But what if he's not. What if all of this success is not accidental. What if he actually knows what he's doing, and all of this chaos is actually part of his plan. Yonatan Zunger, a principal engineer (and former theoretical physicist) at Google, has written a thorough, sober and well-researched essay exploring that question, and the conclusion he reaches is really scary.
I see a few key patterns here. First, the decision to first block, and then allow, green card holders was meant to create chaos and pull out opposition; they never intended to hold it for too long. It wouldn’t surprise me if the goal is to create “resistance fatigue,” to get Americans to the point where they’re more likely to say “Oh, another protest? Don’t you guys ever stop?” relatively quickly.
...
Note also the most frightening escalation last night was that the DHS made it fairly clear that they did not feel bound to obey any court orders. CBP continued to deny all access to counsel, detain people, and deport them in direct contravention to the court’s order, citing “upper management,” and the DHS made a formal (but confusing) statement that they would continue to follow the President’s orders. (See my updates from yesterday, and the various links there, for details) Significant in today’s updates is any lack of suggestion that the courts’ authority played a role in the decision.
That is to say, the administration is testing the extent to which the DHS (and other executive agencies) can act and ignore orders from the other branches of government. This is as serious as it can possibly get: all of the arguments about whether order X or Y is unconstitutional mean nothing if elements of the government are executing them and the courts are being ignored.Worth reading the whole thing.
There are at least two more ominous developments today. The first is the deliberate failure to mention Jews or anti-semitism in Trump's statement for International Holocaust Remembrance Day.
Reince Priebus, the White House chief of staff, defended the language in a Sunday interview on NBC’s “Meet the Press,” telling the host, Chuck Todd, “I don’t regret the words.”
Mr. Priebus continued, “I mean, everyone’s suffering in the Holocaust including obviously, all of the Jewish people affected and the miserable genocide that occurred — it’s something that we consider to be extraordinarily sad.”This is the same ploy that the right used to defuse the Black Lives Matter movement by deploying the aphorism, "All lives matter." Yes, that's true, but it misses the point rather badly.
The second ominous development was Trump's unprecedented appointment of far-right-wing (and well-known anti-semite) Steve Bannon to head the national security council.
President Donald Trump has reorganized the National Security Council—elevating his chief political strategist, Steve Bannon, and demoting the director of national intelligence and the chairman of the Joint Chiefs of Staff.
Bannon will join the NSC’s principals committee, the top inter-agency group advising the president on national security.
Meanwhile, the director of national intelligence and the chairman of the Joint Chiefs of Staff will now attend meetings only when “issues pertaining to their responsibilities and expertise are to be discussed,” according to the presidential memorandum issued Saturday.If you were pinning your hopes on the possibility that cooler heads would prevail, you should be very afraid now. All of the cooler heads are being systematically and expeditiously dispatched.
"he's an incompetent ... con man"
ReplyDeletePresumably you meant that he's incompetent at governance, at science, etc. At the things you care about. But he's always been a con man (aka the Scott Adams "master persuader"). And a very competent one.
The question is whether a highly skilled con man can "keep from imploding".
"What if all of this success is not accidental. What if he actually knows what he's doing, and all of this chaos is actually part of his plan."
Of course it is. Why did you ever believe his success was accidental? You can think that he's a terrible President, and totally unqualified, and making policy decisions that are bad for America. But surely it has been clear for a long time now, that he has a particular mode of operation, and it's very deliberate, and he's good at what he does. (Which is not what you want a President to do, unfortunately.)
I'm honestly surprised that you've lasted this long, watching Trump, and apparently believing him to be "just lucky".
P.S. Trump doesn't need a "coup d'etat". That's a mechanism for people who don't have power. Trump is already President. The executive branch obeys his direct orders. The last thing he wants is an extra-legal revolution.
> Why did you ever believe his success was accidental?
ReplyDeleteWishful thinking?
> The last thing he wants is an extra-legal revolution.
That depends on what you mean by "extra-legal." If the administration refuses to obey court orders, who is going to enforce them? The last time that happened, a bi-partisan Congress forced the president to resign or face impeachment. That seems less likely to save us this time.
I suppose I was objecting to the label coup d'etat, as opposed to objecting to the idea of an executive power grab ("the Imperial Presidency").
ReplyDeleteIt seems that the history of Hitler's rise to power is relevant here. Hitler, from a position of political weakness, did indeed attempt a coup. And it failed, and he was arrested and jailed for treason.
Hitler learned from this, to instead pursue a path to power via the legitimate rules of society. Putin seems to have learned this lesson well too, and slowly transformed a newly democratic Russia, back into what is effectively a dictatorship (over decades).
Trump may indeed be on the road to following Putin (and the later Hitler) examples. But that's not a "coup". He controls the Presidency, and (essentially) both houses of Congress. His route will be to change the rules, so that the power he wants will be granted to him legally.
FWIW, I didn't use the word "coup". If you really object to it you should take it up with Yonatan, not me.
ReplyDeleteBut it would really suck -- it would suck *hard* -- for a worst case scenario to play out while the people who might have stopped it wasted their time and energy quibbling over terminology.
Sicilian Game of Wits
ReplyDeleteI see you're switching to the criminal mastermind fascist Narrative. Try not to overthink it, though - remember, never go against a Sicilian when death is on the line.
@Ron
>There are at least two more ominous developments today. The first is the deliberate failure to mention Jews or anti-semitism in Trump's statement for International Holocaust Remembrance Day.
Did you read the statement?
Statement by the President on International Holocaust Rememberance Day.
What strikes me about his statement is that it's a personal statement of how the Holocaust affects him. No history lesson, like a typical statement.
Let's compare it to the bumbling and ignorant effort by the DNC to get out a statement for Yom Hashoah (which is May 5).
First, they think Yosh Hashoah is a holiday. "Getting pushback from staff because there are too many Jewish holidays, I countered with Holocaust and never again and got why not decry the other examples of genocide - Darfur/Bosnia/etc."
Second, they decide they aren't going to do statements for every Jewish holiday. "We aren’t going to do statements for every Jewish holiday unless she wants to do them for every religious holiday and trust me, this Catholic can give you a list of them."
Third, they ask if they can just skip it. "Need to flag that we did nothing for Christmas or Easter but have done several Jewish ones. Since the congressional one went out is this one we can pass on?"
Finally, they get corrected. "This is not optional. Please tell them I'd like a statement. This is a specific Remembrance Day. There is no such thing with Darfur and Bosnia!! Are they kidding me?? Jews are an important constituency. This is NOT a holiday. It's a Memorial Day for SIX MILLION JEWS KILLED DURING THE HOLOCAUST."
They wouldn't just smear him, would they?
ReplyDelete@Ron
>The second ominous development was Trump's unprecedented appointment of far-right-wing (and well-known anti-semite) Steve Bannon . . .
You should read this:
Steve Bannon on Politics as War - WSJ
... and stop reading #FakeNews .
Sicilian Battle of Wits
ReplyDeleteI see you're switching to the criminal mastermind fascist Narrative. Try not to overthink it, though - remember, never go against a Sicilian when death is on the line.
@Ron
>There are at least two more ominous developments today. The first is the deliberate failure to mention Jews or anti-semitism in Trump's statement for International Holocaust Remembrance Day.
Did you read the statement?
Statement by the President on International Holocaust Rememberance Day.
What strikes me about his statement is that it's a personal statement of how the Holocaust affects him. No history lesson, like a typical statement.
Let's compare it to the bumbling and ignorant effort by the DNC to get out a statement for Yom Hashoah (which is May 5).
First, they think Yosh Hashoah is a holiday. "Getting pushback from staff because there are too many Jewish holidays, I countered with Holocaust and never again and got why not decry the other examples of genocide - Darfur/Bosnia/etc."
Second, they decide they aren't going to do statements for every Jewish holiday. "We aren’t going to do statements for every Jewish holiday unless she wants to do them for every religious holiday and trust me, this Catholic can give you a list of them."
Third, they ask if they can just skip it. "Need to flag that we did nothing for Christmas or Easter but have done several Jewish ones. Since the congressional one went out is this one we can pass on?"
Finally, they get corrected. "This is not optional. Please tell them I'd like a statement. This is a specific Remembrance Day. There is no such thing with Darfur and Bosnia!! Are they kidding me?? Jews are an important constituency. This is NOT a holiday. It's a Memorial Day for SIX MILLION JEWS KILLED DURING THE HOLOCAUST."
@Publius:
ReplyDelete> Did you read the statement?
I did. Sometimes the content of a message lies in what is not said rather than what is.
And . . . ?
ReplyDeleteI did.
What did you think of it?
Do you think President Trump is anti-semitic?
Do you think President Trump is a Holocaust denier?
>Sometimes the content of a message lies in what is not said rather than what is.
Oh big whoopdie-do. This "campaign" and "journalism" technique of "find an unpopular person who agrees with one of the candidates positions, then smear the candidate" is a pretty lame tactic.
Besides, don't you know that President Trump is controlled by a Jewish Cabal?
> What did you think of it?
ReplyDeleteI already said:
"This is the same ploy that the right used to defuse the Black Lives Matter movement by deploying the aphorism, "All lives matter." Yes, that's true, but it misses the point rather badly."
> Do you think President Trump is anti-semitic?
I have no idea. But I think he is deliberately sending subtle supportive signals to anti-semites and other hate groups.
> Do you think President Trump is a Holocaust denier?
Again, I have no idea. I know he has advanced conspiracy theories in the past. His political career was founded on becoming the leading advocate for birtherism. I think he has no regard for truth, and he will deny any truth if it is politically (or economically) expedient for him.
> "find an unpopular person who agrees with one of the candidates positions, then smear the candidate" is a pretty lame tactic.
Richard Spencer is not just any old unpopular person. He's a very prominent white supremacist. IMHO having Spencer's support is a very strong indication that you're doing something very wrong.
Electromagnetic Radiation
ReplyDelete>"This is the same ploy that the right used to defuse the Black Lives Matter movement by deploying the aphorism, "All lives matter." Yes, that's true, but it misses the point rather badly."
Therefore, you didn't like it?
>> Do you think President Trump is anti-semitic?
>I have no idea. But I think he is deliberately sending subtle supportive signals to anti-semites and other hate groups.
Ah, the old dog whistle paranoia.
The ultimate was when George Stephanopoulus was trolled by some teenagers in Calfinoria into thinking that Pepe the frog was a white supremecist symbol!
Let me tell you: there are no dog whistles, and no signals. Never attribute anything to malevolent intent that can be explained by simple idiocy.
>> Do you think President Trump is a Holocaust denier?
