But, alas, I’m a Soul-Proprietor

Those few parts of the Realm of the Weblogs that I still visit have thus far been pretty quiet regarding yesterday’s significant, if not already-blown-out-of-proportion, SCotUS decision in Citizens United v. FEC. (The Extraordinary Mark, unsurprisingly, comes down in favor of it.) Consequently, I haven’t found too many outlets for expressing my opinion (save Facebook conversations), so here I am, after a too-long hiatus, engaging in all the self-absorption that the personal Weblog permits.

Perhaps needless to say, despite my occasional libertarian leanings and rule-of-law-based reluctant Constitutionalism, the predominant front-porch republican strain in me immediately anathematizes the Court’s decision. Given the ease with which corporations ably circumvent what restrictions heretofore existed (as ably noted in an unsettlingly almost-persuasive defense of the decision by Glenn Greenwald), fears that this decision in any way really changes matters in practice are probably exaggerated, but I, nonetheless, worry about to what the messages that this decision send, however quietly they will reverberate in a nation of acquiescent sycophants and myopic, long-term-memory-challenged “activists”, will amount.

First, it is a First-Amendment issue, at least as “freedom of speech” has come to be understood and to be applied to “corporate persons” as well as to ensouled people. Accepting this — and further acknowledging that the wording of the First Amendment says nothing about to whom the freedom of speech belongs (“Originalism”, I suspect, provides an answer, but not one that “conservative” “originalists” presently on the Court would likely wish to entertain. See below.) —, I have to raise the predictable question about equating money with speech, or, rather, designating spending money as a form of speech. Specifically, my concern lies with equality, the equality of liberty. (Greenwald, again, makes a discomfortingly almost-persuasive case for money as speech.)

The reality is that “the average corporation” — “the small business: the dentist, daycare operator, or grocery store owner who has incorporated due to the nature of our litigious society”, as asserted by an ardently Republican good friend of mine — is not the average corporation financially able to “say” anything loudly enough and frequently enough to get things done. That being the case, doesn’t this still decision still warp freedom of speech, subjecting it to the market? That is, instead of an equally possessed right, the freedom of corporate (political) speech is something afforded more to those who have money than to those who lack it. (Problematically, we must address this same issue when we consider individual expenditures comprising political “speech”(; more on this, as a matter of principle, below). Practically speaking, the decisive factor seems to me to be that corporate influence tends, as a matter of finances, to be much more effective than individual campaign contributions, and that matters relating to economy of scale permit the large corporate entity to out”speak” the small businessmen more effectively than the wealthy individual can the small-money campaign donor. (Also, money-bombing seems to have shown that en masse, small-time donors can make a big splash, even if their recipients ultimately fail to gain sufficient traction to upend the political Establishment.) This seems to be either a rejection of soi-disant conservatives’ preference for “equality of opportunity”, or one hell of a reductionist stretch of said principle.

Now, on to a meatier point, returning to the more foundational question of corporate personhood. I have a serious problem with the precedent set, directly or not, by Santa Clara, fully detesting the very notion that anything other than an ensouled, free-will-possessing human is a person. But even accepting that, I am troubled by the theoretical threat to federalism that rulings of this nature — and, admittedly, the very notion of corporate personhood that I’m begrudgingly accepting as precedent — present. Allow me, no Constitutional-law scholar (and thus willing to be corrected, or supported, by someone better versed in the field) to demonstrate.

A corporation exists because it is chartered by a State government. That is, it is a beast of the State’s creation, which intuitively suggests that the State ought to be able to regulate it as it sees fit. So perhaps the Citizens United decision is the right one, prima facie, because it’s stripping the federal government of regulatory power properly left to the States(; we’ll leave aside implicit questions about inter-State commerce). However, by virtue of the Fourteenth Amendment (regarding which the SCotUS originally granted personhood to corporations (“Judicial legislation”?)), the State loses the right to regulate what it has created because the federal court has deemed this chartered — rather than incarnate — “person” to be worthy of Constitutional protections that, through the Incorporation Doctrine, the State must now honor. It may not be an obviously direct ramification of Santa Clara, Citizens United, et cetera, but it seems to me to be a legitimate cause for concern.

