Below is my column in the Washington Post (Sunday) on our recent victory in the Sister Wives case. The column looks at the most significant aspect of the case — the rejection of morality codes that once controlled across the country in prohibiting everything from homosexuality to adultery to fornication. These morality laws were upheld in the decision in Reynolds in 1876 in a polygamy case out of Utah. The Brown decision returned us to the same question involving the same issue in the same state. Some 136 years later however the answer from this federal court was very different. We are a different country today and, despite what one hears from politicians like Rick Santorum, I believe that we are a better country today.
There does seem to be confusion about the ruling with some saying that polygamy is still not legal after the opinion. That is simply wrong. Polygamy is not the same a bigamy. One is the crime defined under cohabitation statutes of living as a plural family or with a person married to another person. The other is the crime of having two or more marriage licenses. The latter has nothing to do with the structure of your family and has almost exclusively involved people who hold themselves out (falsely) as monogamous. We always argued that the state could prosecute people who obtained more than one marriage license. Bigamy has not been an offense committed by polygamists who traditionally have one official marriage license and multiple spiritual licenses. Indeed, the law targeted polygamy with the cohabitation provision precisely because there is a difference between the two. The state fought for years to preserve this law because it reached beyond simple bigamy. Before this opinion, it was a crime for polygamists to live, as do the Browns, in a plural family. After the opinion, it is legal. This is precisely what occurred in Lawrence v. Texas where homosexual unions were a crime but then became legal when the Texas law was struck down. This decision legalizes tens of thousands of polygamous families who will no longer been viewed as criminal enterprises. They will be allowed to be open plural families. They are now legal relationships. Legality of polygamy is entirely different from recognition of plural marriages just as the legality of homosexual relations is different from the recognition of same-sex marriage.
There is also a lack of knowledge about the existence of such laws outside of Utah. This law does exist outside of Utah. Indeed, the very same language is found in the Canadian cohabitation law. I was called as a legal expert in the recent challenge to that law. However, the Canadian Supreme Court in British Columbia upheld the law. Putting these distinctions aside, the thrust of this article is how this decision is part of a larger trend toward the repeal or the striking down of morality codes, including the rejection of a cohabitation law in Virginia this year.
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The decision this month by a federal court striking down the criminalization of polygamy in Utah was met with a mix of rejoicing and rage. What was an emancipating decision for thousands of plural families was denounced as the final descent into a moral abyss by others.
Former senator Rick Santorum was among the social conservatives trying to claim the moral high ground. He tweeted on Sunday: “Some times I hate it when what I predict comes true” — referring to his 2003 claim that legalizing “consensual sex within your home” would lead to the legalization of polygamy and “undermine the fabric of our society.” (On Wednesday, with no apparent sense of self-contradiction, he expressed outrage over the removal of a Nativity scene at a South Carolina military base, tweeting: “Our Constitution protects free exercise of religion. No govt entity/official has the right to limit that.”)It’s true that the Utah ruling is one of the latest examples of a national trend away from laws that impose a moral code. There is a difference, however, between the demise of morality laws and the demise of morality. This distinction appears to escape social conservatives nostalgic for a time when the government dictated whom you could live with or sleep with. But the rejection of moral codes is no more a rejection of morality than the rejection of speech codes is a rejection of free speech. Our morality laws are falling, and we are a better nation for it.
In the Utah case, I was the lead counsel for the Browns, the polygamous family featured in the TLC reality program “Sister Wives.” They are members of the Apostolic United Brethren Church, and they have one marriage license and three “spiritual” marriages among them. After the first episode of “Sister Wives” aired, state prosecutors threatened to bring charges under a Utah law that made it a crime when a married person “purports to marry another person or cohabits with another person.” The Browns were under investigation for two years and were publicly called felons before they took prosecutors to court in a challenge to the constitutionality of the law.
The case was never about the recognition of multiple marriages or the acceptance of the religious values underlying this plural family. It was about the right of consenting adults to make decisions for themselves and their families. Judge Clark Waddoups, a conservative George W. Bush appointee,ruled that the criminalization of cohabitation clearly violated the due process clause and the free exercise clause of the United States Constitution.
In doing so, he departed from the prevailing precedent: the Supreme Court’s opinion inReynolds v. United States , which upheld a ban on polygamy in 1879. Waddoups wrote that courts today are “less inclined to allow majoritarian coercion of unpopular or disliked minority groups, especially when blatant racism . . . religious prejudice, or some other constitutionally suspect motivation, can be discovered behind such legislation.”
Indeed, in Reynolds, religious and racial prejudice were vividly on display. The court unleashed a tirade of indignation and condemnation, stating, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” Just a few years later, the Supreme Court also upheld the criminalization of mixed-race relations in Pace v. Alabama .
The idea that polygamy was a “barbarous practice” and contrary to democratic principles drove the demand in the late 1880s and ’90s that Utah outlaw it as a condition of statehood. And in Mormon Church v. United States (1890), the Supreme Court labeled polygamy as “abhorrent to the sentiments and feelings of the civilized world.”
The stigma attached to polygamy continued to distort legal analysis into this century. As recently as 2006, Utah Justice Ronald Nehring began his opinion in a ruling upholding the criminalization of polygamy by lamenting, “No matter how widely known the natural wonders of Utah may become, no matter the extent that our citizens earn acclaim for their achievements, in the public mind Utah will forever be shackled to the practice of polygamy.” Nehring frankly admitted that this hostility “has been present in my consciousness, and I suspect has been a brooding presence . . . in the minds of my colleagues, from the moment we opened the parties’ briefs.” Rather than overcome that prejudice, Nehring not only yielded to it but warned any Utah judge of the peril of being the first to recognize the rights of polygamists: “I have not been alone in speculating what the consequences might be were the highest court in the State of Utah the first in the nation to proclaim that polygamy enjoys constitutional protection.”
