I wrote an earlier post about secession. Now I should address nullification.
It's not constitutional. The United States Constitution makes clear that federal law has supremacy over conflicting state law. Resolutions calling for acts of nullification are, at best, wastes of time and, at worst, bad politics. They give fodder to your enemies.
But I do think that three observations are in order.
First, I don't mind that Dan Bice keeps writing about this, but I would think - if he is looking for crackpots to box around - that he might point out to his readers that Shorewood and a number of other communities around the state recently voted to repeal the First Amendment rights of the newspaper works for - as well as every other newspaper and broadcast station in the country.
Second, while we ought to respect the Supremacy Clause in our constitution, we should also respect constitutional limitations on the power of the federal government. Over the past eighty years, those limitation, with the acquiescence of the Supreme Court, have been largely ignored through a combination of lawyerly sophistry and indifference. Legal sophisticates try to avoid a debate about this by presenting this a a fait accompli - something that it makes no sense to question and is, in any event, an inevitable outcome of the centralizing tendencies of the twentieth century. That's not so and a resolution addressing that would be appropriate.
Third, I sure hope that we are going to see as much emphasis on the crackpottery of the Democratic Party resolutions committee. It is not clear to me, for example, that support for nullification or secession in "extreme" circumstances is any worse than support for abortion until, literally, the moment of delivery or, as noted above, repealing the First Amendment rights of newspapers and other legal associations of persons.
7 comments:
Since when are you an expert on abortion.
Ever had one??
“that he might point out to his readers that Shorewood and a number of other communities around the state recently voted to repeal the First Amendment rights of the newspaper works for - as well as every other newspaper and broadcast station in the country.”
Professor, you are passing fiction as truth. Either you are ignorant or are being purposely obtuse. One more time for our dense Mr. Esenberg...
Is a resolution is a vote? Sure. Did this resolution repeal anything? Absolutely not, it carries NO legal weight. The communities did not “vote” to “repeal” anything; they simply stated they they believe our Founding Fathers had made it explicitly clear that ONLY natural persons are deserving of political rights.
Corporations, non-profits, unions, PACs, etc. are LEGAL FICTIONS, created by charters granted by the government. “Personhood” are the liberties ORIGINALLY reserved exclusively for human beings, in this case American citizens. The distinction, which our dear professor clearly fails to note, is between “natural” and “artificial” personhood.
Thomas Jefferson, on the other hand, made it well-known of this delineation.
“I do not believe that in the four administrations which have taken place, there has been a single instance of departure from good faith towards other nations. We may sometimes have mistaken our rights, or made an erroneous estimate of the actions of others, but no voluntary wrong can be imputed to us. In this respect England exhibits the most remarkable phenomenon in the universe in the contrast between the profligacy of its government and the probity of its citizens. And accordingly it is now exhibiting an example of the truth of the maxim that virtue and interest are inseparable. It ends, as might have been expected, in the ruin of its people, but this ruin will fall heaviest, as it ought to fall, on that hereditary aristocracy which has for generations been preparing the catastrophe. I hope we shall take warning from the example and crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” ~Thomas Jefferson
To the Founding Fathers, natural persons were born with rights inherent and given to us by God. “Natural rights” are available only to “natural persons” (singular), not “associations of natural persons” (plural). The common law distinction makes perfect sense.
The professor is most assuredly being intellectually dishonest when he exalts that the Shorewoods and the Whitefish Bay’s of the world are usurping one’s liberties--those POLITICAL freedoms were purposely designed with the intent for human beings!
Of course, corporations do have rights to protect their property, which may involve freedom of speech from an ECONOMIC perspective, i.e. pertaining to their business operations and affairs. Again, these communities are NOT taking away anything.
The dirty little secret is that it took a court reporter, a former railroad executive, to write the following as part of a headnote in Santa Clara County v. Southern Pacific Railroad Company (1886)-- "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 corporations. We are all of the opinion that it does."
Except, the Supreme Court was NOT deciding on this specific matter! Thus, this case laid the foundation for subsequent cases involving "corporate personhood" from a political point of view.
And just in case “Tom” appears on his white horse in shiny armor to the rescue...
Indeed, how should the Supreme Court treat newspapers, magazines, and television networks which report the news since media companies are “artificial entities”? Recall the Marshall Court ruled in Dartmouth College v. Woodward (1819) that corporations are an ARTIFICIAL BEING possessing the properties which the charter of creation confers upon it--meaning a government granted a business with the ECONOMIC right--not POLITICAL rights--to operate within its borders and ECONOMIC free speech in the form of promoting and protecting their business activities.
In media company cases, the Supreme Court has tailored its rulings under the "Freedom Of The Press" clause. In citizen cases, it has tailored its rulings under the "Freedom Of Speech" clause. In other words, when free speech issues come before the Supreme Court, they make the appropriate categorization (freedom speech or freedom of the press), hear arguments, and craft a legal opinion based on previous cases and past precedents for that particular category.
