Where did we go wrong? And how can we fix it?

I think that your last item would be daunting enough even though it requires not a single change in the Constitution, just the rejection of a century’s worth of bad case law. But business will not give up those hard won “rights” without a fight.

I agree that the Constitution could use some tweaking for the 21st century (e.g., money isn't political speech) and that a number of the suggested items might make sense. But you will never get them done, absent some catalyzing event, because the real problem is one of complacency and disillusionment. If the people are too indifferent to rise up against being deceived into aggressive war and occupation, government spying, kidnapping, torture and imprisonment without due process, what the f*ck would get them off their sofas to bust their asses to change the Constitution?

I’m afraid that things will have to get much worse before people can be shaken out of their media-induced stupor. And then the leadership will have to be there to prevent that from leading to even worse (I’m not an optimist).

And all that begs the question of whether we don’t deserve whatever bad is coming to us.

The media induced stupor comes from people tuning into "one-to-many" media like broadcast and cable TV.

But that's changing. Every year, fewer and fewer people are tuning in.

Instead, with the advent of peer-to-peer technologies, people are taking control of the information they consume. And they're using that information to take action.

Peter Daou described the triangle of politics, media and blogging. A couple of years ago it was a pipe dream to think that bloggers could effect change on public policy. Now, however we seeing it starting to happen.

For example, today we read that Chris Dodd will put a hold on the Senate FISA bill that grants retroactive immunity to the telcoms for warrantless wiretapping. The bill may yet pass, but the netroots were able to make a difference in a relatively short period of time.

The good news is that the genie is out of the bottle. Positive change may take longer than we want and there will be bumps in road (e.g., loss of net neutrality). But I'm optimistic that it will make a positive difference.

The bad news is that the role of the corporation hasn't changed. And I'm not sure how to change that.

I agree that the erosion of marketshare for the brain-dead media and the rise of citizen journalism on the intertubes is our only hope - again, why we should be extremely concerned about what power elites may try to do to it.

There is only one answer to how to change the role of corporations and that is to change the pay-to-play nature of political access. To do that we need to make people understand that "corporations are not persons."

Wow. This looks as long as one of my posts.

I only agree with a few of Sabato's proposals:

Congress:
1. One Senator for DC is okay, the rest is crap. It violates the Connecticut Compromise that defines not only Congress, but almost every State Legislature. I'm biased. I played Roger Sherman in 1776! and this was his baby. I'd give Puerto Rico a Senator too, or if they don't want one, maybe an "at large" seat.
2. No. Old Presidents should go out and write books or build houses or get on the Supreme Court, but leave the rest of us alone. Can you imagine Nixon having any influence on government after resigning and getting his pardon? Or Cheney still influential?
3. Yes, but good luck with that non-partisan thing.
4. No. I don't like his whole restructure of the length of terms to throw out the entire govenment -- mainly because it makes a mockery of his idea in #8 for continuity of government.
5. Hell No. It's already unwieldy. You can't imagine how much won't get done with a thousand screaming Reps. The probability that any work will be accomplished is inversely proportional to the size of the committee.
6. Term Limits are a good idea.
7. No. But I don't like the debt either, and think something along the lines of forbidding Congress to raise the debt ceiling within their own term might be a better idea, or no more than a certain percentage, but some limited form of deficit spending is acceptable to me. Plus there needs to be an emergency clause.

Presidency:
9. One 6 yr term works for me. Forget the 2yr referrendum (and just how is that supposed to work with his idea of the whole Senate election coinciding with this?)
10. Absolutely. The War Powers Act has been the most abused law we've seen during my lifetime. We no longer have Heads of State, but Ceasars running things.
11. Line Items only on budgetary stuff, with a lesser override requirement than 2/3rds, 60% maybe -- filibuster threshold -- with a single up/down, no debate and an individual recorded vote on each veto'd item. They want their pork, put 'em on record and leave out the demagoguery.
12. No. Sorry. It's the only job of it's kind and the only job in the world with such a requirement.