>I think he has no regard for truth, and he will deny any truth if it is politically (or economically) expedient for him.
That kinda hurts, as now you're lumping him in with all the regular politicians.
>Richard Spencer is not just any old unpopular person. He's a very prominent white supremacist. IMHO having Spencer's support is a very strong indication that you're doing something very wrong.
Richard Spencer is not a white supremacist, he's a white nationalist. Although he self-identifies as an Identitarian.
President Trump is not interested in such fringe groups and likely doesn't know they exist.
> That kinda hurts, as now you're lumping him in with all the regular politicians.
ReplyDeleteIf the shoe fits...
> Richard Spencer is not a white supremacist, he's a white nationalist.
That's splitting a pretty fine hair.
> President Trump is not interested in such fringe groups and likely doesn't know they exist.
I doubt that very much, but even if it were true, I would not consider such profound ignorance to be a good thing.
@Ron:
ReplyDelete> I think he has no regard for truth, and he will deny any truth if it is politically (or economically) expedient for him.
How am I to take this, when you seem to want most Americans to be deluded on a matter of extreme importance:
> I used to believe in democracy, not because I thought it produced the best outcomes (it clearly doesn't) but because by giving people at least the illusion of having a say in the matter it encourages them to become engaged in the political process and, more importantly, to accept the results without resorting to violence. At least in America the checks-and-balances built in to the system keep things from spinning too wildly out of control.
? You were right to say "the illusion":
>> In the conventional view, democracy begins with the voters. Ordinary people have preferences about what their government should do. They choose leaders who will do those things, or they enact their preferences directly in referendums. In either case, what the majority wants becomes government policy—a highly attractive prospect in light of most human experience with governments. Democracy makes the people the rulers, and legitimacy derives from their consent. In Abraham Lincoln’s stirring words from the Gettysburg Address, democratic government is “of the people, by the people, and for the people.” That way of thinking about democracy has passed into everyday wisdom, not just in the United States but in a great many other countries around the globe. It constitutes a kind of “folk theory” of democracy, a set of accessible, appealing ideas assuring people that they live under an ethically defensible form of government that has their interests at heart.[1]
>> Unfortunately, while the folk theory of democracy has flourished as an ideal, its credibility has been severely undercut by a growing body of scientific evidence presenting a different and considerably darker view of democratic politics. That evidence demonstrates that the great majority of citizens pay little attention to politics. At election time, they are swayed by how they feel about “the nature of the times,” especially the current state of the economy, and by political loyalties typically acquired in childhood. Those loyalties, not the facts of political life and government policy, are the primary drivers of political behavior. Election outcomes turn out to be largely random events from the viewpoint of contemporary democratic theory. That is, elections are well determined by powerful forces, but those forces are not the ones that current theories of democracy believe should determine how elections come out. Hence the old frameworks will no longer do. (Democracy for Realists, 1–2)
I've been told by atheists that believing in delusions has a tendency to lead to catastrophe. Perhaps that is true?
> > I think he has no regard for truth, and he will deny any truth if it is politically (or economically) expedient for him.
ReplyDelete> How am I to take this, when you seem to want most Americans to be deluded on a matter of extreme importance:
What makes you think I *want* this? I don't *want* people to be deluded. I would much rather have actual democracy with an informed electorate empowered to make decisions. But that doesn't seem to be one of the available options. So under the circumstances, if a white lie will keep the peace, I'll take it.
BTW, the reason my faith in democracy has been shaken is not because It thought democracy was operating according to the ideal and now I see it's not. It's because the white lie was fairly effective at keeping the peace. I'm no longer confident that will continue.
> I've been told by atheists that believing in delusions has a tendency to lead to catastrophe. Perhaps that is true?
In general yes. But not all delusions are the same (this is where Dawkins and Hitchens go wrong). Even within Islam there is a world of difference between Mecca Muslims and Medina Muslims. If I have to choose among the available delusions, I'll take faux-democracy, FJ-Christianity, and even Mecca-Islam over open dictatorship, the prosperity gospel, and Wahhabism.
Spend all your free time playing golf
ReplyDelete>> President Trump is not interested in such fringe groups and likely doesn't know they exist.
@Ron
>I doubt that very much, but even if it were true, I would not consider such profound ignorance to be a good thing.
President Trump was 33 years old when the microcomputer revolution started in 1979. He was 49 years old when the internet took off (roughly 1995).
President Trump isn't surfing the web and discovering marginal radical groups. I wouldn't know about them either, except 1) I began using the internet in its infancy*, and 2) I find conspiracy theories entertaining; I therefore seek them out.
It is therefore not "profound ignorance" to not know about these groups. A better term would be "rational ignorance," as these marginal groups are insignificant. It's a better use of his time to do something else.
You don't need the internet to know about white supremacist/nationalist/neo-nazi/neo-confederalist/whatever-the-fuck-you-want-to-call-them-i-dont-want-to-quibble-over-terminology groups. All you have to do is open a newspaper on occasion.
ReplyDeleteEven if these groups were not all over the front page, it is profound ignorance not to know about them when you have people on your senior staff who are on the record being supportive of them.
But all this is moot because it's clear that Trump does know about these groups and welcomes their support.
> What makes you think I *want* this?
ReplyDeleteThree reasons:
(1) I'm not aware of anything you're doing to push toward a better situation.
(2) I don't ever recall you posting scientific research which would shed light on the situation, despite you being a staunch advocate of science.
(3) I've not noticed the kind of chagrin that would communicate that "I'd really like the situation to be different and believe it could be different".
My beginning each point with "I" matches up with my use of "you seem to want".
> I would much rather have actual democracy with an informed electorate empowered to make decisions. But that doesn't seem to be one of the available options.
What has convinced you that it "doesn't seem to be one of the available options"?
> BTW, the reason my faith in democracy has been shaken is not because It thought democracy was operating according to the ideal and now I see it's not. It's because the white lie was fairly effective at keeping the peace. I'm no longer confident that will continue.
This is how I understood your I no longer believe in democracy.
> If I have to choose among the available delusions, I'll take faux-democracy, FJ-Christianity, and even Mecca-Islam over open dictatorship, the prosperity gospel, and Wahhabism.
Don't you want to know if in fact those are "the" available options?
> (1) I'm not aware of anything you're doing to push toward a better situation.
ReplyDeleteWriting this blog doesn't count? Dialogos doesn't count?
> (2) I don't ever recall you posting scientific research which would shed light on the situation
Shed light on what situation? I'm posting the results of all kinds of scientific research all the time.
> (3) I've not noticed the kind of chagrin that would communicate that "I'd really like the situation to be different and believe it could be different".
You can't be serious. (If I didn't know you to be a man of good will I'd think you were trolling me.) I really don't see how you can read even one thing I've written even just in the last month and think that I don't want the situation to be different. In fact, I'd say that I err very much on the opposite side: I express my displeasure with the way things are to the point where people lose patience with me because I'm constantly whining and complaining.
> Don't you want to know if in fact those are "the" available options?
Of course. Why would you doubt it? I am *always* open to suggestions. Always have been. Always will be.
> Writing this blog doesn't count? Dialogos doesn't count?
ReplyDeleteLet's separate out the matter of overall goodness—which I think your blog and Dialogos clearly achieve[d]—and the matter of [asymptotically] approaching true democracy. Dialogos may have been able to do that if you had found potential Trump supporters; I know that finding that kind of individual was difficult and you decided to shift your efforts elsewhere. What I haven't seen you do is struggle with the core complaints of Trump's electorate in a sympathetic manner. This being said, I did miss your The pro-life movement should be taken seriously, which is an excellent counterexample. But then you write stuff like "The utter cluelessness of Donald Trump's supporters is beyond mind-boggling.", which seems like the opposite of e.g. Arlie Russell Hochschild's Strangers in Their Own Land: Anger and Mourning on the American Right.
> > (2) I don't ever recall you posting scientific research which would shed light on the situation
> Shed light on what situation? I'm posting the results of all kinds of scientific research all the time.
How our "democracy" actually works, vs. the public-facing façade. If you want to change reality, you must first understand reality as it is. Lack of such understanding seems like the only explanation for the upset that Trump's nomination and election were to so many public intellectuals. I am highly reticent to say that humans just don't have the [potential] ability to understand and [probabilistically] predict such things. I am quite ready to accept that they got caught up in what they wanted to believe instead of what was actually true—a failing that some seem to think is particularly high among the "religious".
> > (3) I've not noticed the kind of chagrin that would communicate that "I'd really like the situation to be different and believe it could be different".
> You can't be serious.
I meant that to be one proposition: "[i] I'd really like the situation to be different and [ii] believe it could be different." That is: P = [i] ∧ [ii]. I have no doubt that [i] is the case; it's [ii] that I was getting at.
> In fact, I'd say that I err very much on the opposite side: I express my displeasure with the way things are to the point where people lose patience with me because I'm constantly whining and complaining.
Do you offer workable solutions to ameliorating the problems you identify? Solutions which haven't been tried many times before with failure being the almost universal result? My experience is that people tend to have limited patience for hearing about brokenness they have no idea how to fix. An exception is if they experience this brokenness to be constantly plaguing their lives. Even then, there may be a suspicion that too much complaining is a substitute for actually doing something about the problem.
> > Don't you want to know if in fact those are "the" available options?
> Of course. Why would you doubt it? I am *always* open to suggestions. Always have been. Always will be.
I was expressing interest in what research you did before today, in order to become at least somewhat convinced that those are "the" available options. As to future suggestions, that is why I introduced you to a sociologist who specializes in how institutions operate and change.
Pick the target, freeze it, personalize it, and polarize it.
ReplyDelete@Ron
>Even if these groups were not all over the front page,
Let's see, if the New York Times publishes anything about Quiverfull or Promise Keepers - and if they do, is it negative?
Quiverfull
Promise Keepers
Hmm, generally not negative, not on the front page. I could miss it if I'm reading the business section.
<it is profound ignorance not to know about them when you have people on your senior staff who are on the record being supportive of them.
Since he doesn't have people on his staff who are supportive of them . . ..
>But all this is moot because it's clear that Trump does know about these groups and welcomes their support.
What a bunch of demagoguery. It's written to support the criminal mastermind fascist Narrative.
If we look at Trump's statements:
"President-elect Trump has continued to denounce racism of any kind and he was elected because he will be a leader for every American," Bryan Lanza, a spokesperson for the incoming Trump administration
"I don’t know anything about what you’re even talking about with white supremacy or white supremacists."
"It’s not a group that I want to energize. And if they are energized I want to find out why," he said, when asked about their support.. . . "If I thought he was a racist or alt-right or any of the things, the terms we could use, I wouldn’t even think about hiring him."