Then again, the Constitution was our first, worst mistake, an inherently centralizing document for the large, commercial republic, endorsed by the sorts for whom talk of the States was mere pretense.

In the comment section of an exceptional post of his at Front Porch Republic, John Médaille has this to say:

[T]he Supremes were merely recognizing an established fact: that the government of the United States is a wholly owned and operated subsidary of corporate America. Why should the plutocracy be limited in the amount of money they spend in supporting their employees? What the Supremes did was to reveal how little they cared for “original intent,” since the founders never intended to give corporations the rights of natural persons.

And via Ted Chan, this:

Today’s structure of law gives corporations a spectrum of legal and constitutional rights which they routinely wield against people, communities, and nature. Corporations have more rights, for example, than the communities in which they seek to do business. They can and do use those rights to lobby Congress, impact elections, and to decide for us what we eat, whether mountaintops are blown off or not, whether there are fish in the oceans, and on and on. Their constitutional and other legal rights, together with their wealth, guarantee that they can define the debates that lead to the adoption of new laws—and often write the laws themselves.

Update: John Médaille offers his thoughts here:

All CU wanted was for the court to bless their end-run around the campaign laws. Corporate contributions were not an issue in the case, and not part of the relief that plaintiffs were seeking. But for some unknown reasons, the court decided to re-hear the case on grounds that had nothing to do with the plaintiffs plea. The rehearing was peculiar, not only in widening the grounds of the case beyond the issues that were placed before it, but in ordering the rehearing for September 9th, a full month before the court’s session normally began. This seems to indicate some undue haste in deciding so pivotal an issue. One is tempted to think that the majority wanted this issue decided in time to dismantle the current laws in advance of the coming congressional elections. One is permitted to ask here whether the court’s agenda is judicial or political.

In ruling on the issues presented to it, the court upheld the FEC against CU. But on the issues that were no part of the original case, they voluntarily threw out restrictions against corporate funding of campaigns, restrictions that date back to 1907 and have been upheld by every court since then, in test after test. They have, at a stroke, undone 100 years of legislation and judicial precedent. This is not evolution, but revolution, and a revolution predicated on some very peculiar grounds.

The majority of the court treated this as a “free speech” case. Yet, this is somewhat perplexing. As far as I know, CEOs have always had the right to say whatever they liked, to support whatever candidate they wanted, to go to whatever rallies they wished, and to write letters to the editor whenever they felt the need. That is, they enjoyed all the rights of free speech that every other citizen has. As far as I can recall, there are very few corporate executives in prison for expressing their opinions. The court, however, was not interested in the rights of the executives, but in the rights of the corporations as “legal persons” endowed with all the rights of natural persons. This is a rather peculiar doctrine that originated in another example of legislating from the bench, Santa Clara County v. Southern Pacific (1886), which granted “personhood” to corporations. This rule was a complete overturning not only of the court’s previous rulings, but of the long history of corporation law dating back to the Middle Ages.


The Maryland Corner: “Redeeming Roger Taney”

(from the forthcoming issue of The Terrapin Times, the first installment of our new feature, dedicated to important political figures, past and present, on the Right from Maryland, tentatively called The Maryland Corner)

Americans have a way of spinning history to bolster our national mythology. JFK’s foreign policy was nightmarish — to speak nothing of his personal life —, yet we extol him. FDR attempted to pack the Supreme Court, interned Japanese-Americans in numbers that dwarf the count of unfortunate souls at Guantánamo, and eagerly collaborated with the murderous Stalin, but idolizing him as the conqueror of the Depression and scourge of the Axis powers is much more palatable than embracing the truth. 

