“. . . corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.”
~Supreme Court Justice Stevens, January 2010
Opponents to Move To Amend tend to avoid or not understand particular issues that are fundamental to debating the pros and cons. The following are three of the most central issues that come to mind. These combined are the Achille’s heel of the opposition. I have yet to see a strong argument that deals directly and fully with all three of these, especially not the first issue.
1) Move To Amend is promoting traditional constitutionalism and original intent. The proposed amendment is limited to one single issue. It clarifies the meaning of personhood to be limited to what the Founding Fathers meant by ‘persons’ when they wrote the Constitution.
Constitutional persons are different than legal persons. As such, constitutional rights are different than legal rights. In traditional constitutionalism, the rights of humans precede and trump all laws and all government. Whether or not one believes in natural rights, constitutional rights are declared as being inalienable rights. They aren’t given to us by government. They are our rights because we believe they are our rights, not because government tells us they are our rights.
Corporations, unlike constitutional rights, are inventions of government by definition and design. A corporation can’t have constitutional rights for the Constitution came before all government laws and creations. None of this says anything about the legal construction of corporations as fictional persons. It just means that legal personhood says nothing about Constitutional personhood.
They are simply two separate issues. But the opponents of Move To Amend often conflate the two, either because of confused thinking or for intentional obfuscation.
2) Studies have shown that money influences politics.
Obviously, more money means more influence and unlimited money potentially means unlimited influence. The opponents of Move To Amend will point to some particular election in order to say that this particular candidate spent a bunch of money and yet still lost, but this is cherrypicking data. When all elections are looked at, the pattern becomes clear. In most cases, the candidate that gets the most money wins.
Money isn’t speech. The Founders never intended money to be speech and would have found the concept absurd. It’s just a way of trying to extend a constitutional right to corporations, but the Founders never intended corporations to have constitutional rights. It makes no more sense to say that corporations have a right to free speech than to say that corporations have a right to vote or a right to pursue happiness.
Only natural persons can do those things.
3) The unlimited spending allowed by Citizens United is extremely unpopular among the American public. Move To Amend, however, is extremely popular.
It isn’t just popular among one single group, as the opponents would like to portray. This isn’t an agenda of liberals or of the Democratic Party. Move To Amend bills have been passed all across the country, including in conservative places (e.g., Utah). This is an issue that cuts across the political spectrum. It is true populism.
In a democracy, it is hard to get around the public seeing something as fundamentally undemocratic. It’s a strange notion that a moneyed and political elite should tell the democratic public what democracy means. The American people genuinely want self-governance. That is what the Founders wanted as well.
This goes back to original intent. It is something that has always concerned Americans, as our country was intentionally founded with specific ideals. We know the reasons the American Revolution was fought and we know the debates involved in forming a new country. The first action was to declare independence and the second action was to create a constitution, a declaration of purpose for our society.
We don’t have to speculate about this. We can go back so as to read the words of the Founders and understand the context of events. There are many aspects of original intent that can be fairly debated and upon which honest disagreement can be had, but constitutional personhood for corporations is not one of them.
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The following are links to some videos of debates, some defenses, and some criticisms.
The debates are particularly significant, especially the second link down. My purpose for writing this post was specifically to assess the opposition and their arguments against Move To Amend. If you listen to the debates, keep my three points in mind. Listen for what isn’t being said and is being talked around.