None of his statements indicate any deep knowledge of these groups and no support for them.
The article continues to libel Breitbart with the "Breitbart is alt-right" Narrative.
You want to see an alt-right website? Red Ice is an alt-right website.
> Quiverfull or Promise Keepers
ReplyDeleteDifferent post. We're talking about the neo-nazis here, not the christo-fascists. Please try harder to follow the plot.
@Luke:
ReplyDelete> How our "democracy" actually works, vs. the public-facing façade.
> I meant that to be one proposition: "[i] I'd really like the situation to be different and [ii] believe it could be different." That is: P = [i] ∧ [ii]. I have no doubt that [i] is the case; it's [ii] that I was getting at.
OK. For the record:
I would like the situation to be different.
I don't know if it could be different. It's possible that liberal democracy is inherently unstable (we're going to get a few data points in the next few years I think). I hope it's not (inherently unstable that is).
> Do you offer workable solutions to ameliorating the problems you identify? Solutions which haven't been tried many times before with failure being the almost universal result?
Well, the jury is still out whether the American experiment is going to end up being a failure. There's still a chance that the country could come to its senses. It happened with McCarthy. It happened with Nixon. It might happen with Trump if he screws up badly enough.
As for offering solutions, sure: repeal Citizens United. Raise taxes on the wealthy. Make home-schooling and gerrymandering illegal. Eliminate tax exemptions for churches that participate in politics. That would be a really good start.
> As to future suggestions, that is why I introduced you to a sociologist who specializes in how institutions operate and change.
Ah. Well, he said that I'd need to read ten books (at least) to achieve enlightenment, so that's going to be a longer-term project.
Pick the target, freeze it, personalize it, and polarize it. 2
ReplyDelete@Ron
>Different post. We're talking about the neo-nazis here, not the christo-fascists. Please try harder to follow the plot.
Even less published on the alt-right, as they just appeared in the past couple of years.
<it is profound ignorance not to know about them when you have people on your senior staff who are on the record being supportive of them.
Since he doesn't have people on his staff who are supportive of them . . ..
>But all this is moot because it's clear that Trump does know about these groups and welcomes their support.
What a bunch of demagoguery. It's written to support the criminal mastermind fascist Narrative.
If we look at Trump's statements:
"President-elect Trump has continued to denounce racism of any kind and he was elected because he will be a leader for every American," Bryan Lanza, a spokesperson for the incoming Trump administration
"I don’t know anything about what you’re even talking about with white supremacy or white supremacists."
"It’s not a group that I want to energize. And if they are energized I want to find out why," he said, when asked about their support.. . . "If I thought he was a racist or alt-right or any of the things, the terms we could use, I wouldn’t even think about hiring him."
None of his statements indicate any deep knowledge of these groups and no support for them.
The article continues to libel Breitbart with the "Breitbart is alt-right" Narrative.
You want to see an alt-right website? Red Ice is an alt-right website.
If you want to understand the origin of the alt-right, I believe this author has a good explanation:
How Anti-White Rhetoric Is Fueling White Nationalism
You will obey the state
ReplyDelete@Ron
>As for offering solutions, sure: repeal Citizens United. Raise taxes on the wealthy. Make home-schooling and gerrymandering illegal. Eliminate tax exemptions for churches that participate in politics. That would be a really good start.
1. repeal Citizens United - You would do this by, what? Eliminating certain constitutional rights?
"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." -- Justice Kennedy
2. Raise taxes on the wealthy - could this be combined, say, with some spending restraint?
3. Make home-schooling illegal - This violates personal liberty.
4. Make gerrymandering illegal - Agree - but how?
5. Eliminate tax exemptions for churches that participate in politics - More elimination of constitutioanal rights.
Given 1, 3, 5 above - how do you call President Trump a fascist?
> You would do this by, what? Eliminating certain constitutional rights?
ReplyDeleteNo. I would repeal the legal fiction that corporations are fully fledged persons entitled to all the same rights as humans. Corporations are *not* people, corporations are *groups* of people, a very crucial distinction.
This is what drive me nuts about the CU decision. The court's heart was in the right place (protecting freedom of speech) but they went way overboard in their implementation, much like they botched Roe v Wade back in the day by pulling the trimester rule out of a hat. That mistake has since been fixed by Planned Parenthood v Casey, but CU is still broken and doing a lot of damage.
> could this be combined, say, with some spending restraint?
Absolutely! I'd start by cutting the ridiculously bloated military budget.
> This violates personal liberty.
Society imposes many constraints on your personal liberty. Home schooling is child abuse and corrosive to society.
BTW, I just thought of another idea: I'd make two years of military service mandatory for all citizens upon reaching the age of 18.
> Agree
Holy shit! Did hell just freeze over?
> but how?
By removing the power to draw district lines from state legislatures and placing it in the hands of non-partisan independent commissions. California has done this. It works great.
> More elimination of constitutioanal rights
Not at all. The Constitution does not guarantee the right of religious organizations to be exempt from taxes. That is a privilege that has been extended to religious organizations by Congress through law, and can be constitutionally remove by Congress through law. It is no different from giving tax exemptions to secular non-profits.
In fact, it is arguable that the religious tax exemption is unconstitutional because it is a law that prefers (respects) religious organizations over non-relgious organizations.
Polygons
ReplyDelete> You would do this by, what? Eliminating certain constitutional rights?
>No. I would repeal the legal fiction that corporations are fully fledged persons entitled to all the same rights as humans. Corporations are *not* people, corporations are *groups* of people, a very crucial distinction.
Congress shall make no law r . . .; or abridging the freedom of speech,. . .
Note that the First Amendment is written in terms of speech, not speakers. It's text doesn't provide any foothold for excluding any category of speaker.
>> This violates personal liberty.
>Society imposes many constraints on your personal liberty. Home schooling is child abuse and corrosive to society.
Home schooling is not child abuse.
Look at it from the other direction: parents required to send their children to State schools for indoctrination.
>BTW, I just thought of another idea: I'd make two years of military service mandatory for all citizens upon reaching the age of 18.
That would seem to go against cutting military spending. The military would oppose it as well, as they like the all volunteer force.
>Regarding gerrymandering
>> but how?
>By removing the power to draw district lines from state legislatures and placing it in the hands of non-partisan independent commissions. California has done this. It works great.
Except they don't work great. These commissions inevitably get corrupted by partisans. Plus the Voting Rights Act actually requires some gerrymandering.
I'm thinking more of a Constitutional amendment. It would require that congressional districts be drawn as simple polygons, with straight sides - except for 2 sides, which may be either along geographic obstruction (mountain, river) or a state boundary.
>In fact, it is arguable that the religious tax exemption is unconstitutional because it is a law that prefers (respects) religious organizations over non-religious organizations.
Well, there are:
Walz v. Tax Commission of the City of New York
McCulloch v. Maryland
> Note that the First Amendment is written in terms of speech, not speakers. It's text doesn't provide any foothold for excluding any category of speaker.
ReplyDeleteDo you think the Russian and Chinese governments have a first-amendment right to advocate for U.S. political candidates? To contribute to their campaigns? If not, why not?
> Home schooling is not child abuse.
It's not necessarily child abuse but it certainly can be. I think indoctrinating your kids into a religious cult is child abuse.
To be clear: when I said, "Make home schooling illegal" I obviously did not mean that it should be illegal to teach your kids whatever you want when they are at home. I meant that it should not be legal to home-school as a *replacement* for public or accredited private schools.
Do you think it should be legal to establish madrassas in the U.S.? And I don't mean in the broad sense, I mean real honest-to-Allah madrassas where students study nothing but the Koran.
> Look at it from the other direction: parents required to send their children to State schools for indoctrination.
Sure. But then the indoctrination is open for all to see, and controlled by a democratically elected government so that the people ultimately control the content of the indoctrination. I have no problem with that. A certain level of indoctrination of the citizenry is necessary for a democracy to function. There are certain things everyone needs to know: how to read and write, basic civics, math, how to think critically and independently. There are also certain values everyone needs to buy in to: the rule of law. The importance of objective truth. Without these things to bind it together, society crumbles.
> Except they don't work great. These commissions inevitably get corrupted by partisans.
Reference required.
> Plus the Voting Rights Act actually requires some gerrymandering.
Yeah, that's a problem. But the commission can take that into account.
> I'm thinking more of a Constitutional amendment
Good luck with that. And good luck on coming up with an algorithm that everyone can agree on. Algorithms can be gamed just as much as independent commissions. All else being equal I'd rather have a few humans in the loop.
> Walz v. Tax Commission of the City of New York
What can I say? The Court got Plessy v Ferguson wrong too.
By providing tax exemptions to religious organizations the government necessarily gets into the business of deciding what is and is not a religious organization. I would think you of all people would oppose that.
> McCulloch v. Maryland
I don't see how that's relevant.
@Ron:
ReplyDelete> Home schooling is child abuse and corrosive to society.
Those are both interesting claims. Got evidence?
@Luke:
ReplyDelete> Those are both interesting claims. Got evidence?
OK, I looked at the data and found that home schooled kids actually tend to do better than public school kids academically. That really surprised me. (I think this may be more of an indictment of public schools than a vindication of home schooling.) So I'm going to retract my statement about home schooling, especially the "abuse" part.
However, it is true that home schooling can (and often does) provide *cover* for actual abuse.
https://www.responsiblehomeschooling.org/policy-issues/abuse-and-neglect/abuse-in-homeschooling-environments/
But of course that's not the same as home schooling *being* abuse. I hereby retract that claim, along with my recommendation to outlaw it.
I stand by my other suggestions though, at least for the time being :-)
Hafiz
ReplyDelete>Do you think the Russian and Chinese governments have a first-amendment right to advocate for U.S. political candidates? To contribute to their campaigns? If not, why not?
No. The right of free speech is held personally by humans. Governments currently don't have free speech rights. Indeed, First Amendment speech rights can only restrict, not protect, state actors.
>Do you think it should be legal to establish madrassas in the U.S.? And I don't mean in the broad sense, I mean real honest-to-Allah madrassas where students study nothing but the Koran.
You mean like Jamia Islamia Darul-Uloom Detroit (facebook) ?
>> Except they don't work great. These commissions inevitably get corrupted by partisans.
>Reference required.
Arizona redistricting chief ousted
Court orders reinstatement of redistricting official
Background: The Arizona Independent Redistricing Commission is supposed to be composed of 2 Democrats, 2 Republicans, and 1 Independent (to be chairman/woman).
The Problem: Colleen Coyle Mathis changed her registration from Democrat to Independent. She was chosen as the Independent chairwoman.