Then there is Abraham Lincoln. Ignoring that he needlessly sanctioned the bloodiest war in American history and put the kibosh on the important question of whether states, sovereign when they entered into the great experiment in liberty, could secede and reassert their autonomy, we revere the sixteenth president as a great liberator, the savior of the Union. We relegate Maryland native and Lincoln antagonist Chief Justice Roger B. Taney to the deepest pits of Hell for his opinion in Dred Scott v. Sanford.

Yet, ironically, as we begin at least four years under our first Black president, a man esteemed as the new Lincoln, we ought to look for inspiration to no less a man than the estimable author of that loathsome Dred Scott decision.

Roger Brooke Taney, of Calvert County, was hardly perfect; he was, however, more complex than many would care to admit. His opining that Blacks were “beings of an inferior order, and altogether unfit to associate with the white race,” and thus ineligible for citizenship, is detestable. Nevertheless, he had personal qualms with the “peculiar institution,” and manumitted his own slaves. A dual-federalist, he stood firmly between ardent states’ rights champions and the advocates of centralization, proud of his Southern heritage and a lover of Maryland, but a loyal American who sought the preservation of the Union. 

Most important today, as our government continues to expropriate powers at the cost of our God-given liberties, Taney stood up to Lincoln’s antipathetic attitude toward the Constitution. After the mayor of Baltimore and governor of Maryland, to the president’s consternation, proclaimed that they would permit no more Union troops to transfer through their respective jurisdictions, Lincoln instructed General Scott to suspend the writ of habeas corpus within the area of the military line. 

Obeying the governor’s orders, Lt. John Merryman, of the Baltimore County Horse Guards, burned bridges to prevent additional Pennsylvania soldiers from entering Maryland; not long thereafter, he was arrested on charges of treason. Numerous Maryland legislators soon found themselves incarcerated for no obvious reason. 

Enter Roger Taney. Presiding over the U.S. Circuit Court for the District of Maryland, Taney, in Ex parte Merryman, reaffirmed that the president lacks authority to suspend the writ of habeas corpus — a power expressly delegated to Congress in Article I of the Constitution. A defiant Lincoln persisted, widening the scope of the territory wherein the writ was held in abeyance. Employing arguments frightfully comparable to — but exceedingly more eloquent than — those to which we have grown accustomed in this tumultuous decade, Lincoln asked rhetorically of Congress, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Orwellian reverence for the rule of law at its finest.

Taney’s comprehension of liberty was incomplete, perhaps unforgivably so. That President Obama intends to try to suspend the writ of habeas corpus is dubious. However, given Obama’s vision for expanding government’s role in the economy, embrace of the Pax Americana ideology, and, more relevant, support for the USA PATRIOT Act and the FISA “compromise,” one is right to fear for his liberty. If we look beyond his imperfections, in Roger Taney we see a Marylander of whom we should be proud and whose spirited defense of the Constitution we should aspire to mimic. 

“Why Obama Will Be Worse Than Bush”

Yep, it’s already being said! I’m not, yet, convinced that I agree — throughout the campaign, I remained confident that McCain (even if, in the words of Scott McConnell, “Wilsonian bellicosity has visceral appeal for him”) and Obama, both, marked improvement from the six years of disastrous governance under the right branch of the War Party and two additional years in which the two branches shared, and battled for, power in a pissing contest to see whose sinking into moral depravity could occur more grandly than James Cameron’s RMS Titanic. William Norman Grigg, however, offers a distressingly plausible case.

Barack Obama, a one-time professor of constitutional law, has famously criticized the Constitution for defining liberty in terms of “negative” liberties – meaning protections against various forms of state action. This is a hoary truism often invoked in theories of Constitutional law that were rooted in Marxism and nurtured by the federal government’s post-New Deal demand for legal apologists and executors. [He also believes that the Constitution permits a woman to murder her unborn child under the guise of “privacy” but contends that privacy hardly suffices to protect us from wiretaps. – NPO]

Obama, speaking as a state legislator in a recently discovered and inadequately publicized 2001 radio interview, observed that the civil rights revolution of the 1960s sought to overcome this “negative” concept of liberties, but was too wedded to the idea of pursuing its social revolution through the courts.

