I can claim that the second amendment wouldn’t have passed if its authors had thought it would someday apply to automatic weapons. But it was enacted and now that it’s in effect I think it applies to the current definition of “arms” not the 18th century definition. The same principle should apply to the rest of the Constitution. When it gives rights to a “person” we should use the modern definition of who a person is, not whatever historical definition may have applied when the text was written.
So while I feel that the absolute right of individual ownership of firearms is a bad idea, it’s what the law says. If I had been a Justice, I’d have sided with Scalia on Heller and McDonald. Unlike him, I can distinguish between what the law is and what I wish the law to be.
Scalia’s reasoning was ridiculous. People have rights not objects. Speech doesn’t have a right to be spoken, guns don’t have a right to be owned, and houses don’t have a right to remain unquartered. Scalia once again invented something - the idea that speech itself has a right - in order to justify extending freedom of speech beyond people.
If the government can stop corporate speech, they can stop the speech of the individuals that make up that corporation. Interference with corporate speech is interference with the speech of the people that make up the corporation.
Also, if a person takes a originalist view, the Bill of Rights, despite their name, are more about structure than individual rights. The framers would not have seen the Bill of Rights as a grant of rights to individuals. Individual already had these rights (either from the creator or nature). The Bill of Rights acted as a bar to federal government doing certain things that could infer with the rights that individuals already had.
Finally, if you take the position that the Bill of Rights only applies to individual human beings, then the New York Times has no right to freedom of speech or the press, which makes no sense.
There is such irony in discussions of how forever predominately male Justices determine the rights of females. And the same holds true for the forever predominately male members of Congress who make the laws and the all male creators of the unammended Constitution.
Agreed. But even at the time of the 14th amendment, there was no debate that women, blacks, Indians, or Chinese people were “persons.” Even the most vile racist in the country would have admitted that fact.
What I keep coming back to is the modern thought behind the equal protection clause in the 14th amendment that it basically outlaws ALL distinctions between people when you are referring to a favored group like race. It is strict scrutiny for ANY law that deals with race, intermediate scrutiny for gender, etc.
And I contend that the language in section 2 makes this whole line of thought absurdly wrong. The drafters of the amendment not only contemplated, but clearly outlined a method in which a state could treat blacks and women VERY unequal in the eyes of the law, and they didn’t think it in violation of section 1 right above it.
I understand, John Mace, that it was a compromise to get the amendment passed, but to agree with your interpretation, section 2 should begin with a qualifier like “Notwithstanding section 1” or “Nothing in section 1 shall be construed to…” As it is written it seems to dismiss as not worth mentioning the idea that “equal protection” means no laws which distinguish based on race or sex.
That makes no sense. If you follow that argument, then you can claim that people who do not work for a corporation have no freedom of speech. Obviously, that’s not the case. People have rights as individuals not based on who their employer is.
The Bill of Rights wasn’t granting these rights. It was recognizing their existence. And most of those rights were individual rights.
Again, your argument doesn’t work. The people who publish the New York Times and the people who write for the New York Times have the right of a free press. The press itself doesn’t have any rights.
How? The point is that speech cannot get restricted no matter how the speaker choices to speak. He can speak as an individual or as a part of a group.
The Times’ speech is protected by the 1st amendment. If it wasn’t, the government the government could shut down the paper and force the individuals to publish as individuals. The individuals that make the times have right come together as a corporation and speak as a corporation–they could also come together as a partnership or some type of group.
If a corporation is equivalent to a person in granting the protections of the constitution then does the constitution protect foreigners?
The above is one of the clearest examples of why a corporation is not equivalent to a person and not deserving of the same protections under the constitution.
Scalia said:
Seems that’s what we did when it came to corporate speech and here we have a superannuated judge impose his demands on society.
I have no idea how. You were the one who made the claim. I was the one who said it your claim made no sense.
If the government shut down the Times, it would be restricting the speech of the people who write in it. But the newspaper itself would not have any claim. People have rights - not newspapers or corporations or partnerships.
And Whack-a-Mole makes a good point. Non-Americans can acquire ownership of an American corporation. By Scalia’s interpretation of the law that means they can acquire the rights of an American citizen without being an American citizen.