She lied on questions 1,6,8 on her application about the status of her attorney husband. Both Mathis and her husband donate to progressive candidates including donations to President Obama. Her husband was a paid campaign manager for a Democratic party candidate. Colleen was awarded a job managing Obama's Stimulus Funds in Tucson in 2009 which was not stated on her application for this ARC job.
The commission then went on to select Strategic Telemetry (ST) as their mapping consultant. Some of ST’s most recent clients include the 2008 Obama for President Campaign ( SEIU,MoveOn.org, Gov Jerry Brown, John Kerry, State Dem parties). Ken Strasma, the President of ST, use to be the Policy Director for the National Committee for an Effective Congress. NCEC's web site, the NCEC claims to be “one of the most influential political organizations having helped elect hundreds of progressive candidates to congress.” ST's website formerly stated they specialized in electing progressive candidates. ST is not an expert mapping company. ST advises progressive campaigns. They said they would need time to learn the mapping software package, which is a standard in the industry.
> No. The right of free speech is held personally by humans. Governments currently don't have free speech rights.
ReplyDeleteOK, I agree. But you just contradicted yourself because earlier you said:
>Note that the First Amendment is written in terms of speech, not speakers. It's text doesn't provide any foothold for excluding any category of speaker.
And yet you just excluded governments. But governments and corporations are both just groups of people. I don't see any possible principled basis for distinguishing between them.
> You mean like Jamia Islamia Darul-Uloom Detroit?
Yes. Exactly.
> Arizona redistricting chief ousted
> Court orders reinstatement of redistricting official
Those are both the same story. A single disputed incident of someone committing fraud does not constitute evidence that "These commissions inevitably get corrupted by partisans." [Emphasis added.]
@Ron:
ReplyDelete> I would like the situation to be different.
I never doubted this, although exactly what that desire entails is another matter. Suppose that actually the situation couldn't be different, with probability 99.99%. (Somehow, you know this.) Is it then rational to "want" the 00.01% option, in the sense of spending very many brain cycles on it? We could compare this to Christians who are "practical atheists": in some sense they'd like God to exist, but generally they act as if he doesn't.
> Well, the jury is still out whether the American experiment is going to end up being a failure. There's still a chance that the country could come to its senses. It happened with McCarthy. It happened with Nixon. It might happen with Trump if he screws up badly enough.
Oh, these things could keep happening without the American experiment ending up being a failure. Instead, I was thinking about whether we could achieve a better state of national being so that such things become incredibly rare, sort of like wars between major powers. There were a lot more of those in the past, especially if you measure per capita.
> As for offering solutions, sure: repeal Citizens United. Raise taxes on the wealthy. Make home-schooling and gerrymandering illegal. Eliminate tax exemptions for churches that participate in politics. That would be a really good start.
How do you think power (to influence social and political reality) will be redistributed, via this plan? Keep in mind that things like regulatory capture and tax codes can create market failure (that is, push toward monopoly and/or monopsony).
I started thinking about trying to get a constitutional amendment passed which redefines 'freedom of speech' to exclude the monetary aspect established by Citizens United v. FEC. And then I started wondering: do citizens care enough to fight against the inevitable corporate and political backlash? (After all, don't politicians do better for themselves, now that there can be Super PACs?) I worry that the answer is a very strong "No", and that such an answer would have a profound impact on how power would actually be redistributed.
> Ah. Well, he said that I'd need to read ten books (at least) to achieve enlightenment, so that's going to be a longer-term project.
Oh, I'll bet it's quite a lot more than that. Understanding how things work instead of being caught in others' schemes is quite difficult. Recall Hillary's public and private positions: if you don't know the private one, you're left trusting her, which necessarily leaves you deluded because by construction, it would not be good for you to understand things as they really are. (This is very different from what one sees in the Bible, BTW.) Most people end up deciding not to appreciably challenge the status quo, probably because truly doing so would be extraordinarily hard. For those who merely want to feel like they're doing something positive, I believe there are many honeypots available. For example, see Peter Buffett's 2013 NYT piece The Charitable–Industrial Complex.
Ontology
ReplyDelete@Publius
>> No. The right of free speech is held personally by humans. Governments currently don't have free speech rights.
@Ron
>OK, I agree. But you just contradicted yourself because earlier you said:
>>Note that the First Amendment is written in terms of speech, not speakers. It's text doesn't provide any foothold for excluding any category of speaker.
>And yet you just excluded governments. But governments and corporations are both just groups of people. I don't see any possible principled basis for distinguishing between them.
The law will always involve people, as law is one way in which society regulates behavior. The presence of a "person" in an action is therefore irrelevant; they are always present. What is important is how "person", "group", "association", "corporation", and "government" are structured into the law ontology.
While there is no single version of "government" as a legal entity in the ontology, one version is applicable here: a single authority representing all branches of the state and able to make committments on behalf of the whole. Government is a unique legal actor, as it both makes and enforces most laws. Government generally does not possess "rights" in the law; instead, governments are granted certain powers.
Foreign governments, by their being governments, do not have First Amendment rights. Furthermore, by their being foreign, are outside the jurisdiction of the United States, cannot be given First Amendment rights, or granted any powers, by the Constitution.
That is the principled basis for distinguishing between corporations and governments.
> The presence of a "person" in an action is therefore irrelevant; they are always present.
ReplyDeleteYou are mistaken. Civil forfeiture is legal action by the government (which is not a legal person) against property (also not a legal person).
> Foreign governments, by their being governments, do not have First Amendment rights.
Let me remind you again of your own words:
"Note that the First Amendment is written in terms of speech, not speakers. It's text doesn't provide any foothold for excluding any category of speaker."
And yet here you are distinguishing certain categories of speakers. And what is your basis for this? You have none. You just state as a bald assertion that governments do not have first amendment rights (but corporations do) as a bald assertion with not even an attempt to advance an argument.
BTW, you actually got it right the first time: the First Amendment is indeed written in terms of speech, not speakers. But there's more: it is not written in terms of *granting rights* but rather in terms of *constraining Congress*, by which is meant (obviously) the Congress of the United States: Congress shall pass no law abridging freedom of speech, full stop. The plain meaning of the text is that Congress cannot abridge the freedom of speech of *anyone*, including foreign governments.
Of course, *no one* believes that, not even that supposed bulwark of originalism and textual literalism Antonin Scalia (who was actually a flaming hypocrite, but let's leave that aside for now). The First Amendment cannot be read literally. It must be interpreted under some reasonable assumptions, and the most reasonable assumption is that it is designed to protect the rights and promote the general welfare of the *people*, by which is meant the natural persons under the jurisdiction of the United States. Corporations do not have any inalienable rights because they are not natural persons. We The People create corporations to serve our own ends. They do not have natural rights. They cannot vote. They cannot become citizens. They enjoy only the privileges we grant them in order that they can serve the purpose for which we created them.
> That is the principled basis for distinguishing between corporations and governments.
You and I have very different definitions of the word "principled."
1. You Persist In Error
ReplyDelete@Publius
>> The presence of a "person" in an action is therefore irrelevant; they are always present.
@Ron
>You are mistaken. Civil forfeiture is legal action by the government (which is not a legal person) against property (also not a legal person).
This is an odd kind of argument. My argument is that people are irrelevant because they are omnipresent. You counter with one example where you state there are no people present, therefore, people are irrelevant.
Yet you are wrong. Let me correct that statement for you:
Civil forfeiture is legal action by the government (a judicial person) against property (which is owned by a person).
If you could site a case of the government taking legal action against Mt. McKinley, or Mt. McKinley sueing a grizzly bear, you might have something.
>And yet here you are distinguishing certain categories of speakers. And what is your basis for this? You have none. You just state as a bald assertion that governments do not have first amendment rights (but corporations do) as a bald assertion with not even an attempt to advance an argument.
Did you happen to read anything I wrote about the government being a unique legal actor?
Let's a simpler argument.
The First Amendment expressly restrains the power of the US Government in favor of individual expression. The problem of freedom of speech in the constitutional sense does not arise when the US Government itself is doing the speaking. For example, there is not constitutional objection to self-imposed limitations restricting the US Government from engaging in speech.
Let's do some word substitution for fun:
Congress shall pass no law abridging the freedom of speech of Congress.
In addition, the First Amendment may be used by individuals to limit the speech of government. Consider if Congress passed a law requiring that all commercial aircraft flights in the US of a duration of an hour or longer, must play a 30 minute recording of speeches made on the floor of Congress the week before. A First Amendment case could be brought to stop the government from subjecting passengers (capture and unwilling listeners) to government speech.
>But there's more: it is not written in terms of *granting rights* but rather in terms of *constraining Congress*, by which is meant (obviously) the Congress of the United States: Congress shall pass no law abridging freedom of speech, full stop. [emphasis added]
Here we have clear indication of when your brain stopped thinking. ;-)
> The plain meaning of the text is that Congress cannot abridge the freedom of speech of *anyone*, including foreign governments.
I have established that the US government does not have First Amendment rights (which would be ridiculous).
Now what about foreign governments? We can note that:
1) the Constitution does not give specific speech protection to foreign governments
2) by that nature of them being "foreign", they are outside of the American community, and therefore enjoy no Constitutional protections whatsoever.
2. Grant me the freedom to speak?
ReplyDelete>The First Amendment cannot be read literally. It must be interpreted under some reasonable assumptions, and the most reasonable assumption is that it is designed to protect the rights and promote the general welfare of the *people*, by which is meant the natural persons under the jurisdiction of the United States.
Here, now, you try to develop a principle to deny free speech protections based on the identity of the speaker.
>Corporations do not have any inalienable rights because they are not natural persons. We The People create corporations to serve our own ends. They do not have natural rights. They cannot vote. They cannot become citizens. They enjoy only the privileges we grant them in order that they can serve the purpose for which we created them.
You error in thinking that free speech protections for corporations is a result of corporate personhood. (see, especially, misconceptions). If the United States Code were revised to not include "corporations" as part of the meaning of the word "person" in the code, it would not affect the free speech protections for corporations.
Congress has not granted corporations free speech rights. Congress doesn't have the power to grant free speech rights.
The free speech protections for corporations are not "top down" - somehow "granted" by Congress. The protections are "bottom up" -- they come from the free speech rights of the individuals who are in a group or association.
The freedom to speak includes the freedom to speak in association with other individuals, including association in the corporate form.
One person has the freedom to speak.
Two people have the freedom to speak.
A group of 10 people have the freedom to speak.
An association of 1000 people have the freedom to speak.
Do you think there is some number, at which, associations of people lose the freedom to speak? What would that number be?