Supreme Court (really should be entire judiciary):
13. Make it twenty years and I'll go along with it. That's the usual time in service for full pensions in the military and countless unions. I like California's system the best. Appointed and confirmed by the Executive and Legislature, with a public recall referrendum every so often, say 5 or six years. Kinda like he suggests for the two bonus presidency years that has no purpose for the executive, but checks the judiciary.
14. No, there are some incredibly wise old men (and women) I've learned a lot from who are over 75 and wear black robes.
15. Yes, FDR Lives.
16. Pay is never an issue now. They make what Congress makes. So, instead of "no" I say, "why?" You can step-scale it up based on a merit/efficiency system. As long as your docket moves no less than 20% of the case disposition average per year of all judges. Perform, move cases along, or don't get a raise.

Politics: What a kettle of fish this is.
17. No, and
18. No. The government and parties should be separated as much as possible, not one making rules for the other. See the Communist Party of the USSR for the reason this is a bad idea.
19. How about just counting the damn votes, huh? The EC is fine. You want it more representative? Eliminate the the winner take all system in every state, all at once, not piecemeal like they were thinking about in California.
20. Okay, but I'm not as concerned about wealthy candidates as I am about their wealthy friends. And while we're at it, as long as money=speech, then the Fairness Doctrine must come back, media ownership must be more, not less diversified, and if you want your 527 to run anything it wants, it has to pay for half of the opposing view's ad time.

Sorry Shep, I'm not that adamant against the idea of how you use your money is a freedom of expression thing. Regulate it, especially corporations as licensed entities, sure (see below). But remember it was Guttenberg, not some guy named Ibrahim who could afford to make a printing press with movable type and rightfully should be able to profit from his ingenuity and capital investment, so bibles were printed instead of Korans. When next Guttenberg who comes up with a way of broadcasting right into the chip in your brain will have a lot to say about content -- content you should be able to turn off at will and if the incentive is there, he'll have competition.
21. Okay
22. Yes.
23. We're overdue, since 1911 I think.

Now, on to corporations.

As I've discussed at length with Wince, ingrained in the Constitution itself was the idea that Corporations were "persons" but not "citizens." It's right in there something like nine times. Look for things like who can vote or serve in office. The founders were careful in their terminology, differentiating between natural born persons and the idea of "other" persons, corporate or slaves, who were also property.

The form itself, sheltering liability of investors, is what has made western civilization what it is. The Boston Tea Party was as much a protest against the Crown as it was against one of the most powerful multinational corporations of the day, the East India Tea Company. Where everything goes to hell is the worship of the free market as something above and beyond the Constitution itself. Milton Friedman ranks right up there with Marx as the saint of a destructive economic ideology gone amok.

I'd make an addendum to the First Amendment, that "Congress shall make no law abridging the freedom of speech or of the press of any citizen or lawful resident of any of the United States or it's territories." That would take care of corporate speech, be it 527's, the fairness doctrine, McCain/Feingold and truth in advertising. Since corporations aren't citizens, they don't have a "right" to free speech. Their speech, as a privilege, not a right, is completely subject to regulations.

This works in practice in any licensed occupation, like (gee, why would I know this) bar owners and lawyers. I am strictly regulated in how many signs I can put in my windows. I can't put name brands of alcohol products on my ads, which otherwise are a form of expression. I have minimum pricing requirements, all justified since as a licensed establishment it's a privilege, not a right to sell booze in Ohio. Even food has qualifications, like the disclaimers against people who insist on ordering bloody red burgers. My menus are required to have a health code warning against raw or undercooked food.

As a lawyer, I'm even more regulated -- unbelievably regulated in my freedom to advertise how I want to. Ara, some of the ads I see from Michigan lawyers filtering over the border would be cause for instant disbarment in Ohio. From what I can put on a business card or letterhead, what a Yellow Pages add can and cannot say, to the size of the print and color of the ink in a direct mail ad (which have only been allowed here since '93), the way I advertise must meed strict guideline -- including the legal requirement that such expressive speech be subjectively "tasteful," whatever that means. Moreover, lawyers are the only profession that are prohibited to form corporations to shield their personal liability. You could extend that to professions such as lobbyists as well or political action organizations, even unions. Make people who want to pool their efforts and resources for political speech be personally accountable for that speech.