As he pointed out, “[T]he Supreme Court never ventured into the issues of redistribution of wealth, and the more basic issues of political and economic justice in this society…. [O]ne of the, I think, tragedies of the civil rights movement was, because the civil rights movement became so court-focused, I think there was a tendency to lose track of the community organizing and activities on the ground that are able to put together the actual coalitions of power through which to bring about redistributive change. And in some ways we still suffer from that.” [Grigg’s emphasis. – NPO]

Terrified yet? The always perspicacious Professor Deneen, though not without reservations, is exceedingly more hopeful. I tend to lean more toward Grigg than Deneen on this one, but, boy howdy, I hope that the good professor turns out to be right on this one, for everyone’s sake.

The Ron Paul Interview

On Monday morning, 13 October, I spoke with Congressman Ron Paul for about eighteen minutes. Find hereunder the edited transcript of that conversation, which I intend to publish in the forthcoming late-October pre-election issue of The Terrapin Times

NPO: I want this paper not just to offer commentary, but to have an intellectual tone to it, so I’d like to get your thoughts on a couple of American Founding Fathers to whom you suggest the conservative or libertarian really concerned with Constitutional issues might turn.

RP: Well, I like Samuel Adams. He was an intellectual behind it and he agitated and wrote about it, so I admire him, but I like all of them to some degree, some of them a lot more than others. 

Just the other day, on one of our news interviews, Steve Forbes was bragging that if only Hamilton were here, he’d love what we’re doing.

NPO: Yeah, I think he probably would.

RP: He was saying Hamilton would endorse what he was saying, so I had the chance to answer back. I said, “Well, if Jefferson were here, he would probably endorse what I’m saying.”

NPO: I think you’re right.

RP: Jefferson, of course, there’s a lot to admire about what he said, and I think the whole atmosphere then, of overthrowing the king and tyranny and giving us not a perfect, or the best, document, that unfortunately has not been followed, but —–

NPO: No, it hasn’t.

RP: We can look to that period of time as being pretty significant in human history.

NPO: Okay, I want to play up on something that you just said. Now I don’t think anyone in our government more faithfully defends the Constitution than you. Is that because you believe that it is right; because it is the document given to us, and even if imperfect, it’s what we have; or somewhere in the middle?

RP: I think it’s the respect for the rule of law. I’m interested in having rigid restraints on the government and the Constitution was written not to restrain us but to restrain government. I see the imperfections; early on there were more than now, especially when it came to slavery. It’s still an imperfect document, but it’s reasonably well written.

There’s a need to adapt to current times and the possibility is there. People get frustrated and they say it’s too slow. The other side always argues, “Well these times are different, they’re modern, and it has to be a living document.” We say, “Sure, you’re right. There’s a way to do this: You amend it.” What they’re frustrated about is the slowness of it, but what they do is throw everything out. I’m more concerned about that than defending every line in the document.

Some of the things in the Constitution could probably be written better today. The Second Amendment could be a lot more explicit; it’s hard for me to understand why some of these debates come up, but maybe, if it were written a little bit differently, we’d argue a lot less about it.

I think the most important thing is the rule of law and that people follow the law and not do what they want today, whether it’s the executive branch, legislative branch, or judicial branch. I think they have essentially no respect for the Constitution. 

NPO: Okay, two more quick Constitutional questions. First, other than the Sixteenth Amendment, do any Amendments strike you a being particularly disconnected from the vision of the Founding Fathers?

RP: The Seventeenth is one. That introduced the notion that the states could be undermined. Senators had been elected by the legislatures to represent the states’ interests. It was recognized that the states were independent and needed protection; they were to stand up to the federal government and represent their individual states. I favor repealing it.

