What Constitution?

[Note: I've been dreadfully ill since returning to California from New Mexico. I hope this episode won't require hospitalization, but if things don't start showing signs of improvement soon, I just may have to buckle under, and where that will lead... I dread to think.]

"And so it begins," as they say.

The Fourteenth Amendment is the one that will be under immediate and relentless assault as soon as the New Model Congress and State Legislatures assemble in January. The rightists and reactionaries have been quite up front about what they have in mind: restricting "birthright citizenship" to those born to citizens.

The opening wedge, of course, will come via Arizona's bizarre rightist brown-people hater, one Robert Pence, author of the execrable SB 1070 that made it a crime to be unable to produce proof of citizenship or legal residency on demand of an Officer of the Law.

The assault on the Bill of Rights (except for the Sacred Second) has been underway since the Founding, and the limitations and restrictions on those "rights" (so-called) have been expanded to such an extent that most are now subject to the interpretation of whomever wishes to assert authority over someone else.

It's that bad.

Anyway, the 14th Amendment has stuck in the craws of many reactionary rightists over the years because it does two impermissible things: it extends citizenship to everyone born on US soil (who is subject to US jurisdiction) regardless of the legal status of their parents, and it:

Protects rights against state infringements, defines citizenship, prohibits states from interfering with privileges and immunities, requires due process and equal protection, punishes states for denying vote, and disqualifies Confederate officials and debts

Every bit of it is hated and despised by the reactionary rightists, and I note with interest that many of the Libertarians are still obsessing on Julian and Bradley Manning and what's to become of WikiLeaks.

The more important consideration for most Americans when it comes down to it is what is to become of the 14th Amendment. If the rightists succeed in weakening it -- which looks like a possibility in these difficult times -- it will open a door they have long wished to have access to:

Restricting citizenship rights in general.

This has long been a goal, not only of rightists and reactionaries as a class but of a significant number of Libertarians as well. They all believe that only the "right kind" of person should be granted the privileges of citizenship, and that doesn't include the masses. They are too ignorant, too lazy, too bone stupid to deserve such privileges. Besides, most of them wouldn't miss their citizenship rights if they were taken away. Most Americans don't use them anyway.

Here's a quick squib from TIME Magazine from 1924 which will give you a little taste of how deeply resented the 14th Amendment has been since its ratification in 1868:

In New Orleans, a suit has been filed in the Federal District Court to oust Walter L. Cohen, Collector of Customs of the Port of New Orleans. Mr. Cohen is a Negro, and the petition, filed by Edwin H. Both of Washington, D. C, and Carl E. McHenry of New Orleans, alleges that he obtained his appointment in the U. S. revenue service by subscribing to an oath that he was a citizen of the U. S. when, as a matter of fact, he was "of African descent and, therefore, incapable of becoming a citizen of the United States." The basis of this contention is that the 14th Amendment to the Constitution was never legally ratified by three fourths of the states. It was submitted, it is charged, by a Congress from which the Southern States were excluded. Also, it is said, the six Southern states which ratified it did so "under compulsion" and New Jersey and others withdrew their ratification.

The validity of the 14th Amendment has frequently been discussed as an academic question. This suit, however, marks the first time it has ever been before the courts. Said The New York Tribune: ". . . an engaging attempt at nothing less than the juristic revision of the Civil War. . . . The confidence of these two Southern gentlemen in the Supreme Court is monumental. Not even Mr. LaFollette ever charged that it could remake history."


Read more: http://www.time.com/time/magazine/article/0,9171,769107,00.html#ixzz18fdH6VsB

Indeed. The whole point of Jim Crow laws in the South was to cancel the 14th Amendment, and it was largely successful for nearly 100 years. But Jim Crow style workarounds to the 14th Amendment were instituted throughout most of the rest of the country as well, the whole point being to limit and restrict the civil rights of citizenship to the "right kind of people."

We've only lived a few decades under a profoundly different regime, which takes the 14th literally, and given the reactionary and rightist make up of today's Supreme Court, we're liable to go back to the way things used to be. The 14th cannot be struck down, but just as legislatures and courts did during the Jim Crow era, it can be relatively easily circumvented. It's not just about citizenship, either. It's the whole ugly notion of "equal protection under the law."

They can't rewrite it, and they can't very well repeal it, but they will try every work around and subversion that creeps into their rotten little minds until the 14th is effectively inoperative once again.

That's the game plan.

Civil Liberties Fanatics, where are you?

It will be interesting to see what positions and actions they take on this issue come January.

My prediction: they'll find something else that is so much more important.

Michael Waldman opines:

http://www.mercurynews.com/opinion/ci_16880625?nclick_check=1

Nino has his say:

http://joemygod.blogspot.com/2010/11/antonin-scalia-14th-amendment-should.html

[You see, it's not just about the Messicans, you people. It's about Teh Ghey, too. Eventually, it will get back around to the Negroes, not to forget the Wimmens.]

