Monday, November 21, 2011

A Twenty-Eighth Amendment

It’s been a while since we’ve amended the Constitution, so it’s probably time to re-visit the issue.

You may think – we did -- that the last amendment was the Twenty-Sixth, which set the national voting age at 18. This amendment was also the quickest to pass; the amendment was introduced on March 23rd, 1971 and was adopted on July 1st of the same year, a scant three months and one week later.

A key driver for the amendment was the inequity in demanding men (and at that time they were only men) to fight, and quite possibly die, for their country when they couldn’t participate in the political process. Forty-two states ratified the amendment – so which states didn’t?

We pause briefly to allow the placing of side bets.

The eight states which never ratified the Twenty-Sixth Amendment are:

1.     Florida
2.     Kentucky
3.     Mississippi
4.     Nevada
5.     New Mexico
6.     North Dakota
7.     South Dakota
8.     Utah

With the exception of New Mexico, I don’t think there are a lot of surprises in that list.

So the quick lesson here is that, in times of crisis, an amendment can get adopted, and get adopted pretty quickly. It’s not some mystical thing that was only possible in days of yore.

But the Twenty-Sixth isn’t the most recent; that title goes to the Twenty-Seventh Amendment, which passed in 1992.

The Twenty-Seventh is kind of a lesser amendment; it basically prevents Congress from voting to give itself raises right now. Instead, any raise would be delayed to the start of the next Congress, imposing a delay of up to two years.

At the end of the day – meh. Congress still votes itself raises, but I don’t think too many people think that the money problem in Congress is salaries. The money problem has to do with lobbyists and campaign contributions. But the amendment doesn’t really have a downside, so there you go.

What is incredibly interesting is that the amendment was passed in significant part due to the efforts of one dude – Gregory Watson. The short version is that Watson, while doing research for a college paper, came across the text of what became the Twenty-Seventh Amendment, which was originally introduced in 1789 – it was part of a package of twelve amendments, ten of which were ratified (and became known as the Bill of Rights). But only seven states passed it, so it was dropped and forgotten about for 200 years. Until Gregory Watson re-discovered it and started a letter-writing campaign to get it passed.

So kudos to Gregory, kudos to letter-writing and kudos to democracy in action! Sometime, it’s easier than you think.

So now that we’ve established that amendments are still a viable form of democracy, what should we be thinking about. Fortunately, this Supreme Court has given us a lot of fodder. And, unlike the Twenty-Seventh, the Twenty-Eighth Amendment can focus on some key inequalities in modern life – just the thing the 99% should get behind.

Here, then, is a draft of my proposal for the Twenty-Eighth Amendment.

            Corporations aren’t people. Chicks are.

The origins for this amendment lie in two places. The first is the decision in Citizens United v. Federal Election Committee, which ruled – and what follows is a very simple summary – that corporations can contribute as much as they want to elections.

That decision rested on two separate ideas.

The first is the idea that restrictions on spending money can be equated with restrictions on speech, a decision the court reached in 1976 in Buckley v. Valeo. The court actually upheld general campaign contributions limits, but voided those which would apply to the candidates themselves.  (It’s worth nothing that the court shied away from the money = speech equation when it applied it to non-rich folk, namely the Hare Krishnas.)

The second is the idea of corporate personhood. While it is obvious that corporations aren’t people, they need to have some legal status – so that contracts can be enforceable and the like. Corporations can do some of things people do, mostly in the economic sphere. They can, as we noted, make payments, issue payments, act negligently and engage in other tortuous behavior. But they can’t get married, settle down together and have kids. Historically, the courts have used an idea of corporate personhood.

The fundamental question is what legal rights and privileges corporations should enjoy, and which should be restricted to natural persons.

But before we get to that discussion, let’s take a look at one of the privileges which corporations enjoy but that humans can’t – namely, limited liability.  If I go into business for myself – as an individual – I am on the hook for all liabilities. But if I create an artificial person – a corporation – my personal liability is limited to the amount of capital I contribute to the corporation. After that, I'm off scot-free.

