is based upon a document that (as he asserted) was written long ago by flawed individuals, and thus could not foresee the future, nor benefit from the superior wisdom of future generations of certified professional Americans such as himself. He was unwilling or unable to even consider looking at the U.S. Constitution itself, if that look might undermine his claim that corporations have Constitutional rights. I wonder whether his claim may be privately at least partly based on his own interest in his own career. Publicly, his claim appears to be based on the Gorgon’s knot of case law as it has been taught to him and to so many others. However, case law, and assertions of alleged “legal precedence”, must, from time to time, be closely examined in light of two higher standards: (a) the standard of what the Constitution itself actually says, and (b) the standard of what’s right versus what’s wrong. In this essay, I am not even delving into that second standard – though it too supports this proof. At this point, I am simply looking into what the Constitution itself actually says *. The Constitution is NOT merely what judges or lawyers say that it is. The U.S. Constitution is what it is, and it says what it says. And sometimes that really matters. This is one of those times.
There is a reason that judges are required to swear an oath to uphold and defend the Constitution of the United States. The Constitution is the standard that they are obligated to meet. And judges, like other public officials, may fail, or refuse to adhere to and comply with that standard – but they may not do so without violating their oath and the Constitution. It comes down to this: Judges cannot legally change the Constitution. They are expected, by the people, and by the Constitution itself, to uphold it, regardless of whether people before them have blatantly violated it. The U.S. Constitution can only be changed using the Amendment process that is described in Article V. Otherwise, everything is up for grabs, and we the people don’t have unalienable rights or a founding document. If the Constitution itself is up for grabs, then we only have a pretense, a myth, a sham, a lie – and we will certainly lose our rights and our country to those who are powerful and ruthless and devious enough to grab them.
This highly placed legal professional actually declared (as smoothly as only a trained lawyer can do) his absolute certainty that such an important word as “person” can have different, conflicting meanings (without even being explicitly re-defined) from one clause to another, from one sentence to another, from one Article to another, in the U.S. Constitution. In his legal mind, the word “person” – or any word, for that matter – has whatever definition the current “decider” finds convenient. As he sees things, in one clause the word “person” means a corporation, but in the very next clause or sentence, the same word “person” means nothing more and nothing less than a living, breathing human being. (The second and the third sentences of the 14th Amendment illustrate how perfectly wrong is this theory.)
It is both legitimate and important to ask, “What is a ‘person’ and what is NOT a ‘person’, in the meaning of the U.S. Constitution”* What do you think? In the Constitution as it was originally ratified, is a human infant a “person”? Is a human that owns land a “person”? Is a female human a “person”? Is a slave or an Indian a Constitutional “person”? Is an embryo or a fetus a Constitutional “person”? Is an unemployed, homeless alleged criminal born in another country a “person”? Is a corporation a “person”? Is a government agency a “person”? Is a cow, a factory, a laboratory, or a book a “person”? Is the Constitutional meaning of “person” different now than it was in 1790? The theory that ‘whatever’ a powerful force wants to endow with the Constitutional rights of a “person”, can therefore become a “person”, is nonsense. When such a theory is put into practice, the Constitution is rendered indeterminate, and Constitutional rights become subject to a scrum, face off, or jump ball at any time. We the people must insist that the Constitutional meaning of such an important, fundamental word as “person” does not change – without warning or a clue – from one year to another, or from one sentence to another.
The Wisconsin ACLU Legal Director revealed those two items of outrageous legal opinion in one short impromptu face-to-face personal interview with the author following a November 2015 presentation he made to the Milwaukee League of Women Voters on the subject, “Money in Politics”. But the remarkable sad truth is that his opinion on these two points is actually widely shared by too many academics and legal professionals, as articles of faith – a faith which defies rationality, and which undermines government that is of, by, and for the people.
The interview came to an abrupt end when I inquired about corporate funding provided to the ACLU and inquired whether disclosure of such funding would have helped listeners put the Legal Director’s presentation about “Money in Politics” into appropriate context. He immediately and indignantly demanded that I answer whether I was calling him “corrupt”, and his parting comment characterized me as “paranoid”. And that’s exactly the kind of defensiveness and slander that far too many legislators, judges, public officials, politicians, lawyers as well as academics and other professionals with an ax to grind, will throw at you, whenever you try to ‘follow the money’ – especially the corporate money – in order to comprehend the motivation for the strange things that they say and do.
Would you like to see the proof that was ignored and shunned by this “liberal” legal professional who had just been misleading and distracting a large audience of concerned citizens? That proof, provided entirely by the U.S. Constitution itself – specifically, seven sentences in the Constitution – that corporations most certainly are NOT legitimately “persons” in the meaning of the U.S. Constitution*, is explained in a narrative containing about 670 words (not including the appendix, which ID’s and quotes the sentences). You’ll find it posted on “Hearts and Minds”.
[Answers to the ten “yes” or “no” questions in the first paragraph on this (second) page of this essay:
yes, yes, yes, yes, no, yes, no, no, no, no. Ever since 1790, as defined by, and in careful conformance and compliance with the U.S. Constitution, a “person” is nothing more and nothing less than a human being that has been born but that has not yet died. The U.S. Constitution refers to an artificial legal entity (such as a corporation) as a “Party”, never as a “Person”. From the day the U.S. Constitution was ratified, slaves and their descendants, and also women, have been “persons”, and “persons” have always had certain Constitutional rights. Those rights were blatantly and illegitimately denied to both women and slaves by those – including supreme Court judges – who failed and/or refused to uphold the Constitution.]
Revised in October, 2016