As the SacBee puts it:

http://www.sacbee.com/2010/12/19/3268814/arizonas-next-immigration-debate.html

Black Letter of the Law

And the problem of False Equivalence.

Today I posted some things over at Glenn's Place that touched on some interesting parallel actions in Supreme Court rulings.

On May 10, 1886, for example, the Court handed down the Yick Wo v Hopkins (that Glenn referred to in his post today) which extended 14th Amendment protection to non-citizens, such as Yick Wo himself. That same day, they also handed down the infamous Santa_Clara_County_v._Southern_Pacific_Railroad ruling that extended 14th Amendment protection to corporations such as the Southern Pacific Railroad in its headnote, though that was not what the Court actually ruled in its decision on the case under review. That ruling essentially upheld lower court rulings that SPRR property in Santa Clara and Fresno Counties had been improperly assessed.

On December 18, 1944, the Court ruled in Korematsu v United States that Executive Order 9066 which ordered the removal of persons of Japanese ancestry from the West Coast was Constitutional. On the same day, the Court ruled in Ex Parte Endo that the Government could not continue to hold American citizens (such as the rounded up Japanese Americans in the camps established as a result of the execution of Executive Order 9066) once the Government itself conceded their "loyalty" -- which the Government had done. Consequently, beginning January 2, 1945, the internees were allowed to go home if they could, and the camps prepared to shut down. This occurred while World War II still raged in Europe and the Pacific, and FDR was very much still alive.

I also posted the entire text of the 14th Amendment and the holdings in Yick Wo v Hopkins and Santa Clara v Southern Pacific as they related to the 14th Amendment.

The point Glenn was making in his post is that the Constitution applies to citizens as well as non-citizens -- ie: all "persons" under the jurisdiction and/or authority of the United States of America, as declared by the Court in Yick Wo. The point I was making was that the Court was in an expansive mood that day and was extending 14th Amendment protection, perhaps inadvertently, to corporations (ie: fictional "persons") as well as aliens.

In like manner, the Court, feeling expansive, ruled in favor of the Government in Korematsu and against continued holding of "loyal" American citizens in Endo, in effect releasing the internees.

These expansive acts are forms of balance that the Court once engaged in fairly regularly, but which it appears to have avoided for quite a while. My argument is not that there are equivalences here but is instead that these important rulings should not be considered in isolation. They have a context, and that context is often missing in the discussion of them. Part of that context is an effort by the Court to find some kind of balance between competing interests. Ie: at least the perception of Justice.

In that light, it is of some interest that at the time Yick Wo was decided, Chinese immigrants were barred from citizenship. Yet the equal protection clause of the 14th Amendment, by the clear black letter of the law, applied to "any person within its jurisdiction," without the caveat that that "person" had to be a "citizen." Discrimination by race under the law or in the application of the law (in this case a San Francisco ordinance) was therefore clearly unconstitutional, and so the Court ruled.

Of course they would rule ten years later in Plessey v Ferguson that "separate but equal" accommodations were Constitutional... so you never know.

However, extending 14th Amendment protections to corporations, as they did in Santa Clara, seems quite a stretch, for it presumes that the status of corporate "persons" is identical at law to that of "natural persons." But that status had never previously been established, and in fact it had been previously denied, deliberately and with substantial consideration.

Corporations are not "persons" in the sense that the term is used in the Constitution. "Persons," "People," and "Citizens" are used in the Constitution to refer to "natual persons," ie: human beings.

Corporations are artificial creatures chartered by the State ostensibly on behalf of the People. Rights and privileges of corporations are purely a function of their charters and the People's governments which approve their charters, not of the Constitution.

Rights and privileges of natural persons ultimately derive from their status as human beings; the Constitution protects those rights and privileges against excess Government intrusion. Corporations are creatures of their charters as approved by the Government; they have no existence whatsoever outside that which has been provided them by charter and Government.

It's a false equivalence to assert that corporations are entitled by the Constitution to the same protections of the 14th Amendment as "natural persons."

Corporations have no Constitutional protection at all. A plain reading of the black letter of the law would lead one to believe that the Court erred in extending 14th Amendment protection to corporations. Correcting such an error will not be easy, but it's not impossible.

One approach, which I favor, is to avoid the false "either/or" alternatives. It is false to assert that corporations either have full protection of the 14th Amendment as a function of their "personhood" or they have "no rights at all."

As creatures of their charters and the approval of the Government, they have such rights and privileges as the People shall determine, not the rights and protections guaranteed to the People by the Constitution.

This is not a hard concept except to those who would make it hard.

Corporate "personhood" is now deeply ingrained in law, and it is said to be difficult at this point to dis-"person" corporations without overturning a huge body of law concerning corporations. Yes, it is inconvenient and potentially costly, but it is not impossible.

The point is to restore corporate rights and privileges to those which can be determined by the People, through their elected bodies and statute law, not the Constitution.

In fact, "personhood" may (or may not) be sustained by the People, but it should be up to them, not an offhanded comment by a justice who then rules on something else entirely.