Well, it wasn’t. A federal judge in Utah assumed that burden. Gov. Gary Herbert objected to the court making “decisions on social issues.” (He has not yet announced an appeal.) Waddoups, however, was not dictating a decision on a social issue but rather saying that governments could not impose a single version of morality. He limited prosecution under Utah’s anti-polygamy law to cases of bigamy, where someone acquires more than one marriage license — which is an offense more common to monogamous couples, who care about state recognition, than polygamists, who care about spiritual recognition.
Across the country, the era of morality codes is coming to an inglorious end. This year, the Supreme Court struck down part of the Defense of Marriage Act barring the federal recognition of same-sex marriage. And this week, the New Mexico Supreme Court and another federal judge in Utah struck down the ban on same-sex marriage in those states — bringing the number to 18 states (plus the District of Columbia) where same-sex couples can marry. Meanwhile, Virginia recently repealed its 1877 cohabitation law and Colorado replealed a criminal adultery law from the 1850s — both relics of a time when states used their criminal codes to force citizens to comply with the religious values of their neighbors.
Most states have wisely turned away from absurd laws criminalizing masturbation and fornication. Obscenity laws have also been curtailed by the Supreme Court in deference to the First Amendment.
Still rightly on the books are laws against bestiality, which involves an obvious lack of consent as well as manifest harm. Likewise, incest bans are based on claims of medical, not moral, harm.
Once any crimes or abuses are stripped away in cases like the Browns’, what remains is religious animus. Yet, polygamy is widely practiced around the world by millions of families and was condoned by every major religion — from Judaism to Christianity to Islam — at one time. While plural families are called polygamists in our popular lexicon, “polygamy” actually refers to a broad array of plural relationships, from polygyny (one husband and multiple wives, like the Browns) to polyandry (a single wife and multiple husbands) to polyamory (couples who reject the exclusivity of sexual relations). The vast majority of these families are based on consenting relations among adults without abusive or criminal histories.
Critics often ignore these other plural relationships (and even polygynists like the Browns) in favor of a stereotype of “compound polygamists,” living in remote walled communities where women appear captive and molestation flourishes. It is Warren Jeffs, not Kody Brown, whom critics want to invoke in debating decriminalization — a sinister figure in a secluded compound where women wear prairie outfits and hairdos from the 19th century.
Obviously, there will always be abusers like Jeffs among polygamists — just as there are abusers among monogamists. However, it is no more persuasive to criminalize all plural relationships because of a small number of abusive individuals than it would be logical to outlaw monogamy based on the convicted spouse- and child-abusers in conventional marriages.
One of the great ironies about the focus on compound polygamists is the circular logic of criminalization. The government first declared polygamists felons and then pointed to their hiding as evidence of their guilt. But decriminalization will allow these families to be plural, open and law-abiding as they reintegrate into society.
In truth, 19th-century Americans were no more moral than we are today. It simply appeared that way with the imposition of official morals, including (as Santorum recalls so fondly) being told whom we could love in our own homes. It is not a single moral voice that is heard today but a chorus of voices. Each speaks to its own values but joins around a common article of faith: the belief that morality is better left to parents than to politicians.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and lead counsel in the “Sister Wives” polygamy case.
Washington Post (Sunday) December 22, 2013
David,
You can try to distract that the issue is the corrosive effect expanding corporate personality is having on our electoral and legislative processes all you like with your gibbering nonsense about “corporations are people because they are groups of people”. No. They’re not.
Corporate personality? Is a legal fiction. It’s part of the charter; a document that wholly and totally derives its power from the state. Is there some part of “fiction” that eludes you? Apparently. A legal fiction is an assumption that something occurred or someone or something exists which, in fact, is not the case, but that is made in the law to enable a court to equitably resolve a matter before it. A corporation is only a “person” insofar as the law applies to it, it can contract, and the courts can engage their claims. It is not a person because people work for one.
Corporations are not a real person. Never have been. Never will be unless your boys the Kochs gets their way.
Repeating falsehoods and mischaracterizations does not make them any truer. It makes them repetitious. Factually wrong is still factually wrong.
It does say a lot about your methodology though.
Gene H wrote: “Corporate personality? Is a legal fiction. It’s part of the charter; a document that wholly and totally derives its power from the state.”
This is yet another legal misconception on your part. The corporate charter is not written by the state. It is written by the people, and therefore its power comes from the people forming the corporation. It is the people who specify who makes up the corporation, what the powers and goals of the corporation are, and how decisions are to be made. The state simply receives the charter, accepts the tax paid to incorporate, and accepts or denies the charter (and they almost always accept it). Some power is granted by the state, but to say that the charter “wholly and totally derives its power from the state” is pure fiction.
In fact, many associations may exist without any incorporation whatsoever, in which case nothing is even sent to the state. Their charter is simply kept by the association. The incorporation process is mostly a formality whereby the association simply says to the state, “here we are, here is the name we will use in the community to identify ourselves, and here is what we are going to do, and we would like to fall under the laws that apply to corporations.” From a libertarian perspective, you might say that corporations simply perform the courtesy of letting the state know about them and their activities.
Skip: Feel free to stay out of the comments section.
Do not apostrophize “it’s”, that is a shortened form of “it is” or “it has”. The possessive form of the pronoun “it” is just “its” without an apostrophe.