The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the "discussion, debate, and the dissemination of information and ideas" that the First Amendment seeks to foster. [PG&E v. Public Utilities Commission of California 475 US 1 quoting First National Bank of Boston v. Bellotti 435 US 765]
"The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not 'natural persons.'" [Citizens United v. FEC]
>> That is the principled basis for distinguishing between corporations and governments.
>You and I have very different definitions of the word "principled."
You're never too old to learn.
@Publius:
ReplyDelete> My argument is that people are irrelevant because they are omnipresent. You counter with one example where you state there are no people present, therefore, people are irrelevant.
No, the conclusion is not that people are irrelevant (they are not), the conclusion is that your argument is wrong because it is based on a false premise.
> Civil forfeiture is legal action by the government (a judicial person) against property (which is owned by a person).
No.
First, there is no such thing as a "judicial person". You probably meant "juridical person".
https://en.wikipedia.org/wiki/Legal_personality
And second:
"Not all organizations have legal personality. For example, the board of directors of a corporation, legislature, or governmental agency typically are not legal persons in that they have no ability to exercise legal rights independent of the corporation or political body which they are a part of."
So I don't even have to use property as my counter-example to your claim that legal persons are omnipresent. That is simply flat-out false. There are many examples of legally recognized entities who are not legal persons.
> I have established that the US government does not have First Amendment rights (which would be ridiculous).
You're right. It would be ridiculous. We agree on that.
So the U.S. government does not have first amendment rights despite the fact that the U.S. government is a collection of natural persons (in fact, a collection of U.S. citizens!)
Therefore, it cannot be the case that corporations have first amendment rights simply because they are groups of people who individually have first amendment rights. The government is a counter-example to this argument. The government is a collection of U.S. citizens, each of whom has first amendment rights, and yet the government itself does not have those rights.
BTW, it is also worth noting that corporations are not Constitutionally recognized entities. You don't have a Constitutional right to form a corporation. The word "corporation" does not appear in the Constitution. Corporations only exist because there is a specific law that allows them to exist. There are many constraints on corporations (including corporate speech) that do not apply to individuals. For example, there are constraints on commercial speech that do not apply to non-commercial speech.
I'm really, really amused that this discussion about persons and rights is sorely in need of the conceptual architecture provided by mediating structures/mediating institutions, two primers being To Empower People: From State to Civil Society and The Fractured Republic.
ReplyDeleteSee, what you want to say is that there is a thing made up of people which can have money but not rights. Simultaneously, the people can have the rights but not the money. But don't the people simultaneously have the rights? This evinces the apparent contradiction of particle/wave duality. But there is no contradiction when you slice things up properly: light propagates as a wave and interacts as a particle. Likewise, there is a truly existing thing, a mediating structure, which can "own" money without the people who "own" that mediating structure transitively owning the money—for purposes of free speech. Breaks in transitivity can be hard for people.
What we have to realize is that the mediating structure of the corporation also breaks transitivity in terms of legal accountability. If I sue a corporation (of the right kind), its owners have limited liability. But wait, if a group of ten people lynches someone, nobody lets one get away with the fiction that because it was a group, the guilt doesn't transitively flow to the individuals. No, you throw them all in prison if the evidence warrants it. So what happened with corporations? How did transitivity get broken?
I don't know the answer to the above question, but if transitivity can be broken when it comes to legal accountability, why not break it also when it comes to legal rights? If you the CEO don't want to be personally on the line if your corporation is found to be criminally negligent for a person's death, then you the CEO don't get to utilize your corporation's resources in exercising your freedom of speech. If you're going to escape what seem like 'natural' responsibilities, then you are denied what seem like 'natural' rights.
How's that for legal reasoning? I'm not a lawyer, but I am very interested in this matter.
@Luke:
ReplyDeleteThat is an excellent analogy. The point about rights and ownership not being transitive is exactly right.
> How did transitivity get broken?
Because the law explicitly breaks it. That's the whole *point*. We invented corporations so people can make investments without having to worry about being held personally liable if the company they invest in screws up. That helps to grease the economic skids.
One of the problems with today's world is that it is not only the shareholders who are being absolved of legal responsibility for corporate actions, but managers and directors as well (this was not always the case). At that point, corporations become literal (but disembodied) zombies, effectively acting like people for legal purposes, but without brains, souls, or moral intuitions, and without any effective way to punish them for wrongdoing.
> That is an excellent analogy. The point about rights and ownership not being transitive is exactly right.
ReplyDeleteThanks! I'm channeling David Politzer, from a conversation I had a few months before he got his Nobel Prize. Alluding to F. Scott Fitzgerald's The Crack-Up, he said that a crucial step in scientific maturity is to be able to hold [apparently] contradictory concepts in your head without immediately vomiting one of them. I just love that he picked this, given how anti-intuitive asymptotic freedom must have been. Anyhow, that reasoning is what popped out when I insisted on connecting money to free speech while also denying that a corporation's money can be used for free speech. Not so contradictory, after all! And we don't even need to consider whether corporations are persons—I don't think?
> > How did transitivity get broken?
>
> Because the law explicitly breaks it. That's the whole *point*. We invented corporations so people can make investments without having to worry about being held personally liable if the company they invest in screws up. That helps to grease the economic skids.
Oh I understand that much. I meant that I lacked deeper knowledge into how the legal reasoning went down. My experience is that folks generally try to be rather comprehensive when they engage in such reasoning, so it is possible that someone theorized about transitivity in the way that I just did.
> One of the problems with today's world is that it is not only the shareholders who are being absolved of legal responsibility for corporate actions, but managers and directors as well (this was not always the case). At that point, corporations become literal (but disembodied) zombies, effectively acting like people for legal purposes, but without brains, souls, or moral intuitions, and without any effective way to punish them for wrongdoing.
Moral reasoning in pretty much all respects is experiencing serious problems. It's what happens when we only care about next quarter's profits (or worse: HFT), when we completely abstract away from concrete situations (e.g. Rawls' veil of ignorance), when we treat authority as a permanent construct instead of a critical means to maturity (I'm looking at Christians and their pushing the "until" of Eph 4:11–16 off to the eschaton), when we [voters] care only about the last few months in choosing their next leader (covered in Political Animals and Democracy for Realists), when we don't care about the pollution and slavery which went into the products we purchase as long as they happen out of sight and out of mind, etc. The silver lining to catastrophic global climate change is that it will force us to abandon the social atomism we so dearly love. Well, at least a remnant will abandon it—the rest may perish. Rant over. :-|
Shell Game
ReplyDelete@Ron
>So I don't even have to use property as my counter-example to your claim that legal persons are omnipresent. That is simply flat-out false. There are many examples of legally recognized entities who are not legal persons.
Ah, now here you move the pea. My statements regard persons, a human being. Not a "legal person".
The law always involves people--human beings. Not trees or polar bears. If a woodchuck steals my ticket to a raffle, I have no legal recourse.
>So the U.S. government does not have first amendment rights despite the fact that the U.S. government is a collection of natural persons (in fact, a collection of U.S. citizens!)
Therefore, it cannot be the case that corporations have first amendment rights simply because they are groups of people who individually have first amendment rights. The government is a counter-example to this argument. The government is a collection of U.S. citizens, each of whom has first amendment rights, and yet the government itself does not have those rights.
Wrong yet again!
The People are Sovereign. When The People created the government, they did not grant it free speech power; they retained that right for themselves individually.
>BTW, it is also worth noting that corporations are not Constitutionally recognized entities. You don't have a Constitutional right to form a corporation. The word "corporation" does not appear in the Constitution. Corporations only exist because there is a specific law that allows them to exist.
Here you come up with another justification to limit the freedom of people. Let's take a look.
Corporations predate the Constitution itself. In the British legal tradition, corporations had long been organized via common law and under the King's charter. Corporate organization is even older, having first appeared in ancient Rome.
People have the right of association and to form contracts. The contracts clause of the US Constitution prohibits States to ". . . pass any . . . Law impairing the Obligation of Contracts, . . .." In the case Dartmouth College v. Woodward, the Supreme Court held that a corporate charter was a contract entitled to such protection.
unalienable
ReplyDelete@Luke
>I don't know the answer to the above question, but if transitivity can be broken when it comes to legal accountability, why not break it also when it comes to legal rights? If you the CEO don't want to be personally on the line if your corporation is found to be criminally negligent for a person's death, then you the CEO don't get to utilize your corporation's resources in exercising your freedom of speech. If you're going to escape what seem like 'natural' responsibilities, then you are denied what seem like 'natural' rights.
Except . . . free speech is an unalienable right and therefore cannot be separated from individuals, even a corporate CEO.
Jail
ReplyDelete>One of the problems with today's world is that it is not only the shareholders who are being absolved of legal responsibility for corporate actions, but managers and directors as well (this was not always the case). At that point, corporations become literal (but disembodied) zombies, effectively acting like people for legal purposes, but without brains, souls, or moral intuitions, and without any effective way to punish them for wrongdoing.
You've unearthed one positive thing I can say about the Obama administration, even with his odious attornies general Eric Holder and Loretta Lynch, is the renewed focus to prosecute individual employees within corporations. Although this is rarely satisfying. It is not without problems, such as prosecuting executives who lack criminal intent.
Goverment officials should also be prosecuted for criminal acts. Government agencies are an even better place to avoid responsibility for crime.
> People have the right of association and to form contracts.
ReplyDeleteAbsolutely correct. But they do *not* have the right to shield themselves from personal liability by forming associations. That is a *privilege* granted under the law, not a right. And that privilege comes with concomitant responsibilities.
@Publius:
ReplyDelete> Except . . . free speech is an unalienable right and therefore cannot be separated from individuals, even a corporate CEO.
That's fine; we simply say that if the CEO wishes to "alienate" himself/herself from legal liability—like going to jail if his/her corporation is found responsible for negligent homicide—then that CEO also "alienates" himself/herself from the resources of that corporation when it comes to political action. That person can still exercise all the free speech [s]he wants, on his/her own dime, with his/her own resources.
The US Constitution is quite happy to alienate people from their money. In response, it provides various protections to the people. But perhaps you would be interested in rolling back the concept of limited liability? If you're up for that, I'm happy to let CEOs use all the resources of their corporations for political action.
To my knowledge, the US Constitution does not indicate that money can only be held by individuals. In fact, the idea that it can only be held by individuals would make taxation... rather difficult. So, I see absolutely no problem with setting up the legal notion of a mediating structure/mediating institution. Do you? You seem to know the Constitution and related law better than I, so if in fact it is always prohibited for money to be held by any legal entity other than a person, you'll probably know.