There's also no reason that forming a corporation cannot be a licensed activity, a privilege, not a right. Although corporations were indeed contemplated in drafting the Constitution, there's nothing in it as it currently stands prohibiting someone being required to apply for a license to incorporate. You don't need a Constitutional Convention for that, just pass a law. And, as creatures of the State, the State would have to raise it's creation properly -- and could insist it behave or loose it's license to print money.

Also, I'd do away with corporate income taxation entirely. Half of all corporations are mere tax dodges anyway. All it does is pass on the cost of the tax to the consumer and create write-offs for executives. Like a sales tax, corporate income taxes passed on as higher prices are regressive in nature. Luxury taxes, and import/export taxes are almost a forgotten revenue source on the other hand, and also a trade deficit equalizer. Globalist/NAFTA proponents will fight this tooth and nail, which is why you know it's a good idea.

Instead of eliminating the corporate form, or stripping them of the legal rights of due process and equal protection, enshrine the anti-trust laws (that have been all but eliminated since Reagan) into the Constitution, or at least enforce the laws on the books now.

I'd add some things, like going beyond the freedom of association clause, making the right of laborers to organize into unions, and to strike, part of the Constitution, making any interference with union organizers a federal crime, even if it's the federal government doing it.

Another thing I would do, which doesn't require wholesale messing with the Constitution (which frankly scares the hell outta me) is join the International Court of Criminal Justice. That has a lot more teeth than the International Court of Justice (the "World Court" at The Hague) which we ignore when it rules against us.

I'd get the ERA passed too. Eliminate the Second Amendment, making gun ownership a licensed activity subject to completely arbitrary regulations just like the formation of corporations. And retroactively make the Annexation of the Republic of Texas null and void. Those fucking cowboys have got to go.

One thing I've kicked around a bit in my head appeals to my Bush Derangement Syndrome. I'm toying with the idea of a parliamentary system. If Bush were a Prime Minister, he'd have been gone last year. It would be much more dynamic to the whims of the people, and eliminate the necessity of having a Vice President. At worst, a deputy Prime Minister serves as acting Premier for only a few months until new elections are had.

[Arrggg! Just as I finished this, the wind blew a treebranch into my phone line, disabling my DSL for the last 12 hours. Better late to the discussion than never.]

”As I've discussed at length with Wince, ingrained in the Constitution itself was the idea that Corporations were "persons" but not "citizens." It's right in there something like nine times. Look for things like who can vote or serve in office.”

Really? Can corporations vote or run for office? I’m not a textualist but that sounds pretty lawerly to me. Can you show me the best example of where the Constitution embraces corporations as “persons” relative to the Bill of Rights?

And any court rulings before Santa Clara County v. Southern Pacific
Railroad Company supporting that contention. In other words, how is this guy wrong?

And please keep it "Constitution simple." I'm no lawyer, so you'll have to make it simple enough for a fifth grader - that's when I learned what the Bill of Rights was all about.

No Shep, that's the point The constitution itself uses the word citizen when talking about holding office or suffrage. Read what I wrote again.

I gotta run and get the kids and do some errands. I'll take a look at Stanta Clara again when I get back.

In the mean time, since we ain't getting rid of corporations anyway -- what do you think of my idea of making it a licensed activity?

First from Wiki:

California had created a law which provided for taxation of railroad property. The taxpaying railroads challenged this law. They raised numerous defenses, including claims that the taxes violated equal protection. The lower court had entered judgment for the railroads, holding that the tax assessments were void because they improperly included property which was outside the jurisdiction of the agency that assessed the tax.[1]

The Supreme Court never reached the equal protection claims. Nonetheless, this case is sometimes incorrectly cited as holding that corporations, as juristic persons, are protected by the Fourteenth Amendment.[2] Although the question of whether corporations were persons within the meaning of the Fourteenth Amendment had been argued in the lower courts and briefed for the Supreme Court, the Court did not base its decision on this issue. However, before oral argument took place, Chief Justice Morrison R. Waite announced: "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 the opinion that it does."[3] This quotation was printed by the court reporter in the syllabus and case history above the opinion, but was not in the opinion itself. As such, it did not have any legal precedential value.[4] Nonetheless, the persuasive value of Waite's statement did influence later courts.[5] For these reasons, it is considered a turning point in the extension of constitutional rights to juristic persons.[6]

I know, reading footnotes is a drag, especially when everything's summarized in the headnotes -- which is why this case stands for something it never said. But if you note the last linked footnote, it goes to a Mother Jones article: When Is a Corporation Like a Freed Slave? whose title (but not the article itself) embodies the idea of "other" persons I mentioned in my first comment. In the Constitution's infamous "3/5ths" clause it was contemplated that there were some "persons" who were not to be counted the same as the old white guys who wrote the thing.