NPO: And the last one: Obviously, the Civil War essentially ended this debate, but what do you think of secession as a Constitutional issue? The Second Vermont Republic generally polls about thirteen percent; there’s a lot of talk about it in Cascadia; even Minnesota has the North Star Republic group. 

RP: In a free society, when certain groups came together, like the Colonies, it was assumed that if you came together voluntarily, then you could leave voluntarily. In the early part of our history, I think it was understood. That‘s one area where we could make the Constitution explicit. Think of how restrained the federal government would be if they knew that a state could just leave. I believe in the principle of secession. It has been part of our system that has been knocked out of us, especially since the Civil War, but we’re completely inconsistent internationally. Now we go and bomb and kill people from a country like —–

NPO: Kosovo?

RP: Like Kosovo. We allow them, and defend their secession, and at the same time we have no sympathy at all for Abkhazia and South Ossetia. I think that principle, self-determination, we should defend.

NPO: Then the one gotcha question, as Sarah Palin has come to call it, of the interview. What happens if, tomorrow, the people of Texas vote overwhelmingly, fed up with the American government, to secede and to re-establish the Lone Star Republic? How do you, as a Texan and a congressman, react to that?

RP: Cautiously. 

NPO: Good answer.

RP: If that were the majority opinion and we were able to, I think it would be great, but I’m cautious, because I know that our state officers aren’t necessarily going to protect my personal liberties a whole lot better right now. It’s a system we’re up against. We might have even more state regulations. We have this whole idea that even our cities tell us everything we can do with our own property. We have too many regulations and very little respect for private property. But I think the smaller the unit of government, the better.

NPO: Now I’d like to talk a little bit about the movement — the liberty movement, the Campaign for Liberty, the Ron Paul Revolution. We saw, the other night in the Comcast Center, five candidates whom you endorse, Republicans in Maryland who support liberty. Has the GOP a future, with or without this type of politician?

RP: Well, if they do, it will be in spite of themselves; that was a good example. We have five Republican candidates who went through the process, ran in the primaries, and became their nominees. We plan a rally, and the Republican Party on the campus claim they’re going to help us and invite all the Republican students, and then they back out of it. It’s destructive. My guess is that they got word from higher up, whether it was the state party or the McCain people, and they said, “Hold up.”

If we were all socialists, you might understand if they said, “Wow, you guys have strayed too far”, but what did we do? We’ve defended what Republicans claim they believe in: limited government, free markets, private property, balanced budgets, and low taxes, and they don’t want anything to do with this. It’s strict Constitutionalism. If they continue to do that, they’re going to self-destruct, because they can’t do it without young people coming into it. Our campaign rallied as many young people as any Republican has in a long time.

NPO: Right.

RP: It scares them to death, but I think it’s the old guard. They don’t want to give up control. What are they going to have to guard? There won’t be much of a party left if they don’t welcome new people into it.

NPO: You’ve attracted a lot of support from the Left, as well as the Right. Before you officially endorsed Pastor Baldwin, you brought him, Ralph Nader, and Cynthia McKinney on stage and offered the don’t-vote-for-the-major parties endorsement. Do you think that, if not in the GOP, the future is in these left-right coalitions, even if they’re only short term, when we look at where we have common ground, rather than where we differ?

RP: It might be. And, you know, there are lot of Democrats — sometimes we assume that all Democrats tend to be overly socialistic. 

NPO: Bob Conley’s a great example of —– 

RP: Yeah. 

NPO: Of that sort you’re talking about. 

RP: Some Democrats do believe in the marketplace and — who knows? — it may be easier to build it with the Democrats, because there’s a tendency for them to be better on civil liberties and being anti-war.

NPO: Except for Barack Obama.

RP: Haha, yeah, that won’t work. 

I think that we need more Conleys joining the Democrats; it’s a philosophic struggle, not a partisan struggle. I’ll work with anyone; I want to bring those people together and worry about the other issues later. On the big issues, we should come together. 