You can't undo a baptism, either
ReplyDelete@Luke
>That's fine; we simply say that if the CEO wishes to "alienate" himself/herself from legal liability—like going to jail if his/her corporation is found responsible for negligent homicide—then that CEO also "alienates" himself/herself from the resources of that corporation when it comes to political action.
Consider these situations:
1. To form a corporation, the CEO gives up his right to political speech.
2. To enroll in a state university, the student must follow a campus speech code.
3. As a federal employee, you must never criticize the government.
4. To receive welfare benefits, you cannot criticize the government.
All of the above are impermissible. Free speech is an unalienable right. It cannot be separated from a person, even if the government is giving a privilege, providing a service, is the employer, or providing benefits.
@Publius:
ReplyDelete> 1. To form a corporation, the CEO gives up his right to political speech.
Where did I say or imply this? Not having access to your corporation's pot of gold doesn't mean you don't have free speech. It just means you don't have a pot of gold to build a really big megaphone for your speech. Instead, you're rather like the little guy. Huh, it's almost like that's required for a democracy instead of an oligarchy!
@Publius:
ReplyDeleteBy the way, note that my proposed legal reasoning allows CEOs to spend as much of their personal money as they want on politics. The only limitation is if that money ever goes through a legal entity with limited liability. As long as the leadership of the entity is happy taking full responsibility with no legal shield, they can dump as much money as they want into politics.
What is rather surprising is that you might have a problem with this. You seem to think it's that important for such companies to have legal shields. And you don't seem to realize that I can easily circumvent your (not clearly accurate) application of the First Amendment. How? Create laws which revoke limited liability status if political donations exceed a certain amount. BOOM.
What I think we both know is that people often do shady things in politics. That limited liability concept is awfully tempting in such situations. And rich people are quite used to preferential treatment by the law (including by avoiding ever being charged where lesser beings would get charged). But there is no requirement that we as citizens grant limited liability to all legal entities. Unless you can show me where the US Constitution deals with limited liability?
Interestingly enough, I'm not sure my idea would be un-gameable. It's not anything like a full reversal of Citizens United. I'm not sure that bothers me though, because money is not the only form of power. The real problem is when power becomes concentrated, because differentials in power lead to a conversion from 'rationality' → 'rationalization' (see the evidence and analysis Bent Flyvbjerg does in Rationality and Power: Democracy in Practice). The idea that the mere letter of the law can save us is ridiculous, and I think Trump may just be demonstrating that. If Trump is the medicine we require to get over our stupid ideas about reality—ideas which a proper respect for the human sciences would probably cure, but hey, we only respect science when we like it—then so be it. It's a relatively small price to pay for our arrogance, as compared to what went down in WWI and WWII.
Joint and Singular
ReplyDelete>> 1. To form a corporation, the CEO gives up his right to political speech.
@Luke
>Where did I say or imply this? Not having access to your corporation's pot of gold doesn't mean you don't have free speech
I should have specified both the corporation and the its CEO.
do not separate
ReplyDelete@Luke
> The only limitation is if that money ever goes through a legal entity with limited liability. As long as the leadership of the entity is happy taking full responsibility with no legal shield, they can dump as much money as they want into politics.
You're still trying to come up with a scheme to separate that which cannot be separated.
>What is rather surprising is that you might have a problem with this. You seem to think it's that important for such companies to have legal shields.
I really haven't said anything about limited liability for corporations.
Limited liability comes up in these discussions because someone always has the "clever" idea to hold limited liability protection hostage in return for a corporation's free speech rights. [They never come up with holding collective bargaining and strikes hostage in return for a union's free speech rights.]
It's really irrelevant what they choose to take hostage - limited liability, tax deductions, whatever. It's all impermissible. The government cannot separate the free speech rights from a corporation in that manner. If the government is going to offer a benefit, subsidy, or regulation, it cannot be conditioned on the release of free speech rights.
>And you don't seem to realize that I can easily circumvent your (not clearly accurate) application of the First Amendment. How? Create laws which revoke limited liability status if political donations exceed a certain amount. BOOM.
Still trying to separate that which cannot be separated.
If the government is going to legislate limited liability corporations, it cannot be conditioned on anyone giving up their free speech rights.
The government also cannot offer you $10 billion to give up your free speech rights.
> Limited liability comes up in these discussions because someone always has the "clever" idea to hold limited liability protection hostage in return for a corporation's free speech rights.
ReplyDeleteYour capacity for twisting reality never ceases to amaze me. Where did you get this idea that you are entitled to limited liability? You aren't. The baseline situation is that you have free speech rights, and you have full liability exposure. Limited liability is an *privilege* extended to groups of people by the government because it provides a societal good (it makes it easier to raise capital and hence stimulates the economy) and the cost of that privilege is (or at least used to be) that you are constrained to operate under certain rules, one of which is that you stay out of politics. But you are not entitled to it.
(Your attitude is reminiscent of those people lobbying for the ever-increasing expansion of "intellectual property" rights. There is no such thing as "intellectual property." The baseline situation is that all ideas and creative works are in the public domain. Copyright and patent protection are not rights, they, like limited liability, are *privileges* extended by the government in order to "promote the Progress of Science and useful Arts." Constitution of the United States, Article 1, section 8, paragraph 8.)
> The government also cannot offer you $10 billion to give up your free speech rights.
Of course they can. It would be kind of a stupid thing to do, but they can do it. The government offers people incentives to give up their rights all the time. You have a right to a trial by jury, but the vast majority of criminal defendants waive that right and take a plea bargain. You can just as easily waive your right to free speech for the right incentive.
@Publius:
ReplyDelete> I should have specified both the corporation and the its CEO.
"CEO" is just a mask that the human can put on and take off. It carries certain privileges, certain protections, certain duties. It does not carry all the rights of the person. Why is this a problem?
> You're still trying to come up with a scheme to separate that which cannot be separated.
And yet you cannot give me reasoning for this "cannot".
> Limited liability comes up in these discussions because someone always has the "clever" idea to hold limited liability protection hostage in return for a corporation's free speech rights.
Wait, where else has this been suggested? I'd like to read about it.
> [They never come up with holding collective bargaining and strikes hostage in return for a union's free speech rights.]
How much money do unions have to bring to bear? The point here is that unelected, concentrated power in a few people undermines the principles of democracy. That is a descriptive claim, not a normative one. Do I need to cite empirical evidence?
> It's really irrelevant what they choose to take hostage - limited liability, tax deductions, whatever. It's all impermissible. The government cannot separate the free speech rights from a corporation in that manner. If the government is going to offer a benefit, subsidy, or regulation, it cannot be conditioned on the release of free speech rights.
Bare assertion.
> The government also cannot offer you $10 billion to give up your free speech rights.
Nobody is forcing anyone to give up free speech rights. Your reasoning is sloppy. If it continues to be sloppy, if you continue to offer only bare assertions, I may withdraw from the conversation.
> How much money do unions have to bring to bear?
ReplyDeleteOh, thank you for reminding me!
Yes, the social contract with unions is different. Unions are not chartered to raise capital and produce a product. Unions are chartered to represent workers in order to level the playing field when they have to negotiate over wages and benefits with for-profit corporations. The question is not so much how much money unions bring to bear, as how much *capital* they control (answer: none). The social contract with not-for-profit corporations is different than the social contract with for-profit limited-liability corporations.
All of these things are human inventions and are given *privileges* (not rights) by *humans* in order to advance the interests of humans, a.k.a. The People. Corporations are not The People. They do not vote. Corporations, like the government and all other social institutions that we invent are (or at least should be) strictly subservient to The People which, until we invent AI or meet intelligent aliens, are all humans.
I sense that @Publius hasn't quite grasped that my argument does not preclude Bill Gates spending $100 million on TV ads promoting his favorite candidate. The only restriction is that on the way from his bank account to the advertising agency, it cannot pass through a corporation with limited liability. The instant it attempts to pass through such a corporation, that corporation would lose its limited liability.
ReplyDeleteNow, I'm finding something quite fascinating. You might think that of all the institutions in a democracy, those having to do with who gets elected ought to be most legal, most moral, most righteous. After all, who is in power is important, right? Now, I realize that remaining so squeaky clean as to not [statistically] require limited liability protection is quite the imposition. There are many situations where one is innocent, where nonetheless the evidence can get awfully close to a "guilty" verdict. Imposing such a heavy burden on your average Mom & Pop store would be too much. But why shouldn't we impose such a heavy burden on institutions tasked with protecting our democracy? It would appear that @Publius may be deathly afraid of such a thing happening. And while I can see some completely honest reasons for such fear, I can also see nefarious reasons. I wonder what he might do to assure us that he isn't actually being motivated by the nefarious reasons?
alexia without agraphia
ReplyDelete@Ron
>Your capacity for twisting reality never ceases to amaze me. Where did you get this idea that you are entitled to limited liability? You aren't.
It's baffling to me how you find in any of my writing the idea that one is entitled to limited liability. That idea is not present.
If it helps, I agree that "limited liability" is not a Constitutional right. It is a creation of Congress. Congress could repeal it tomorrow.
@Luke
>"CEO" is just a mask that the human can put on and take off. It carries certain privileges, certain protections, certain duties. It does not carry all the rights of the person. Why is this a problem?
Let me give the long version. It is impermissible for the government, in return for the special advantage of being a (limited liability) corporation, to limit the free speech rights of 1) the corporation itself (an association of people), 2) any officer of the corporation (including the CEO), or 3) any employee.
@Ron
>> The government also cannot offer you $10 billion to give up your free speech rights.
>Of course they can.
@Luke
>Bare assertion.
Let's return to the fundamentals:
Congress shall make no law . . . abridging the freedom of speech, . . ..
Why can you not understand "no law"?
Those individuals who form that type of voluntary association known as a corporation are, to be sure, given special advantages -- notably, the immunization of their personal fortunes from liability for the actions of the association -- that the government is under no obligation to confer. But so are other associations and private individuals given all sorts of special advantages that the government need not confer, ranging from tax breaks to contract awards to public employment to outright cash subsidies. It is rudimentary that the government cannot exact as the price of those special advantages the forfeiture of First Amendment rights. See Speiser v. Randall (1958) and FCC v. League of Women Voters, 468 U.S. 364 (1984).
@Publius:
ReplyDelete> Let me give the long version. It is impermissible for the government, in return for the special advantage of being a (limited liability) corporation, to limit the free speech rights of 1) the corporation itself (an association of people), 2) any officer of the corporation (including the CEO), or 3) any employee.