Progress is not defined as letting wrong and bad ideas be accepted without challenge. If you’re not making any progress? Get better more truthful ideas.
What Gene said about corporations. When a corporation can make its First Communion or Confirmation, or Bar Mitzvah, then they can be considered as persons.
rafflaw wrote: “When a corporation can make its First Communion or Confirmation, or Bar Mitzvah, then they can be considered as persons.”
I hate to break this news to you, but there are many people who do not participate in these religious rituals. I think the person behind the moniker Tony C is one of them. Are you going to start arguing that he doesn’t qualify as a person in your eyes until he does?
“From a legal standpoint, corporations are people.”
No. They are not. A corporation is a legal fiction created by government charter. It is no more a person than an umbrella stand is a person. It is a fiction created originally for two express purposes: to allow for investment and to limit liability of an endeavor that has perpetuity unbound by the life of any single proprietor. A corporation is incapable of having morals. Morals are an individual subjective chosen value. A corporation can only be judged by objective ethical standards by how they operate in action. Just so, a corporation is a tool. It can no more “have a religion” than a hammer. It is a means to an end to allow people – in the case of a religious organization – to hold assets and enter into contracts without incurring personal liability for the the transactions of that corporation itself. For example, my uncle is a pastor. His church is incorporated. As such, it buys property and enters into contracts. However, if the Church owned property and someone was injured on it, the liability would only extend to church property for recovery purposes and not to my uncle’s private property. If my uncle were to die, the corporation’s perpetuity would allow the organization to continue providing services to the community and select a new leader, the corporations assets unbound to my uncle’s estate.
Corporations are not people.
That is wrong as a matter of legal fact.
Treating them as such is a poor understanding of the both the function and form of the legal fiction and a claim to give something with limited liability and effective immortality rights equal (or in fact superior by the merit that corporations enjoy said limited liability and can “afford more free speech” than all but the fewest wealthiest individuals in the age of mass media) than natural human citizens.
That? Is a recipe for tyranny. Corporate personality was never intended to be equal to a natural person. It was limited and it was narrowly limited to allow only the aspects of person required to do business and avail the courts. Corporations – in themselves – have no free speech rights that we as a society don’t allow them to have. They have no other rights that we as a society don’t allow them to have. Corporations have no rights but those created by charter. And that? Is a purely a policy decision. Rights are inherent to human beings and human beings only under the law. The Bill of Rights only applies to humans. If we as a society decided tomorrow that corporations have no right to avail the courts? They’d be SOL. If we decided tomorrow that all advertising was illegal? They’d have to rely on word of mouth to acquire customers.
Only a corporatist/fascist or someone completely ignorant of the legal theory behind the corporate form would assert a corporation is a person, although those states of mind need not be mutually exclusive.
Gene H wrote: “Corporations are not people. That is wrong as a matter of legal fact.”
No it’s not. The legal fact is that judicial review has regarded corporations as a “person” in regards to the part of the Fourteenth Amendment which says: “No state shall deny to any person within its jurisdiction the equal protection of the laws.” Are you denying this fact?
Now I’m not trying to claim that there is not any difference whatsoever between a corporation and a single distinct person. Notice that I say a corporation is people not a corporation is a person. I don’t expect a corporation to have the right to run for public office because a corporation is a group of people and not a single person. Nevertheless, in regards to law, the law often designates a person and such a law often equally applies to corporations and other associations.
For example, in the definitions of Title 1 of the United States Code, it says:
“the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;”
http://www.law.cornell.edu/uscode/text/1/1
DavidM says: if the right to vote is affirmed, then the people who are part of a corporation maintain that right to vote. They do not get an additional vote just because they associate together in a corporation.
And by that same logic, the people who are part of a corporation maintain their right to free speech and political involvement, they should not get any additional free speech or political involvement because they associate together.
DavidM says: From a legal standpoint, corporations are people. Without people, the corporations would never exist.
We are arguing whether that should be so, not whether it is so. Without people airplanes would not exist, that doesn’t make airplanes people. A corporation is a machine. The humans that operate the machine have rights, that does not give the machine rights. If the machine can kill people, like a machine gun, that may reflect the morals and values of the people operating it, but so what? It does not give the gun Rights.
The rest of your drivel is anthropomorphizing a machine. There are no selfish corporations, there are selfish operators; there are no malevolent corporations, there are malevolent operators. The corporation is a robot, it may look to YOU like the robot is behaving badly, but (in our corporations) there is a person inside it making the decisions to behave badly. The corporation is not a person, any more than a puppet is a person.
As for churches and charities they ARE corporations in order to conduct commerce and be protected from liability. It is not commerce for profit, necessarily, but to enter into contracts, own property, collect money or donations and so on. Those corporations are also machines and puppets of operators, the corporations are not people with beliefs.
Tony C wrote: “And by that same logic, the people who are part of a corporation maintain their right to free speech and political involvement, they should not get any additional free speech or political involvement because they associate together.”
Actually, they don’t necessarily get “additional” free speech. I have spoken before city councils and county commissioners before. If I speak as representative of a group, I get 5 minutes instead of 3 minutes, but if I am representing 50 people in the corporation, that means my speech has been consolidated and narrowed. Instead of 50 people each speaking for a total of 150 minutes, I speak once for only 5 minutes. In this situation, the speech is more limited by being expressed through the corporate form. However, where the corporation helps is that if the individuals each cannot print a pamphlet or speak on television, as a group they might be able to accomplish that. It is not that the corporation gives them additional speech, but should be thought of more like how a microphone amplifies the voice. The point is that the people speak their mind through the vehicle of the corporation.