Twenty-two cases since 1936 have rendered decisions in that for-profit corporations DO NOT enjoy the same First Amendment rights as individuals; rather they extended only to those INDIVIDUALS WHO WORK FOR COMPANIES that are vehicles for producing and distributing free speech, such as books, newspapers, journals, films and other artistic and educational entities. That is, writers--actual people--who WORK for a media company are subject to the freedom of the press provision of the First Amendment. The “property” involved is the content of the story.
We know that exceptions exist to free speech (e.g. sedition, slander) for both media companies and citizens. Media companies, however, are unique in its role regarding free speech compared to other businesses; that is why the Supreme Court has made this distinction in its past rulings on matters involving people who work for media companies. If a reporter engaged in slander, they would be sued under their occupation as a writer employed by their company, i.e. freedom of the press. If a business owner engaged in slander, they would be sued as a private citizen, i.e. freedom of speech. Again, the Supreme Court has made this determination, and its rulings in these matters reflect those
specific differences.
“Third, I sure hope that we are going to see as much emphasis on the crackpottery of the Democratic Party resolutions committee.”
You meant to say Republican Party resolutions committee. Bice wrote, “Earlier this month, the party's Resolutions Committee voted in favor of a proposal that says the state party "supports legislation that upholds Wisconsin's right, under extreme circumstances, to secede."
“the moment of delivery or, as noted above, repealing the First Amendment rights of newspapers and other legal associations of persons.”
Care to triple down in another post on this matter, professor?
Mr. Mitchell: What's "secret" about Santa Clara County v. Southern Pacific? Are you claiming the Court was or is unaware of what the report of the case says?
A senior editor for The Atlantic (Jack Beatty) wrote a book on the Gilded Age. He inquired how reporter's note reflected a quotation that was noticeably absent from the legal decision itself.
"Why did Chief Justice Waite leave it up to Davis to include it in the headnotes? After he told Davis that the Court 'avoided' the issue of corporate personhood, why did Davis include it? Why, indeed, did he begin his headnote with it? The opinion made plain that the Court did not decide the corporate personality issue and the subsidiary equal protection issue".
The headnote offers the appearance that ALL of the justices believed that corporations enjoyed rights similar to natural persons under the Fourteenth Amendment, when in reality it merely provides a reporting by the Court Reporter of the Chief Justice's personal interpretation of the Justices' opinions.
The issue of applicability of "Equal Protection to any persons" to the railroads was NOT addressed in the decision of the Court in the case. In fact, the decision rendered by the Supreme Court was benign--no one on the Court nor the participants even bothered to question that particular note.
It is a perverted example
in which a statement that clearly has no bearing on the Court's ruling has been employed as a precedent to affirm the protection of corporations under the Fourteenth Amendment.
Perhaps our dear professor could comment further on this particular matter.
Mr. Mitchell:
The reporter's note is of what was said in open court in the presence of all the justices. That it is accurate is indicated by none of them taking any subsequent action to change what was stated in the official report of the case.
Presumably, any advocate with a case that would be advanced by making an issue of the reporter's note has done so. If such an effort has been made, it apparently failed.
So your basis for applying the word "secret", and then "perverted", to this situation remains unclear.
“That it is accurate is indicated by none of them taking any subsequent action to change what was stated in the official report of the case.”
It’s a “secret” why those Justices did NOT expunge the court reporter’s note from the official record. Perhaps you (or the professor) could shed some light on why.
Listen, it’s called context. It’s “secretive” because the court reporter, on his own accord, purposely put in a statement he knew was NOT part of the official opinion. What was his motivations? Was their complicity involved on the part of one or more Justices?
It’s “secretive” because the Head Justice apparently did NOT admonish the court reporter’s actions, nor insist that the statement be excluded from the official record.
It’s “secretive” because the general public is decidedly NOT aware of the machinations that led this precedent to serve as a foundational piece to Citizens United.
Chief Justice William Rehnquist, a conservative, even mentioned the dubious headnote in the Santa Clara case when he wrote a compelling dissent in a 1978 Supreme Court case that expanded corporate personhood. It’s a “secret” why he did not follow up with his concern that subsequent cases actually rest on shaky legal ground.
Rehnquist reiterated Chief Justice John Marshall's views in Dartmouth College v. Woodward (1819) a corporation was an ARTIFICIAL BEING possessing the properties which the charter of creation confers upon it--meaning a government granted a business with the ECONOMIC right--not POLITICAL rights--to operate within its borders. Moreover, Rehnquist warned treating corporate spending as the First Amendment equivalent of individual free speech was to "confuse metaphor with reality".
I will also say it again for the sake of context--It is a perverted example in which a statement that clearly has no bearing on the Court's ruling has been employed as a precedent to affirm the protection of corporations under the Fourteenth Amendment.
So, what say you (or the professor) about the actions undertaken by the court reporter and the justices in this matter? In general, what is your take regarding corporations and political rights? Does money = free speech?
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