Publius, if a corporation is a person, then we should be able to put it in jail. And yet do we do that? Did we, when Sony was guilty of computer hacking? No. Therefore, corporations do not act exactly like human persons. Well, what is this entity, this mediating structure/mediating institution that is a corporation? After all, a person can't have limited liability qua person, can [s]he? (If I'm wrong, where do I sign up?! Sounds like a good insurance policy in the present political climate.) There seem to be key differences here. Why cannot one of those key differences be that the owners of a corporation with limited liability do not own the money in it, in precisely the sense that the owners of of a corporation with limited liability are not fully liable for what the corporation does with its money?
> Let's return to the fundamentals:
>
> Congress shall make no law . . . abridging the freedom of speech, . . ..
>
> Why can you not understand "no law"?
I claim that corporations qua corporations have no possible standing for this to apply to them, just like a river does not have rights and cannot legislate at court. If they did, they could get put in jail. And let me tell you, the American public would just love for certain companies which were knowingly key to the 2008 financial meltdown be put in jail.
Unless, Publius, you believe that Congress can sign into law that Republicans have limited liability in comparison to Democrats, or vice versa? Do you really think such a thing would be considered constitutional?
> See Speiser v. Randall (1958) and FCC v. League of Women Voters, 468 U.S. 364 (1984).
Let's see how you answer the above before I get into this. I may have to meet up with a lawyer friend to chat about this—it's been too long since we've met up anyway. In the meantime, I'd like an answer to this:
> > Publius: Limited liability comes up in these discussions because someone always has the "clever" idea to hold limited liability protection hostage in return for a corporation's free speech rights.
> Luke: Wait, where else has this been suggested? I'd like to read about it.
You seem much better equipped to address that than I. I've not done much thinking about Citizens United.
> If it helps, I agree that "limited liability" is not a Constitutional right. It is a creation of Congress. Congress could repeal it tomorrow.
ReplyDeleteYes. That helps a lot.
> Let me give the long version. It is impermissible for the government, in return for the special advantage of being a (limited liability) corporation, to limit the free speech rights of 1) the corporation itself (an association of people), 2) any officer of the corporation (including the CEO), or 3) any employee.
Why? We have already established that people can voluntarily surrender their rights in exchange for consideration from the government (e.g. plea bargains).
Here's another example: doctors surrender some of their free speech rights when they accept a license from the government to practice medicine. Doctors are no longer free to, for example, tell people to refuse all medical treatment and put their faith in God to heal them. No sane person argues that this is unconstitutional.
> Congress shall make no law . . . abridging the freedom of speech, . . ..
> Why can you not understand "no law"?
Because freedom of speech has *never* been absolute. We have already agreed that it is within the purview of Congress to limit the free speech of foreign governments. There are slander and libel laws. There are the constraints on licensed professionals I mentioned earlier. Donald Trump just reinstated a gag order on talking about abortions for any organization that received government funds. That constraint is odious and ultimately counter-productive, but no one argues that it is unconstitutional.
Neither of the cases you cited refutes that in any way.
Keep Calm
ReplyDelete@Ron
>Why? We have already established that people can voluntarily surrender their rights in exchange for consideration from the government (e.g. plea bargains).
Well, no, we haven't established that people can voluntarily surrender their rights in exchange for consideration from the government.
Your 6th amendment example isn't very well thought out. Consider: the defendant could plead guilty. It's inconsistent to allow the defendant to dispense with every form of trial by a plea of guilty, yet forbid him to dispense with a particular form of trial by consent. See Patton v. United States (1930).
@Ron
>Here's another example: doctors surrender some of their free speech rights when they accept a license from the government to practice medicine. Doctors are no longer free to, for example, tell people to refuse all medical treatment and put their faith in God to heal them. No sane person argues that this is unconstitutional.
You mean like Dr. Susan Richards, M.D.?
This is a particularly poor area to mine for examples, as "professional speech" has been lightly litigated.
Bolt And Fastener Opinions Corporation
ReplyDelete@Luke
>After all, a person can't have limited liability qua person, can [s]he? (If I'm wrong, where do I sign up?! Sounds like a good insurance policy in the present political climate.)
You hit upon the method - insurance. You can buy insurance to transfer liability from you to someone else. That's civil liability, of course, not criminal.
Agents of the government typically have limited liability.
@Luke
> There seem to be key differences here. Why cannot one of those key differences be that the owners of a corporation with limited liability do not own the money in it, in precisely the sense that the owners of of a corporation with limited liability are not fully liable for what the corporation does with its money?
I think you'll have trouble attracting investors when "the owners of a corporation with limited liability do not own the money in it."
>I claim that corporations qua corporations have no possible standing for this to apply to them, just like a river does not have rights and cannot legislate at court. If they did, they could get put in jail.
Say you and Ron meet and write a position paper on the input tariffs for bolts and fasteners. You publish it on the Internet. That is certainly consistent with your free speech rights.
That first position paper went so well, you and Ron decide to incorporate and launch Bolt And Fastener Opinions Corporation. You next write an opinion on the taxation of washers and cotter pins and publish it on your corporate web site. You would expect to still have free speech rights, wouldn't you?
At which point does a corporation, then, lose its free speech rights?
Corporations have standing for free speech since they are associations of individuals.
No one claims that "corporate persons" have the same rights as "natural persons". Which rights they have is decided incrementally via the courts. For example, corporations do not have the right against self-incrimination. [Left as an exercise for the reader: what if the corporation is formed by 1 natural person?]
The focus on "corporate personhood" is misguided. Citizens United did not depend on that concept. See:
The Problem With Citizens United Is Not Corporate Personhood
>the American public would just love for certain companies which were knowingly key to the 2008 financial meltdown be put in jail.
The government needs to go after the executives and other employees for criminal acts. Unfortunately, the government has never been too successful with this.
> > > Publius: Limited liability comes up in these discussions because someone always has the "clever" idea to hold limited liability protection hostage in return for a corporation's free speech rights.
> > Luke: Wait, where else has this been suggested? I'd like to read about it.
see:
Citizens United: corporations are not associations of citizens
Pro/con: Should Citizens United be overturned?
Removing Damages
California Proposition 49, Amendment to Overturn Citizens United Ruling Question (2014)
The Corporate “Free Speech” Racket
Should Corporations Have First Amendment Rights? (see p. 888)
Bolt And Fastener Opinions Corporation
ReplyDelete@Luke
>After all, a person can't have limited liability qua person, can [s]he? (If I'm wrong, where do I sign up?! Sounds like a good insurance policy in the present political climate.)
You hit upon the method - insurance. You can buy insurance to transfer liability from you to someone else. That's civil liability, of course, not criminal.
Agents of the government typically have limited liability.
@Luke
> There seem to be key differences here. Why cannot one of those key differences be that the owners of a corporation with limited liability do not own the money in it, in precisely the sense that the owners of of a corporation with limited liability are not fully liable for what the corporation does with its money?
I think you'll have trouble attracting investors when "the owners of a corporation with limited liability do not own the money in it."
>I claim that corporations qua corporations have no possible standing for this to apply to them, just like a river does not have rights and cannot legislate at court. If they did, they could get put in jail.
Say you and Ron meet and write a position paper on the input tariffs for bolts and fasteners. You publish it on the Internet. That is certainly consistent with your free speech rights.
That first position paper went so well, you and Ron decide to incorporate and launch Bolt And Fastener Opinions Corporation. You next write an opinion on the taxation of washers and cotter pins and publish it on your corporate web site. You would expect to still have free speech rights, wouldn't you?
At which point does a corporation, then, lose its free speech rights?
Corporations have standing for free speech since they are associations of individuals.
No one claims that "corporate persons" have the same rights as "natural persons". Which rights they have is decided incrementally via the courts. For example, corporations do not have the right against self-incrimination. [Left as an exercise for the reader: what if the corporation is formed by 1 natural person?]
The focus on "corporate personhood" is misguided. Citizens United did not depend on that concept. See:
The Problem With Citizens United Is Not Corporate Personhood
>the American public would just love for certain companies which were knowingly key to the 2008 financial meltdown be put in jail.
The government needs to go after the executives and other employees for criminal acts. Unfortunately, the government has never been too successful with this.
> > > Publius: Limited liability comes up in these discussions because someone always has the "clever" idea to hold limited liability protection hostage in return for a corporation's free speech rights.
> > Luke: Wait, where else has this been suggested? I'd like to read about it.
see:
Citizens United: corporations are not associations of citizens
Pro/con: Should Citizens United be overturned?
Removing Damages
California Proposition 49, Amendment to Overturn Citizens United Ruling Question (2014)
The Corporate “Free Speech” Racket
Should Corporations Have First Amendment Rights? (see p. 888)
> Well, no, we haven't established that people can voluntarily surrender their rights in exchange for consideration from the government.
ReplyDeleteActually we have, you're just too dim to see it. Your own example actually supports my position:
> the defendant could plead guilty.
Yes, of course. When a defendant pleads guilty they voluntarily waive three constitutional rights: the sixth-amendment rights to trial by jury and to confront witnesses against them, and the fifth amendment right to not self-incriminate.
Most people plead guilty in exchange for a reduced sentence, i.e. in exchange for consideration from the government. I don't know how this could possibly be any clearer.
@Publius:
ReplyDelete> You hit upon the method - insurance. You can buy insurance to transfer liability from you to someone else. That's civil liability, of course, not criminal.
The difference makes all the difference. One result of your line of argumentation—whether you intend it or not!—is that corporations involved in influencing politics get to shield their owners from full criminal liability. That is, they can play faster and looser with ethics and morality and agreed-upon conventions when impacting who will lead us. And you haven't voiced a single problem with this—unless I've missed it?
> > There seem to be key differences here. Why cannot one of those key differences be that the owners of a corporation with limited liability do not own the money in it, in precisely the sense that the owners of of a corporation with limited liability are not fully liable for what the corporation does with its money?
> I think you'll have trouble attracting investors when "the owners of a corporation with limited liability do not own the money in it."
Do you think picking that statement out of context may distort what I was saying? After all, you surely also know that a corporation cannot do just anything and keep that limited liability shield up, right?
> That first position paper went so well, you and Ron decide to incorporate and launch Bolt And Fastener Opinions Corporation. You next write an opinion on the taxation of washers and cotter pins and publish it on your corporate web site. You would expect to still have free speech rights, wouldn't you?
I would have no problem losing limited liability status if I were obviously trying to influence politics. But you have indicated a zone of shade: just when can the government remove your limited liability status? This could be compared to the very real threat of nonprofit status getting removed. This could kill my entire idea. On the other hand, if the government is/becomes that corrupt, maybe the game is lost anyway.
> No one claims that "corporate persons" have the same rights as "natural persons".
Good. So they don't necessary have free speech rights. Because the US Constitution obviously targets human persons. (We can talk about aliens later.) The speech of baboons is not protected by the First Amendment.