You claimed that the result of following the argument that I presented would be free speech rights only for people that work at corporations. I want to know how this result follows from the argument that I presented.
That is not an accurate representation of the law. Read New York Times Co. v. Sullivan. Or read New York Times Co. v. The United States.
The government cannot restrict the speech of non-American either. It they could, they could ban the works or Ian Ewan or Richard Dawkins. They could block any foreign website. The government cannot do these things.
You claim that denying the right to free speech to a corporation would deny that right to the people who worked for the corporation. (“If the government can stop corporate speech, they can stop the speech of the individuals that make up that corporation.”) The only way that would happen would be if the rights of the people were part of their employment.
If people hold the right to free speech than it’s unrelated to their employment. Corporate employees have the right. Independant businessman have the right. Unemployed people have the right. The right is inherent in them being a person, not derived from some corporation.
I never said the right was derived from being a part of the corporation–the point is the government cannot restrict speech whether that speech comes from a citizen, a foreigner, a corporation, or a partnership.
A limit on corporate speech is limit on individuals’ speech. If the government blocks corporate speech, the government is blocking the speech of the individuals that make up that corporation. Sure the individuals could still speak as individuals, but they can no longer speak as corporation. Going back to the Times: if the Times’ speech can be blocked, the individuals could speak on their own, but that is not want they want to do. They want to speak as the Times. If the government could block corporate speech, they could ban all editorials signed by the Times.
Do you think the government should be able to block corporate speech and force the members of the corporation to speak as individuals? Do you think the government can block the speech of non-citizens? Do you think it would be a good thing if the government could do these things?
Free speech is not an absolute freedom. It is circumscribed in many ways (can’t shout fire in a crowded theater, slander/libel, hate speech and so on).
A group who comes together for an explicit purpose such as, say, advancing gun owner rights is fine. That’s what they do. I doubt the people who belong to the NRA want to see the NRA get involved in the abortion debate though and would be rightly angry if they did. If they want to advance their side of the abortion debate there are other groups.
A company who makes widgets however does not speak for its stock owners on almost any subject. They are there to make widgets. By granting unfettered free speech rights to a corporation they have diminished my right to free speech. I cannot compete with Exxon when it comes to being able to throw money into campaign messages. Further, if I were a stock owner in Exxon, they are not necessarily representing my ideals. Nor are they representative of their employees (necessarily). Exxon does not poll its shareholders or employees to determine its message. Its message is dictated by a very few at the top who leverage the resources of a company to get the message they want out.
The company is not an individual. It is not me. It does not speak for me.
As in the past with other constitutional rights the courts recognize they are not absolute and reasonable restrictions can be placed upon them. Restricting corporations in this respect was fine. In all the time they were restricted I never heard of one case that displayed the horrors of a censored company. In order to lend my voice more strength (and that of every citizen) these restrictions were fine.
It certainly is a limit. It limits the individuals’ ability to speak as a corporation. You might think the limitation is justified, but it is still a limitation.
Edit - You also have not withdrawn or defended your claim that Scalia extended personhood to corporations in Citizens. As I earlier noted, Scalia does not even mention corporate personhood in Citizens.
Since I am not an originalist, I do not care about the founder’s intentions. But, there is no evidence that the founders thought people’s right to freedom of speech only included the right to speak as an individual and not as part of a group. Why wouldn’t the right to freedom of speech also include the right to speak in association with others? Part of the first amendment is the right to assemble and petition the government. The inclusion of the freedom of assembly suggests that founders considered it important to allow people to act as both individuals and in groups.
Further, I don’t want want to go back to founder’s idea of free speech. The founders probably only saw freedom of speech as freedom from prior restraint. It is far from clear that founders thought the first amendment abolished the crime of seditious libel. States that had provisions similar to the first amendment at the time the first amendment was passed still allowed prosecutions for seditious libel. The founders likely did not understand the first amendment to outlaw blasphemy. The founders would not have seen the first amendment as providing the protection from obscenity prosecutions that it does today.
And it would be a terrible policy to allow restriction of corporate speech. It would allow the government to restrict the New York Times’ speech and force all members of Times to speak as individuals.
You need to read the First Amendmentagain. The freedom of the press is specifically protected, independent of individual freedom of expression. Nice try though.