Tony C wrote: “Without people airplanes would not exist, that doesn’t make airplanes people.”
It is not a fair analogy because the corporation continues to express the mind and heart of the people it represents, whereas the airplane is something produced by the corporation. Once the people leave the corporation, it does not continue to exist like the airplane does. The corporation has no existence without the people because the corporation is people. A corporation is an expression of the people comprising the corporation.
Tony C wrote: “The corporation is not a person, any more than a puppet is a person.”
A puppet cannot hire people, contract for work, sue people, or do a number of things that corporations do. A puppet does not design spacecraft and aircraft. Corporations do that. Corporations invent new energy efficient forms of transportation. Corporations invent new computers and market new designs in fashion and art. Corporations open up and run restaurants and museums. Corporations do these things because corporations are people working together toward a shared goal.
bigfatmike:
if government wanted to shut down Exxon Mobil it could tomorrow.
Corporations do not have that sort of power.
BFM: Our posts crossed in the ether. You expressed my thoughts as well.
DavidM:
You are right, progressives need a living Constitution to destroy individual liberty. In fact that has been their goal over the last 125 years. Gut the Constitution so that it can be anything they want it to be.
Obamacare is not constitutional, social security is not constitutional and many other progressive schemes are not as well if one respects the original tenets and philosophy on which our Constitution is based. It is why they are so hell bent on putting the right kind of judges in place. They use precedent, usually crafted to undermine the founding ideals, to allow for the gradual reversal of our liberty, to change the document one little piece at a time. They erode our liberty like the wind and water dissolve the hardest stone when there is no protection from the elements.
Progressives made sure there would be no protection by being in charge of the education of our children, the future advocates, most living now went to school and law school in the latter part of the 20th century; taught by progressives, they imbibed disdain for our founding and our founding documents with an associated willingness to deprecate liberty.
Progressives dont care what Madison or Jefferson or Adams or George Mason wrote or thought, they dont care about individual rights or freedom, they only care about corrupting the Constitution so they have free reign to do whatever they want to bring forth their malignant vision of Utopia.
Progressives were trained by Sidney and Beatrice Webb, John Rawls and Maynard Keynes, not by Algernon Sydney, John Locke, Aristotle and Bastiat.
DavidM says: A corporation is an association of people authorized to act as a single entity.
No, you forgot some qualifiers. It is authorized to act as a single entity for a specific purpose, namely conducting business, entering into contracts, shouldering liability, and otherwise engaging in commerce.
Commerce is NOT all that defines people. People have a right to life, a corporation should not. People have a right to vote, corporations should not. People have emotions, religion, beliefs, political opinions and physical needs (like health care or food or shelter) that corporations do not; only actual humans can believe in God. A corporation is a machine with human operators. An airplane does not believe in God even if its owner or pilot or passengers do. Corporations are not people.
Tony C wrote: “No, you forgot some qualifiers. It is authorized to act as a single entity for a specific purpose, namely conducting business, entering into contracts, shouldering liability, and otherwise engaging in commerce.”
A corporation does not have to engage in commerce. A corporation can be a non-profit charity. A corporation can be a church.
Tony C wrote: “Commerce is NOT all that defines people. People have a right to life, a corporation should not.”
The people making up the corporation have a right to life.
Tony C wrote: “People have a right to vote, corporations should not.”
I do not believe in the right to vote, but in any case, if the right to vote is affirmed, then the people who are part of a corporation maintain that right to vote. They do not get an additional vote just because they associate together in a corporation. However, they might pool resources to educate people about their values and thereby influence elections.
Tony C wrote: “People have emotions, religion, beliefs, political opinions and physical needs (like health care or food or shelter) that corporations do not;”
But corporations do reflect all of these aspects of the people who are part of the corporation. If the corporation is formed to further a religious ideology, that corporation takes on the religious sentiments of the people who make it up. If a corporation is formed to promote atheism, then the corporation takes on those characteristics of atheism, reflecting the people who make up the corporation. If the corporation is formed to provide better healthcare for people in society, it will reflect that desire and action in everything associated with it.
Tony C wrote: “only actual humans can believe in God.”
But people who believe in God can form a corporation to function collectively as a church. The corporation manifests the faith of the people who make it up, buying a building perhaps with a steeple and cross out front to further the declaration of the faith of the people who make up the corporation. Indeed, the identify of a people of faith might be made known to the community by the corporation much more effectively than by the individuals who make it up. For example, if their corporate headquarters is a clearly marked building on a busy highway, and if their corporation holds religious meetings for worship, and the corporation creates television shows and publishes books, etc.
Tony C wrote: “A corporation is a machine with human operators. An airplane does not believe in God even if its owner or pilot or passengers do. Corporations are not people.”
From a legal standpoint, corporations are people. Without people, the corporations would never exist. Corporations are an association of people, and as such, the corporations reflect the morals and values of the people who make it up. There can be good corporations, benevolent corporations, and enthusiastic corporations that help society, or there can be bad corporations, selfish corporations, and malevolent corporations that hurt society.
DavidM says: In the first case, you make corporations in charge of government,
In the first case, I say that corporations have corrupted our government and as a result they are illegally in control of what our government approves and does not approve.
DavidM says: whereas in the second case you make government in charge of corporations.
Whereas in the second case I am talking about how Government should act and behave, and saying that ideally Government, as a representative of the majority of citizens, should be completely in charge of what corporations are and are not allowed to do, by passing laws by majority vote.