This is what protects someone like Dick Fuld, the former president and C.E.O. of Lehman Brothers. Fuld had a net worth in excess of $1 billion, most of which was lost when Lehman became the largest bankruptcy case in history. But he retained all the proceeds from all of the sales of Lehman stock he ever made, and that was good enjoy to buy an estate in Connecticut, a Fifth Avenue apartment and Florida pied-à-terre worth $13 million. Plus $20 million in artwork and whatever other investments he made. Because of limited liability, those assets cannot be seized as part of the Lehman bankruptcy, and Fuld remains part of the 1%.

We think, on the whole, limited liability for corporations is a good thing, even though cases like Fuld’s do rankle.

But limited liability – a privilege which no natural person can enjoy – should come at a price. And that price is the loss of all constitutional right and privileges.

This may sound harsh, but remember that no natural person will be affected. Each and every natural person will continue to enjoy the protections of the First, Fifth and Fourteenth Amendments, to name the big ones. It will only be artificial persons – corporations – that are affected. 

If our Twenty-Eighth Amendment were passed, Congress could ban all corporate donations and restrict all corporate speech, including political speech a.k.a. money. This wouldn’t make our political system perfect – Dahlia Lithwick has an excellent article on a whole bunch of other cases that should be of interest to #OWS --but it would remove the distorting impact direct corporate contributions would make. And, if Congress were feeling frisky, it could ban corporate contributions to PACs, which really might have an effect on politics is conducted.

That takes care of the first sentence of the Twenty-Eighth Amendment. But what about the second, which declares, in the colloquial, that women are persons.

While the Equal Rights Amendment would have taken care of this problem, it was never ratified. Here is a list of states which haven't signed on.

  1. Alabama
  2. Arizona
  3. Arkansas
  4. Florida
  5. Georgia
  6. Illinois
  7. Louisiana
  8. Mississippi
  9. Missouri
  10. Nevada
  11. North Carolina
  12. Oklahoma
  13. South Carolina
  14. Utah
  15. Virginia

The states in bold are those which were part of the Confederacy.  In fact, of the eleven Confederate states, only Texas and Tennessee ended up voting for the ERA. Just sayin’.

The relevant part of the Fourteenth Amendment looks pretty straight forward: 
[No] State [may] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But to some Supreme Court Justices, that’s not enough. Antonin Scalia was interviewed by California Lawyer in January of this year, where this exchange took place:

[CaliLawyer:] In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

[Scalia:]  Yes, yes. Sorry to tell you that.

For those who call themselves originalists, what matters most is what the guys (and it was all guys) who adopted the stuff thought at the time. And Scalia believes that, in 1868, the various elected representatives would not have thought women to be considered people. After all, they had just fought a rather nasty war over whether black people were, you know, people.

And this is how we end up in this mess where a remarkably banal idea – that women are people -- is rejected, while a counter-intuitive one – corporations, while obviously not people, should have the rights and privileges of people (e.g., making political donations) while being afforded protections (limited liability) that no natural person can enjoy.

So our version of the Twenty-Eighth Amendment would fix two problems at once. Corporations can continue to exist, but they don’t get treated like people (even though they think they’re people, which is adorable). And women, a scant 143 years after the passage of the Fourteenth Amendment, would actually be covered by it.


While we strongly support our version of the Twenty-Eighth Amendment as being necessary, pithy and a bit of fun, we should note that Sen. Tom Udall has introduced his own version. His is longer, and a lot more gentle, just allowing federal and state governments to restrict the campaign contributions of both natural and artificial persons. So, while he does nothing to address the treatment of women under the Constitution, he does tackle campaign reform in a more complete way. And his amendment has a total of nine co-sponsors, which is nine co-sponsors more than ours does.

Edited for clarity.

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