Another false equivalence that enters the discussion is that between Government on the one hand and corporations on the other. sysprog asked, for example, whether I thought it was desirable to "leash and regulate" governments as well as corporations. Simply put, they are not the same, and there should be no confusion and no equivalence between them. The premise of the question is wrong. Government is instituted by the People to protect the Constitution and the rights therein. Corporations are created by charter (of their shareholders/members) and approved by Government to produce a profit for their shareholders or a public good in the case of nonprofit corporations.

sysprog followed with more questions based on false premises: should corporations be subject to criminal and civil liability like natural persons or should only natural persons be subject to them? Should corporations be subject to due process? Am I arguing that corporations have no rights at all?

No, I'm arguing that corporations should have such rights and privileges as are determined by the People to be in the People's interests.

Corporations are created by their charters under the authority and regulation of the Government as the People see fit. There is no inherent or Constitutional protection for them. But that does not mean corporations necessarily have no rights.

It's simple. And this was not at all difficult to fathom prior to 1886 and the headnoted provision of 14th Amendment protections to corporations.

Black letter of the law, people.

Black letter of the law.

Al-Marri

US residents in military brigs? Govt says it's war

By MATT APUZZO, Associated Press Writer

WASHINGTON - If his cell were at Guantanamo Bay, the prisoner would be just one of hundreds of suspected terrorists detained offshore, where the U.S. says the Constitution does not apply.



But Ali Saleh Kahlah al-Marri is a U.S. resident being held in a South Carolina military brig; he is the only enemy combatant held on U.S. soil. That makes his case very different.

Al-Marri's capture six years ago might be the Bush administration's biggest domestic counterterrorism success story. Authorities say he was an al-Qaida sleeper agent living in middle America, researching poisonous gasses and plotting a cyberattack.

That this situation has been going on for six years now, and counting, may come as a surprise to most Americans who remain blithely oblivious to the peril each and every one of them has been in since the Busheviks seized the reins of Imperial Government.

Six years a legal US resident has been held in a military brig without charge?

Indeed.

"Authorities say..." And that's what's at issue here. On the "say so" of The Authorities, including Bush himself, Al-Marri has been held for six years and potentially could be held forever.

To justify holding him, the government claimed a broad interpretation of the president's wartime powers, one that goes beyond warrantless wiretapping or monitoring banking transactions. Government lawyers told federal judges that the president can send the military into any U.S. neighborhood, capture a citizen and hold him in prison without charge, indefinitely.

And you know what? The Government's claim is that anyone can be rounded up and held prisoner without charge, indefinitely.

Anyone. That means you. That means me.

Al-Marri has been designated the test for this radical, unAmerican proposition.

The government says the president needs this power to keep the nation safe. Al-Marri's lawyers say that as long as the president can detain anyone he wants, nobody is safe.

Well, isn't that the truth.

On June 23, 2003, Bush declared al-Marri an enemy combatant, which stripped him of those rights. Bush wrote that al-Marri possessed intelligence vital to protect national security. In his jail cell in Peoria, however, he could refuse to speak with investigators.

A military brig allowed more options. Free from the constraints of civilian law, the military could interrogate al-Marri without a lawyer, detain him without charge and hold him indefinitely. Courts have agreed the president has wide latitude to imprison people captured overseas or caught fighting against the U.S. That is what the prison at Guantanamo Bay in Cuba is for.

But al-Marri was not in Guantanamo Bay.

"The president is not a king and cannot lock people up forever in the United States based on his say-so," said Jonathan Hafetz, a lawyer who represents al-Marri and other detainees. "Today it's Mr. al-Marri. Tomorrow it could be you, a member of your family, someone you know. Once you allow the president to lock people up for years or even life without trial, there's no going back."

Yes. And this is where we are in this nation right now. Most Americans are oblivious to it because this particular perversion of law and the Constitution does not directly affect them right now. Consequently, what happens to this Scary Muslim Man is of no consequence for them, and furthermore there are lawyers arguing the case before a federal court so what's the problem anyway?

Courts have gone back and forth on al-Marri's case as it worked its way through the system. The last decision, a 2-1 ruling by a 4th U.S. Circuit Court of Appeals panel, found that the president had crossed the line and al-Marri must be returned to the civilian court system. Anything else would "alter the constitutional foundations of our Republic," the judges said.

The full appeals court is reviewing that decision and a ruling is expected soon. During arguments last year, government lawyers said the courts should give great deference to the president when the nation is at war.

"What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?" Judge William B. Traxler asked.

"Yes, your honor," Justice Department lawyer Gregory Garre replied.

So. Really. What's the problem? As long as it is just Scary Arabs and Other Morenos, who cares?

One judge questioned why there was such anxiety over the policy. After all, there have been no mass roundups of citizens and no indications the White House is coming for innocent Americans next.

Why fret?

Another judge said the question is not whether the president was generous in his use of power; it is whether the power is constitutional.