DavidM says: This does not result from me “cherry picking factors of the existing government” and then attributing them as flaws
Yes it does. The existing factor is corruption of government by corporations, which is certainly not the intent of the founders, they did not found a government that they expected to implement the will of the highest bidder. I think they believed in rule by a majority of votes, not a majority of dollars.
So effectively you are claiming that my assertion that our current government is corrupt, and that ideally government would not be corrupt, are contradictory. They are not contradictory at all.
Now, I think a sixth grader can understand that, even if you are too obtuse to understand it, or too much of a liar to admit it.
Tony C wrote: “Whereas in the second case I am talking about how Government should act and behave, and saying that ideally Government, as a representative of the majority of citizens, should be completely in charge of what corporations are and are not allowed to do, by passing laws by majority vote.”
My first reaction is to say, Thank You! for the clarification. However, upon reflection, that does not sound like what was being said. Granted most of the argument was by Gene, with you later expressing agreement, but for the most part it was argued that government creates the corporation and all rights by which the corporation operates, and that the corporation can’t do anything without government allowing it. I will have to go back and review the posts in light of what you are saying here, as an ideal of what should exist rather than what does exist. That might not be right away because I have other things going on right now.
” You made a pretty hyperbolic statement, namely: “I don’t think they [Congress] will approve a law that truly constrains anything they [corporations] want to do.” At the same time, you were expressing agreement that corporations have no rights but rather are subject to whatever government determines them to have. In the first case, you make corporations in charge of government, whereas in the second case you make government in charge of corporations. ”
The claim is that corporations have no rights which seems to imply that government ultimately has power over corporations. That claim is tempered by the observations that corporations do have influence with which they can mitigate or perhaps completely avoid government power.
What, exactly is contradictory about two propositions 1) government has power which can be used to control corporations 2) corporations have influence which can be used to avoid government control and regulation.
If there is a logical contradiction in those two propositions I need a little help seeing it.
Anybody, anybody at all???
BigFatMike wrote: “What, exactly is contradictory about two propositions 1) government has power which can be used to control corporations 2) corporations have influence which can be used to avoid government control and regulation.”
You changed the propositions. For number 1), it was not just that government has power to control corporations, but that corporations have no rights at all and are basically “ficitious” entities created by government and do only that which government dictates. For number 2), it was not just that corporations have influence, but that their influence is so great that government would not pass any laws except those which corporations dictated to be passed. The quote I get this form is: “I don’t think they [Congress] will approve a law that truly constrains anything they [corporations] want to do.”
It is the hyperbolic nature of the statements that makes them seemingly unable to co-exist at the same time.
Skip says: I specially placed a misleading assertion in my posts …
I think that is a lie, and you are a liar.
Skip says: Time to take the binders off Tony C.
You mean “blinders.” Learn what words mean, Skip, otherwise you look like an idiot.
Skip says: …but they cannot extend rights they do not have as individuals.
Of course they can. For example, they can authorize both the use of force by professionals, such as police and soldiers, and that the decision to use force can be authorized only by statute or by constituted authorities like courts, judges, juries, or Congress.
No person has a Right to be judge, jury, and executioner; in my view even in a “state of nature” that is not a Right but a simple murder.
Skip says: Socialists, Communist and Fascist believe group privileges/rights are legally superior to individual rights.
Using your definition, which is a false definition, you obviously think that is true. But you do not have any Right to label what I believe and falsely characterize it, that is lying about my thoughts and beliefs. My beliefs do not FIT your definitions. Stop lying about me.
Skip says: Libertarians believe that individual rights are superior to group “rights’.
Groups do not have Rights. Only Individuals have Rights, which are granted, protected, and honored by Society, or they have no meaning as “Rights.” If the majority of Society decides to formally declare some behavior criminal and punishable, then it is not a Right, and even if you believe it should be your Right, Society is not going to honor it, or refrain from punishing you for it, so what good is it for you to call it a Right? Will that comfort you while you spend your life in prison? Will it give you some last words to shout before the hood goes over your head?
Skip says: Your arguments are ethical depraved and why they are wrong.
No they aren’t. Your arguments are infantile, and unworkable, and reek of brutality and a sneering disregard for the well-being of your fellow humans; that you would cast into slavery and misery for your own selfish comfort.
I cite Citizens specifically as a bit of massively flawed bit logic and legal reasoning based on both the fundamental nature of rights and the construct of the basic and fundamental legal fiction that underlies the corporate form. Citizens, like Buckley before it, is flawed on a basic level of recognized legal theory. Just because judicial review exists doesn’t mean it is perfect. History has many examples of manifestly wrong decisions including those that were later corrected. Dred Scott anyone? That is why the systems was designed to have counter-balances. Both of those decisions could be made to go away by Congress – provided they worded that/those laws in such a way as to otherwise comport to the Constitution. Free speech, like all rights, should be equally recognized. Removing limits on political spending effectively gives people/corporations with more money than the average citizen effectively more say in the modern media age. That is in part why the Constitution is a living and not a static document: situations change. Citizens United and Buckley are easily as bad a decision as Dred Scott – widely considered the worst judicial decision in the history of U.S. jurisprudence.
Just not everyone realizes it yet and they are constantly being bombarded with the kind of nonsense propaganda you like you regurgitate here, David.