Before I go line-by-line through the Constitution in my next comment think about this idea. When you die, should your rights die too, are your privacy rights now void? If you have intellectual property that provides you royalties, does that now end because your right to be secure in your papers is gone -- or should you be able to freely and securely pass such on to your designated beneficiaries.

When an estate is formed out of a decedent's property, the executor of your will has much the same fiduciary duty to the legal fiction that is your estate as a corporate executive's fiduciary responsibility to the corporate entity. An estate can sue and be sued for just debts, even those arising after you die, like burial expenses. If a corporation can be sued in our courts, why should that entity not be able to avail itself of the rights and protections of our system which it's accusers might have. Criminal penalties often triple the fines if a corporation, not a living person, is found guilty.

You also must, must, must acknowledge that the corporate form is the single most efficient way to gather capital to undertake an enterprise that would not get started if left to individuals risking everything they have or relying on government largess. The pioneering/entrepreneurial spirit of this nation is what put us on top. But like water to a garden, while necessary, a flood is too much of a good thing. They must, must, must be better regulated.

Here's the line-by-line analysis of everywhere the word "Person" is in the Constitution.

Art.I,Sec.2,Cl.2: Representatives must have "been seven years a citizen"
Art.I,Sec.2,Cl.3: The 3/5ths clause counting "free persons" including indentured servants, exclusing Indians, and "three-fifths of all other persons." for tax and representation purposes.
Art.I,Sec.3,Cl.3: Senators must have "been nine years a citizen"
Art.I,Sec.3,Cl.6: Refers to "persons" being impeached
Art.I,Sec.4,Cl.2: "no person holding any office under the United States shall be a member of either House"
Art.I,Sec.7,Cl.2: "the vote of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House"
Art.I,Sec.9,Cl.1: Again with the slaves as persons, not citizens, "The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to" 1808. Taxed at $10.00/"person."
Art.I,Sec.9,Cl.9: Tell me this isn't referring to multinational corporate "persons." "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state."
Art.II,Sec.1,Cl.2: Same language prohibiting corporate persons from being electors. "no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an Elector." (Freed slaves are not prohibited from being an elector, but corporations are.)
Art.II,Sec.1,Cl.3: Uses the word "person" extensively in who the electors vote for and how, but what type of "person" can even run for president is restricted to "citizens" in Art.II,Sec.1,Cl.5: .
Art.II,Sec.1,Cl.5: No person except a natural-born citizen, or citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President

Art.III,Sec.3,Cl.1: "Persons" tried for treason must have 2 witnesses against them. Note that the judicial power of the US in the preceding section, Art.IiI,Sec.2,Cl.1 refers to the civil (not criminal) jurisdiction of US courts, and deals exclusively with suits between "citizens" of different states, between a State and "citizens" of a different State, or between a State or it's "citizens" and a foreign state, citizens or subjects.

Art.III,Sec.2,Cl.1: (preceding above clause) Nowhere in this clause does the word "person" appear. I take this to mean that originally, corporations did not have standing in Federal Court, but one's redress was to sue the State which chartered it or the corporate executives who would be personally liable that the corporation followed the law. A corporation would have to sue in State court and the State's attorney general or Secretary of state could, if prudent, take up the cause of the corporation in federal court to reach those outside of the state but invoking federal jurisdiction on behalf of the State, not the corporation.

Various interpretations of the Commerce Clause and Contracts Clause have bypassed this awkward procedural bar from corporate access and vulnerability to Federal court. Long Arm statutes have allowed one State's corporations to be subject to another State's laws by "doing business" in that other State. "Doing Business" has been interpreted extremely liberally, which is a good thing, allowing consumers to be able to hold foreign corporations accountable for the consequences of their activities far away from their HQ's, but convenient to the individual who was wronged.