> The focus on "corporate personhood" is misguided.
I would have to be convinced that this didn't serve as psychological support, regardless of the actual arguments. But I would also need to spend a lot of time on the actual arguments. This discussion is getting extensive enough that I would appreciate a suggestion of two books, one from each "side". Or maybe more than two, because there are not always just two sides.
> The government needs to go after the executives and other employees for criminal acts.
But... limited liability? (I don't know all the ins and outs of what it can and cannot shield, so I'm mostly being tongue-in-cheek.)
> Pro/con: Should Citizens United be overturned?
Thanks for this and the other links. I do understand that the Left is threatening free speech in all sorts of ways, and that Hillary's proposal here is in-line with that. But why not just decrease the size of the federal government? Then it being the only entity with lots of power would be false, for no entity would have that much power. State governments and localities could do more than they are now, using technology to share knowledge and wisdom that was harder to do when centralization was all the rage. Then ambition can be set against ambition.
Fiat Lux
ReplyDelete@Ron
>Actually we have, you're just too dim to see it. Your own example actually supports my position:
I blaze like RMC 136a1; if I appear dim, it is because your ignorance is plunging to deeper depths where light cannot penetrate.
>> the defendant could plead guilty.
>Yes, of course. When a defendant pleads guilty they voluntarily waive three constitutional rights: the sixth-amendment rights to trial by jury and to confront witnesses against them, and the fifth amendment right to not self-incriminate.
Most people plead guilty in exchange for a reduced sentence, i.e. in exchange for consideration from the government. I don't know how this could possibly be any clearer.
Yet it is no so simple. The defendant could choose a bench trial, perhaps receiving no sentencing benefit. Furthermore, the defendant can only waive a jury trial with consent of the government. In addition, some States (e.g., Florida) may require a jury trial for certain cases, such as those involving the death penalty.
I think I see where you're trying to go with your line of reasoning -- but it's a dead end.
Let's return to the fundamentals again:
A "right" means that it can be waived: you may exercise the right, but do not have to. In contrast, a "duty" or "obligation" cannot be waived. The right to free speech does not mean you must speak, not does the right to bear arms mean that you must bear arms. You may decline to exercise, or waive, a right.
Just because you can give up a right doesn't mean that Congress can condition benefits on you giving up free speech rights.
Consider this hypothetical example:
A condition for receiving college financial aid is that the student not advocate for nuclear disarmament. [This is unconstitutional]
The Principle:
Beneficiaries of federal benefits retain their Constitutional rights. Congress cannot do through their spending power what they cannot constitutionally due outside this power. Because Congress can not abridge First Amendment rights by making laws, neither can it do so by placing restrictions on the money in allocated. See Speiser v. Randall (1958). In addition, the government cannot attach conditions to the receipt of benefits that it could not impose constitutionally through its rule making powers. See Perry v. Sindermann (1972).
"[The government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests-especially his interest in freedom of speech. . . . [T]his would allow the government to 'produce a result which [it] could not command directly.'" [From Perry]
> if I appear dim, it is because your ignorance is plunging to deeper depths where light cannot penetrate.
ReplyDeleteWe'll see.
> Yet it is no so simple.
Actually, it's quite simple. You are trying to make it complicated in order to avoid admitting that you are wrong.
> The defendant could choose a bench trial, perhaps receiving no sentencing benefit.
So? How does that in any way refute my position?
> Furthermore, the defendant can only waive a jury trial with consent of the government.
So? How does that in any way refute my position?
> In addition, some States (e.g., Florida) may require a jury trial for certain cases, such as those involving the death penalty.
So? How does that in any way refute my position?
> I think I see where you're trying to go with your line of reasoning -- but it's a dead end.
If you believe that then you have not understood my position.
> Let's return to the fundamentals again: A "right" means that it can be waived: you may exercise the right, but do not have to. In contrast, a "duty" or "obligation" cannot be waived. The right to free speech does not mean you must speak, not does the right to bear arms mean that you must bear arms. You may decline to exercise, or waive, a right.
Awesome. We agree on this.
> Just because you can give up a right doesn't mean that Congress can condition benefits on you giving up free speech rights.
Of course it means that. That is why plea bargains are constitutional.
> Consider this hypothetical example: A condition for receiving college financial aid is that the student not advocate for nuclear disarmament. [This is unconstitutional]
That is actually far from clear. But here is an example that is clear: government employees are barred from making political statements in their official capacity as government employees. Even non-political speech can be constrained. Donald Trump shut down tweets from the park service after they sent out photos showing the small crowds at his inauguration. No one is arguing that this is unconstitutional.
This is the crucial point that you are missing: your rights can change depending on the role you are in. You have rights as a shareholder that you do not have as an individual, and you have rights as an individual that you do not have as an employee, or as an officer of a company.
Note by the way that no one is waiving any individual rights when they accept limited liability. As Luke has pointed out, all of the officers and employees of the company are free to say whatever they want on their own dime and their own time. The only right that is in dispute is the right to act *on behalf of the company*, i.e. to make political statements using assets that belong to the *shareholders*.
> The Principle: Beneficiaries of federal benefits retain their Constitutional rights.
Not if they voluntarily waive those rights in exchange for those benefits.
It Is, Except When It Isn't
ReplyDelete>> Yet it is no so simple.
@Ron
Actually, it's quite simple. You are trying to make it complicated in order to avoid admitting that you are wrong.
>> The defendant could choose a bench trial, perhaps receiving no sentencing benefit.
So? How does that in any way refute my position?
>> Furthermore, the defendant can only waive a jury trial with consent of the government.
So? How does that in any way refute my position?
>> In addition, some States (e.g., Florida) may require a jury trial for certain cases, such as those involving the death penalty.
So? How does that in any way refute my position?
You give the "right to a jury trial" as an example of a right that a defendant may waive in exchange for a benefit from the government. Except . . . when the defendant can't waive it. Here are the reasons why a defendant may not be able to waive it:
1. The prosecutor and the judge don't agree to let him waive it
2. State law requires a jury trial for his offense and potential punishment
Just what kind of "right" is this? The defendant cannot act unilaterally - he needs permission to act. The defendant may be barred from acting at all by law: in this case, he has no "right" at all.
A poor example of "waiving rights." You should have gone with warrantless searches.
E R R O R
ReplyDelete>> Just because you can give up a right doesn't mean that Congress can condition benefits on you giving up free speech rights.
>Of course it means that. That is why plea bargains are constitutional.
This is your error right there. There are at least 2 components to your error:
ERROR 1: Thinking that all rights would be treated similarly by the courts, that there would be analogous and logical consistency between opinions.
Reality: Each right is litigated separately. Each right has it's own case law history. The reasoning to arrive at each opinion is not necessarily similar between the different rights the court has ruled on.
ERROR 2: Thinking that the application and treatment of rights in Amendments 2 to 33 can be analogously applied to the First Amendment. The First Amendment gets different, special, treatment as only it contains the words "Congress shall make no law . . .". Free speech, rights, in particular, are afforded the broad protection. A whole line of scholarship concerns only First Amendment doctrine.
In addition, The Supreme Court has already ruled on coercive schemes such as you propose and found them unconstitutional. Let's review the reasoning behind the two key decisions:
Beneficiaries of federal benefits retain their Constitutional rights. Congress cannot do through their spending power what they cannot constitutionally due outside this power. Because Congress can not abridge First Amendment rights by making laws, neither can it do so by placing restrictions on the money in allocated. See Speiser v. Randall (1958). In addition, the government cannot attach conditions to the receipt of benefits that it could not impose constitutionally through its rule making powers. See Perry v. Sindermann (1972).
"[The government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests-especially his interest in freedom of speech. . . . [T]his would allow the government to 'produce a result which [it] could not command directly.'" [From Perry]
Finally, let's pull out a special message that Justice Black has for you in his concurrence to Speiser v. Randall:
"I am convinced that this whole business of penalizing people because of their views and expressions concerning government is hopelessly repugnant to the principles of freedom upon which this Nation was founded and which have helped to make it the greatest in the world."
> Thinking that all rights would be treated similarly by the courts
ReplyDeleteI don't think that.
> Thinking that the application and treatment of rights in Amendments 2 to 33 can be analogously applied to the First Amendment.
Why is that an error? Of course it *can* be. None of these rights are consequences of the laws of physics, they are policy decisions that We The People make in order to form a more perfect union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty. We The People can decide whether extending freedom of speech to corporations advances those goals or not, just like we get to decide whether commercial speech is protected under the first amendment (it isn't), whether slander and libel are protected (they aren't), whether government officials can be constrained in what they say in the course of performing their duties (they can), etc. etc. etc.
> The First Amendment gets different, special, treatment as only it contains the words "Congress shall make no law . . ."
Yes, that's true. And yet the law is nonetheless chock-full of restrictions on speech.
@Publius, to what extent does this whole argument reduce to a deep desire to threaten the considerable rhetorical power of the government's own exercise of speech?
ReplyDelete> Finally, let's pull out a special message that Justice Black has for you in his concurrence to Speiser v. Randall:
>> I am convinced that this whole business of penalizing people because of their views and expressions concerning government is hopelessly repugnant to the principles of freedom upon which this Nation was founded and which have helped to make it the greatest in the world.
I happen to know something about what it takes to have anything like true freedom: rough equality of power. Recall your de Tocqueville:
>> AMONG the novel objects that attracted my attention during my stay in the United States, nothing struck me more forcibly than the general equality of condition among the people. I readily discovered the prodigious influence that this primary fact exercises on the whole course of society; it gives a peculiar direction to public opinion and a peculiar tenor to the laws; it imparts new maxims to the governing authorities and peculiar habits to the governed. (Democracy in America, Author's Introduction)
Well, there's another option having to do with Mt 20:20–28, but I'm wary of relying on that in a society where the love of many has grown so cold. Anyhow, let's look at what happens when that "general equality of condition" erodes:
>> The empirical study is summed up in a number of propositions about the relationship between rationality and power, concluding that power has a rationality that rationality does not know, whereas rationality does not have a power that power does not know. (Rationality and Power: Democracy in Practice, 2)
So, there is a need to balance power instead of let one or a few powers grow without bound, leaving the rest in dust. I do take the First Amendment to be viewed by many to play a critical part in this goal. But can you present a stance which doesn't merely let corporations become "few powers", perhaps as portrayed in the TV series Continuum? I suspect rights are always in service to some telos; I doubt they are intelligible otherwise. So, let's break through the methodological positivism and see what is underneath. Yes?
P.S. Please also see this comment of mine, which originally got spam-filtered.