To be clear: If you support Citizens United you don’t support individual liberty, you support corporatism, which in turn makes you a fascist – by definition an oligarch – on top of being an enemy to civil liberties and the basic form of our government as laid forth in the Constitution. The Preamble doesn’t start “We the Corporate”. It starts “We the People”. That you think otherwise given your previous statements saying that the wealthy should have greater voting rights than everyone else, this is simply confirmation all your talk about freedom and liberty is self-serving hypocritical nonsense in service of promoting oligarchy.
Corporations are not people. They are a legal fiction. Any arguments in support of Citizens United and even the pending McCutcheon case is based in a fundamentally flawed understanding of both the nature of rights and what corporations were designed to do, arguing to expand their legal personality far beyond the original intent of corporate charters to provide only the limited personality necessary to own property, enter into contracts and avail themselves of the courts. That personality was limited because you cannot give a legal construct superior rights to a human being when they also benefit from the shield of limited liability and perpetual existence. To do so is simply a recipe for disaster.
Had the Founders and Framers anticipated the nature of mass media – something non-existent in their time – I’m sure they would have paid more attention to Jefferson’s warnings about banks and monied corporations and taken preventative steps to ensure that citizen’s rights would never be subsumed by expanding corporate personality. Unlike you, they understood the nature of a corporation legally. Their failure was in recognizing the danger of that legal fiction unbound.
Unfortunately for you and the other Koch suckers out there, some of us do understand perfectly well what they are trying to do.
Gene H wrote: “Just because judicial review exists doesn’t mean it is perfect. History has many examples of manifestly wrong decisions including those that were later corrected.”
I completely agree with you here.
Gene H wrote: “Removing limits on political spending effectively gives people/corporations with more money than the average citizen effectively more say in the modern media age.”
For the most part, I understand what you are trying to say, but it is not as simple as you make it out to be. For example, government could and does at times fund public access to media outlets to allow the less wealthy to have a political voice. Furthermore, the fact that the wealthy have effectively more say has always been present in our history even before the media age. Many of the wealthier founders published tracts and booklets to distribute, which took a good bit of money. Poor people could never do that. There are aspects of the current media age that makes it easier for less wealthy people to have a voice. People can self-publish now, and produce music to be distributed in ways that before were only available to the very wealthy. One does not need to be wealthy to create a website or participate in blogs like this one. Such avenues for the poor to be able to speak did not exist before.
Gene H wrote: “That is in part why the Constitution is a living and not a static document: situations change.”
And here in your post is where we take sharply opposite turns from each other. Saying that this advantage the wealthy have to speak more effectively and loudly than the poor is in part why the Constitution is a living document is a non sequitur. The Constitution has an amendment process should it be necessary. One does not need to assume that the Constitution must be bendable and pliable in order to accommodate changing times.
Gene H wrote: “Citizens United and Buckley are easily as bad a decision as Dred Scott…”
Strongly disagree with you here.
Gene H wrote: “Just not everyone realizes it yet and they are constantly being bombarded with the kind of nonsense propaganda you like you regurgitate here, David.”
It is nonsense propaganda to believe that people should have the right to associate together, pool their resources, and make political statements? I am still waiting for you to make your case about what is wrong Citizen’s United. It is like you just assume that the problem with the case is self evident, and anybody who agrees with the decision is stupid.
Gene H wrote: “Corporations are not people. They are a legal fiction.”
I don’t know what you mean by that. Corporations are people. A corporation is an association of people authorized to act as a single entity. Why do you use the word fiction? A corporation is not imaginary or false. A corporation is real people acting together.
I can understand the dangers of a large corporation in the same way that I can understand the dangers of a large government. What I don’t understand is the rhetoric you use to demonize corporations. Most corporations are small rather than large. Most corporations are not a threat to America. Most corporations contribute greatly to America and make America strong.
DavidM says: The arguments you and Gene make are all over the place.
No, they are not. Gene and I have very similar ideas of what constitutes a good government, although we may disagree on many details or how to formulate the proper justification, our end points are nearly identical.
You, on the other hand, insist upon arguing in bad faith, and attributing the ills of our current government, the corruption and fascism and abrogation of Rights, as the consequences of our philosophy of government in general.
Those ills are NOT a consequence of our philosophy of government, they are a failure to apply our philosophy of government. From what he has written, I gather both Gene and I believe the current government is corrupt and has been hijacked by sociopaths outside the government funding sociopaths to BE in the government and provide them with unjust favors and privilege.
You think we are “all over the map” because you want to cherry pick factors of the existing government and attribute them as flaws of your definition (not ours) of “socialism” or “communism,” or you want to claim Rights the majority of people do not believe you should have, or whatever. You want to conflate the existing corrupt government and make it a consequence of our philosophy, when it is not, and you want to ignore or dismiss the several instances we proffer that are CLOSE to the consequences of our philosophy.
You debate in bad faith, using falsehoods and lies long after we have corrected you. Our government DOES do the bidding of giant corporations and very wealthy donors that can write million dollar checks on a whim. Ideally, a government should be a check against bad behavior, and we believe that is the only possible check against bad behavior, because we understand both human psychology and historical fact well enough to eliminate your alternative propositions as plausible contenders.
Either you are a liar or you are just too stupid to comprehend what we plainly write, even if we take pains to make it understandable by grade schoolers. Take your pick.
Tony C wrote: “You think we are “all over the map” because you want to cherry pick factors of the existing government and attribute them as flaws of your definition …”
I am not following you at all, and I do not appreciate your binary accusation that I must be either a liar or stupid.