While Art.IV,Sec.2,Cl.1 says only "citizens" have privileges and immunities, but the next two clauses talk of "persons" being extradited in Art.IV,Sec.2,Cl.2; and Art.IV,Sec.2,Cl.3 speaks again to indentured servants and slaves as "persons"

Now the 4th Amendment speaks of "people" being secure in their "persons," houses, papers, and effects, against unreasonable searches and seizures; so in this instance, since it isn't talking about what the "people" can or cannot expect to be searched -- including their "persons," (not limited to their personal bodies), you can interpret this to mean it does not expend to corporate "persons" having this security against warrantless searches since they aren't "people," although slaves would qualify under this interpretation as "people." And "persons" (of all types who may or may not belong to the "people" being searched) can be seized. I think this is the most carefully parsed clause in the entire document.

Why else would the very next Amendment talk of "persons" and not the "people's" Fifth Amendment rights. Corporations don't get search warrants, but do have protection from double jeopardy, self-incrimination, and get grand juries, due process, and just compensation for property seizure.

The speedy public trial requirement of the Sixth Amendment extends to all "accused." No dance whatsoever over the difference between people, persons or citizens. Jefferson's genius with words again on display.

The latter Amendments, like XII, follow this convention. XII again speaks of "persons" being VP and Prez, but doesn't change the Natural Born requirement of Art.II

Amendment XIV talks of "persons born or naturalized" being citizens and protected by the privileges or immunities of citizens of the United States -- which does allow State created entities like corporations, even if they are "persons," to be subject to more draconian laws than you could enforce against citizens. This also carefully avoids conflict with the Privilege and Immunities clause of Art.IV,Sec.2,Cl.1 which likewise does not extend P&I's to corporate "persons."

This makes perfect sense since a corporation must be subject to the laws of the State which issues it's charter, and not violate those laws because another State's laws are in conflict. That would amount to forum shopping when it comes to which laws a company must adhere. But the States can only go so far against corporate persons in their different treatment of them when it comes to life, liberty and property and denial of due process or equal protection which again protect persons and not just citizens.

Why make the distinction so clear in one clause unless the absolutely meant this to happen, talking about different rights extending to "citizens" above and beyond those that mere "persons" can expect.

Section II of Amendment XIV eliminates the 3/5ths clause, but the census still counts persons, yet only male "citizens" vote. The XXII'th Amendment on presidential succession does nothing to abridge the citizen, person, people, subjects and accused distinctions.

Thanks, Mark.

First off, I think you mistake me for someone who thinks corporations are necessarily a bad thing.

My only point is that they have stolen constitutional rights to which they are not entitled and which obstruct or prevent the very regulation that is needed to make them work in society’s interest, even as they benefit the people who create them. I still see nothing in the constitutional texts that conveys Bill of Rights protections to corporations and believe that they were indeed intended only for individual citizens (or natural persons). If it doesn’t have a conscience, it’s is not entitled to free speech, equal protection under the law, the right to be secure in their persons or effects, etc.

You licensing idea is fine but it might not even be necessary if we simply rescinded Bill of Rights protections to which corporations have never been entitled in the first place. That's where we should start.

Mark:

I don't have time to address all of your excellent points, so let me cherry pick a couple of the bad ones:

Term Limits are a good idea.

Term limits suck. They were invented by people who hate somebody else's Congressman.

If a politician's constituency wants him out, let em get off their asses and, you know, vote him out of office.

You can't imagine how much won't get done with a thousand screaming Reps.

Miss Julie just bought a poster that says, "None of us is as dumb as all of us."

That said, 1 representative for every 625 thousand people is spreading that guy pretty thin. It may make for streamlined legislative sessions (or not -- what universe are we co-habiting, Mark??) but fewer Reps just closes off the voice of the people.

Ara, never underestimate the stupidity of large groups of people.

You bring up an interesting point: what happened to the wisdom of crowds? Or more to the point -- when does the wisdom of crowds tip over and turn into the idiocy of your average business meeting?

I'm just asking.

This time, 1981.