NPO: Can we possibly, in our current state, recover from the Wall Street welfare that we’re witnessing right now?

RP: Yeah, but it’s going to be difficult if we continue to do what we’re doing. We’re going to go downhill until they throw in the towel and say, “You can’t just print money to solve they problem.” They’re destined to destroy the dollar if they keep creating new money and credit. What comes out of this depends on whether we come to our senses.

Right now, it doesn’t look too good in Washington, but outside of Washington, I’ve been encouraged to see these tens of thousands of young people listening to the message of freedom. People are paying attention to us because they know that things aren’t working. We’re not on the horizon of a victory, but I think that we’re going to hold our own, and there’s every reason to believe it’s worth the effort.

NPO: Okay. 

You believe that we need to withdraw our troops from Iraq; I do, too. Something that has bothered me is how we exit that country morally justified after leaving it in shambles. Hussein was a terrible leader, but at least stability existed. We have turned Iraq into a quagmire; we have made it possible for al-Qaeda to work there. How do we find an answer that gets us out of there, where we don’t belong, and doesn’t leave the people of Iraq worse off?


RP: I believe that Iraq will be better off. Maybe not immediately, but they used that argument in then 1960s: If we ever left Vietnam, the Soviets or Chinese would take over, and they’d be Communists forever. Well, we left and there was a bit of chaos, because we and the French had been ruining their country for twenty years. Stopping the killing never can be a bad idea. Just stop the killing and leave and let the people of the country take care of it. Let the Iraqis have their country back again; it may well be a lot better than anything we ever dreamed of. 

Continuing to do the wrong thing, to do things that are immoral and against the Constitution, that we cannot afford, doesn’t make any sense whatsoever. The good has to come by changing that policy, although there may be a short period where there may be some realignments. They would be better off, and we’ll be better off. We have to leave anyway, because we’re going broke and can’t afford it. We might as well do it under a calmer set of circumstances, rather than waiting until we’re running, panicking, and trying to get out.

NPO: Okay.

That’s about all I have. Anything that you’d like to finish this off with, anything to speak to the readership that we’re going to have at this paper?

RP: If young people read and study why freedom works and why the market works and why we don’t need the income tax or the Fed — if they read it and understand it and promote those ideas — things will change. The next generation, they’re the ones that really can make the difference.

NPO: Okay. Whom should they read? 

RP: The Law by Bastiat. Any book by Murray Rothbard, especially The Great Depression and What Has the Government Done to Our Money? A little more in depth, Mises on Austrian economics. I would certainly recommend the Mises Institute to find the books that would be very valuable for everybody.  Another book, Hayek’s book, influenced me a lot, The Road to Serfdom. That was one of the first books I read on economics.

NPO: Thank you so very much, Dr. Paul.

RP: Thank you.

More on Röpke: Foreseeing the Wal*Mart-welfare state

We can see similar contentions in Belloc, and I’m sure that, somewhere, Hayek provides an argument of such nature in The Road to Serfdorm (on my bookshelf, but, I, shamefully, admit, unread). Röpke is spot-on:

[T]he welfare state itself takes care of a sort of comfortable stall-feeding of the domesticated masses[.] Is this not bound to work to the benefit precisely of existing large firms?
– Röpke, A Humane Economy, “Welfare State and Chronic Inflation”, page one hundred and seventy

Benefit precisely of existing large firms”:

In 2004, a study released the UC Berkeley Labor Center found that “reliance by Wal-Mart workers on public assistance programs in California comes at a cost to taxpayers of an estimated $86 million annually; this is comprised* of $32 million in health related expenses and $54 million in other assistance.

Need I to adduce anything else to demonstrate the clear distinction between a free market and what we call capitalism, which Chesterton aptly called the presence of too few, rather than too many, capitalists? I think not.

*Is this really so hard to get right?