To my knowledge, I am not mixing my model of government with yours. You made a pretty hyperbolic statement, namely: “I don’t think they [Congress] will approve a law that truly constrains anything they [corporations] want to do.” At the same time, you were expressing agreement that corporations have no rights but rather are subject to whatever government determines them to have. In the first case, you make corporations in charge of government, whereas in the second case you make government in charge of corporations. This does not result from me “cherry picking factors of the existing government” and then attributing them as flaws of my definition. These are parallel arguments made by you and Gene at the same time. If you don’t see the logical problems here, fine. I will just chalk it up to the dangers of talking with a schizophrenic.
Skip says: so I would like to see how others would add and or perfect the argument instead of playing the devils advocate.
That is an unreasonable request; it is the equivalent of saying, “agree with me or don’t respond.”
BTW, “concurs” means “agrees with”; it is not how you spell “conquers.”
Skip says: The argument is that a group of individuals have no ethical authority to extend their individual rights to the group as a whole.
That is completely wrong. The absolutist nature of your argument does not hold. Your statement is absolutist because it contains no qualifiers: Your statement applies to any group of any size; “no ethical authority” means zero authority no matter what, even in cases of the life and death of millions. Absolutist statements like this will always be an over-simplification.
If we Americans agree that Theft is wrong and should always be punished by no less than 30 days of incarceration, in fact after many speeches 99.9% of us agree but a small group of professional thieves, the 0.1%, refuse to agree, then by the absolutist nature of your argument the majority has no ethical authority, and is therefore committing a crime, by incarcerating anybody proven to be a thief.
If you think that is true, that we require the agreement of the criminals on how we are to punish whatever the rest of us consider crimes, then you are an advocate for a lawless society.
Skip says: I don’t think that we want to live in a society and world that works on the concept “the biggest army wins”…
It isn’t a “concept” it is a “principle.”
The alternative is either a very tiny society or no rules of behavior at all.
The very tiny society must have every single person voluntarily agree upon every single rule of behavior, which means it is probably cult-sized, under a few hundred people or so, and structured as a dominant leader with a willingly subjugated flock.
However, such tiny societies do not scale well, the dominance of the leader and their ability to convert others into subjects will frequently not translate well to video, audio, or even speeches to crowds. Charisma can be conveyed by such means, even adoration and a willingness to follow, but charisma is only half the battle for full dominance and unanimous agreement. The rest of the capture is usually achieved by personal interaction that must be tailored to the individual. Some leaders do this naturally, others learn and practice it, but either way frequent personal interaction doesn’t scale well, the leader only has so much time in his day and cannot maintain the “voluntary subjugation” relationships he has developed with more than a few hundred adults. Think of David Koresh and the Branch Davidians (55 adults, 28 children). Or the many early kings that reportedly seized power or came to power with relatively small bands of men, or the “warlords” in Afghanistan and Northern Pakistan, whose little army could kill them or exile them but do not, because of their voluntary subjugation by such leaders.
Outside of such tiny society, unanimous agreement becomes impossible; so by your absolutist rule, no laws or rules of behavior can be formed. The only result is a shattering of all of society into tiny societies with their own rules, and constant warfare for resources (food and game, water, women), territory, liberty.
That tribal state gives people far fewer Rights, not more rights. They are subjects of kings that cannot protect them from equal sized tribes that see them as thieves stealing resources to which they are entitled. It is a world of “the biggest army rules,” precisely the one you do not wish to live in.
And that is the world we all live in, Skip. That is reality. Coercion rules. Rights need protection and violators must be punished. Unanimous agreement is impossible, the next best thing is majority rule. If I do not agree with the Rights you propose, then by definition you do not have unanimous consent, and by your own logic you must reject the Rights you propose because implementation would coerce me and I would be subjugated by “the biggest army,” which is how you wish to look at majority rule. If a psychopath considers murder a valid tactic in getting his way, and refuses to consent to punishment for murder, you have to abandon that rule because unanimous agreement is not present.
Nor can you appeal to ancient authority and claim “unalienable” rights are already defined, because they weren’t defined by unanimous agreement of all men! by your absolutist demand, I am not obligated to honor somebody else’s definition of “unalienable” Rights if I do not agree with them, no matter how famous they may have been.
Your absolutism fails. It results in anarchy and coercive subjugation. There will never be unanimity of all people on anything, except at a tribal size that cannot even scale to the size of a medium village, much less a nation. The only choices are majority rule or minority rule, and majority rule delivers a greater degree of freedom, self-determination and reduction of coercion and subjugation than minority rule.
Tony C. I specially placed a misleading assertion in my posts to see if you knew the various arguments at issue. Asking a person of integrity to help present a better argument is not an unreasonable request. In education, we are often given a specific side of a debate to argue. Time to take the binders off Tony C.
I wrote “The argument is that a group of individuals have no ethical authority to extent their individual rights to the group as a whole.” Of course they can, but they cannot extend rights they do not have as individuals.
So you missed the entire point of the issue. Socialists, Communist and Fascist believe group privileges/rights are legally superior to individual rights. Libertarians believe that individual rights are superior to group “rights’.
The question is how can a group of individuals ethically provide additional privileges/rights up and above what they have as individuals.
It is very easy as communist, socialist and fascists do. I think we should grant ourselves the right to steal and we’ll pay off the Judges to make people believe that it’s constitutional.
Your arguments are ethical depraved and why they are wrong.
Skip wrote: “Socialists, Communist and Fascist believe group privileges/rights are legally superior to individual rights. Libertarians believe that individual rights are superior to group “rights’.”
If what you say here is true, you have articulated why I am NOT a libertarian. I believe that rights originate with the individual, but that does not make individual rights superior to group rights. In many cases their rights coincide, but in those areas where they do not coincide, a balance must be struck. It is a situation of competing rights, and determining the outcome is not as simple as saying that individual rights trump group rights in all situations.
Suppose an individual does not like what the group has voted for? Suppose the group votes to build a road through town, but one individual does not think it is necessary. Is that one individual allowed to not help pay for the road because his individual right trumps the group’s right to build the road? I think what would be proper would be for the individual to deny his own right and sacrifice to do what is best for the group as a whole.
Gene, in reference to Jefferson. He is not an irrational man and therefore he must of had a well thought out reason for challenging judicial appointments, to your dissatisfaction. Why do you think he did this, knowing that he felt the Constitution did not put enough restraints and remedies to judicial improprieties, as you call them?
Gene: …that corporations have liberty rights to begin with.
Good catch.
The largest flaw with that statement, Tony, is David’s assumption/assertion that corporations have liberty rights to begin with. Corporations are legal fictions that exist only by governmental charter. They only have the rights we as a society decide they have but they cannot have inherent rights like human do. A corporation has all the inherent rights of a coffee table. Curb corporate liberties? You cannot curb what does not exist. Government can only grant corporate liberties.
Now if you’ll pardon me, I’m going back outside to blow some more stuff up. Why? Because I can. 😀
Gene H –
You are correct in that corporations have only those privileges which government grants them. I’m not sure you would call it a “right” though. Rights are generally recognized for individuals. Government for instance is also granted privileges or duties by We the People, to do those things society deems necessary to secure the individual rights for it’s Citizens.
You may find the use of the term “Right” associated with government, as it is in the Law of Nations, but many believe the argument is flawed and I will try to make that argument.
The argument is that a group of individuals have no ethical authority to extent their individual rights to the group as a whole. Of course the Monarchs of Europe did not agree with this hence, the use of the term Right used in context within The Law of Nations. I find it interesting that our founders incorporated it in the Constitution as it provides an unsolvable conflict between the two arguments. The idea that the group can extent a right to say protect a murderer, even if they deem it as justification to secure the so-called rights of the group, is not rational as it would open up the very concept of what is justice.
If you look at the concept of just and unjust wars, it is arguable that the various imperialistic actions by various government throughout history are unjust, yet the Law of Nations considers this a component of lawful authority for government to rule over those it concurs.
The Revolutionary War in contrast was an attempt to secure individual Rights from those (the British) that were initiating force and coercions against them, hence is therefore becomes self defense and just.
Is it ethical to attempt to secure greater individual rights by force because it is a form of self defense? When a country attacks another country, it must be doing it for just reasons. I’m not sure that oil and opium are justification for the attack on foreign nations and why so many Citizens are oppose to the wars in Afghanistan and Iraq.
I don’t think that we want to live in a society and world that works on the concept “the biggest army wins” as individual rights become moot, and humans can once again become the slaves of those with the most guns.
I’m not sure if I’ve made the best argument for the position so I would like to see how others would add and or perfect the argument instead of playing the devils advocate.
Skip wrote: “You are correct in that corporations have only those privileges which government grants them.”
No, he’s not at all right about this. Such exists only in his idealistic mind about the way he wants the world to be. A corporation is simply an association of individuals. That’s all. If individuals have fundamental rights from their Creator as our Declaration of Independence says, then corporations have rights too.
Skip, I’m disappointed in you. You have fallen for a snare of the socialists and fascists. If they can convince you that you do not have the right of association, or that you lose your rights the minute you associate with others, then that gives the government all the power in the world to oppress and abuse you. This is exactly what fascist and communist governments do. They stop your right to associate with others. They take away that power that comes through association and cooperating with others.
From a legal position, lookup “Santa Clara County v. Southern Pacific Railraoad.” The Chief Justice wrote:
“The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.”
Also check out the case of “Citizen’s United v. Federal Election Commission.” Justice Kennedy wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Yes, corporations have rights protected by the Constitution.
Gene H wrote: “The largest flaw with that statement, Tony, is David’s assumption/assertion that corporations have liberty rights to begin with. Corporations are legal fictions that exist only by governmental charter. They only have the rights we as a society decide they have but they cannot have inherent rights like human do. A corporation has all the inherent rights of a coffee table.”
Well I guess you forget about “Santa Clara County v. Southern Pacific Railroad” and “Citizen’s United v. Federal Election Commission.” You scream Judicial Review when it suits your cause, and then you ignore Judicial Review when it does not get you what you want.
Why would you want to take away the right of 5 citizens to come together to make a political ad for television? Why would you recognize their right to speak only if they do it as a lonely individual?
And if it is because you don’t like the message of somebody like the Koch brothers, I would remind you that they have the money and ability to produce political ads for television without involving any corporations. For guys like you and me, coming together and pooling our resources may be the only way to speak up against wealthy people. Why would you want to take away this fundamental right of association?
DavidM says: Most government laws curb corporate liberty.
No they don’t.
DavidM says: For example, laws like you can’t pollute the environment.
That is not “most laws,” and the government does respond to citizen outrage on occasion, if long-held seats are threatened.
Tony C wrote: ” That is not “most laws,” ”
It was an example of most laws. It was a response to your statement, “I don’t think they will approve a law that truly constrains anything they want to do.”
You make it sound like government is doing the bidding of corporations instead of being a check against bad behavior (behavior that would be detrimental to the public).
The arguments you and Gene make are all over the place. On the one hand corporations are described as government charters that can’t do anything unless the government lets them, yet on the other hand laws would never be passed that would not allow corporations to do anything they want to do. Please make up your minds which way it is or admit ignorance.