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Thursday, February 18, 2010

The goals of an amendment dealing with rights of corporations

This is the first page of this blog dealing with an attempt to write a proposal for a constitutional amendment to address the recent Supreme Court ruling.

I don't know how to write a good amendment.
I do know what I want it to cover.
So I'm putting this out to try to get others to help.

Proposal for constitutional amendment

Intent: Address recent supreme court ruling granting rights to corporations

The central view here is that corporations do not have rights. The 10th amendment specifically assigns rights to people and states, only.

Intent: Permit people to maintain rights as a group

The SC ruled that people may come together as a group and still maintain rights. There is no issue with this -- it is valid. But that doesn't mean that all possible groupings must have all possible rights. A group of protesters that engage in a political protest, and group arrest, is one thing; a corporation that cannot go to jail is something else.
Or does a corporation, upon existing for 18 years, gain the right to vote?
The key: People have rights. Groups of people have rights as the people. Corporations are fictional entities that do not themselves have rights, while the people in those corporations do.

Intent: Clarify that judges have no authority to create law

Article one gives authority to create law only to congress.
The key here is the "Duck test" (aka: If it floats like a duck, and weighs the same as a duck, ...) : If it looks like a law, restricts like a law, or otherwise behaves like a law, then only congress can do it. A judge cannot do it.

Intent: Clarify that the constitution overrides older common law that it contradicts

Common law that disagrees with the constitution is invalid under the constitution.

Intent: Clarify that corporations have no authority to create law

Contract "law" is mostly common law, not statute law. Most of it is NOT law passed by congress. Much of it is created by judges after the adoption of the constitution, and thus wrong.
Contracts that are freely entered into by both parties -- with both parties able to determine what they will and will not do -- is one thing.
Laws that state "Base contracts must do X; agreements to change X must be agreed by both parties, and compensation given for giving up rights granted" are OK.
Contracts that are not freely modifiable -- contracts where a business basically states "If you want to business with us, then these are the rules we will use, you have no say" are effectively creating law. Such contracts are almost always one-sided and unfair. Such contracts always pass the "duck test" of something that looks and behaves like a law that is not created by congress.
Such contracts violate article 1 of the federal constitution. If it looks like a law, restricts like a law, or otherwise behaves like a law, then only congress can do it. A corporation cannot do it.

Intent: Enforce the 14th amendment

The 14th amendment actually calls for the removal of federal officials that violate the constitution.

Intent: Enforce that the constitution is more important than prior judicial rulings

According to the 14th amendment, if you take an oath of office to uphold the constitution, and place anything else more important, you can be removed from office.

Any judge that claims that a ruling of the Supreme Court is more important than the constitution is in violation of this.
This means that any trial court judge has both the authority and the requirement to overturn any Supreme Court ruling if the judge is of the opinion that it violates the constitution.

Intent: Enforce the constitutional structure of federal law: Statute law, with jury convictions, and inherited common law

It is absolutely amazing that judges claim we live under common law.
* Common law has judges making laws -- article one prohibits this.
* Common law has the previous rule of courts as the most important -- the 14th amentment prohibits this
* Common law has guilt determined by judges -- we have both juries, and a constitutional requirement that any overturning of a jury decision be done according to law. In all areas, the constitution puts the representatives of the people in charge of the judges.
* Common law has judges in charge. We have laws passed by the people, with jury oversight in charge, according to the constitution. Judges have routinely given themselves more power and authority, and less and less to juries. Note that in California, it is common for judges to instruct juries that if the facts fit the law, they must return guilty.  Federal appeals courts, and the supreme court, have consistently ruled that jury nullification -- returning innocent when the law is wrong -- is valid, yet judges permit themselves to lie to reduce the power and authority of juries.

Equally, we do inherit common law -- British CL as of 1776, and additional common law created between 1776 and either the creation of the constitution in 1787 or its adoption in 1789. Note that the constitution explicitly acknowledges the existence of, and right of jury trial in, any case involving such common law (and more than $20.)

Intent: Restrict interstate corporations to actually follow the laws

The goals here:
1. All corporations must follow the laws of their home state.
2. If they act/advertise/solicit/accept business across state lines, then they must follow federal law and regulations, and the laws and regulations of the destination state

This is amazing. I grew up with TV ads that routinely said "Not valid in ...", and then listed a number of states, adding "or where void or prohibited". It would be like saying, "I'm in Nevada. Gambling is legal. You can place a phone call to me, and make a gambling bet over the phone according to Nevada law from anywhere in the country". That would never pass the courtroom test.

Yet apparently, that is the way things now work. You can be a credit card company, based in one state, and lend money to someone in another state, and force them to use your laws, and ignore any federal restrictions or regulations until/unless congress passes a law otherwise.

Even if the state you lend into -- California -- has officially determined that lending to someone in California is subject to California laws. Yes, according to the comptroller of currency, if it's in the un-alterable contract, and supported by the law of state X, then the credit card company can do whatever it wants, regardless of your state's laws, regardless of the validity of the contract (creating private law in violation of article 1, being a one-sided agreement not subject to alteration or negotiation), or anything else.
3. Recognize that interstate corporations are the most restricted legal entity possible in our system:
* They do not have all the rights of individuals.
* Acting interstate, they are subject to federal regulations and laws, and as such cannot do anything that the federal government cannot grant (amendment 10 reserves that to people and states).
* They are subject to restrictions of two states and the federal government.

Intent:Establish that the existing constitution does not permit interstate corporations to do more than the government can

The Treasury Department routinely hires private corporations to do things -- the two biggest are the federal reserve bank and the internal revenue service -- both of which are private corporations. Both of which try to do, and do, things that the government would not be able to, claiming that as corporations they are not subject to restrictions of the government.
The idea of "We'll hire someone to do what we cannot" is flawed.
NB: Hiring a corporation is not by itself a bad thing. Hiring a corporation and then never firing it no matter how much it messes up is. (*) Refusing to issue guidelines underwhich another corporation can say "We can do it better for less" is. Hiring a corporation beholden to private stock holders, rather than requiring that it treat citizens of the united states as the stockholders, is.
(*): The US Supreme court, when asked to rule on the legality of the IRS doing levy, ruled that the constitution does not prohibit private companies from doing levy when congress has that authority and delegates it to the private company. It only requires that the company provide due process, and determined that as long as the IRS's regulations satisfy due process, and the IRS never makes any errors that compromise due process, then it is valid. Do you really think that the IRS has a zero error rate, as required by the courts? Or do you think that the people affected by it can't afford to sue it. What do you think the backlog against the US will be when the US's agent is found to be in violation and due for penalties? What is the risk to the US from a class action suit against the IRS? Answer: The courts have ruled that you can't sue the government unless it agrees to be sued (even if its agents mess up) -- why? That is not in the constitution.

Intent: All of the above is existing constitution, not new changes, despite any invalid court ruling violating the above

Lacking this clause, corporations will defend their actions up til now as "Perfectly OK". We need to make sure that this is not OK; that illegal and unconstitutional actions taken by corporations prior to today are still considered actionable and illegal, and punishable.

Intent: Give authority under the 14th amendment to remove officials who violate the oath of office to the House of Representatives

Right now it isn't clear who has it.

It cannot stay with the senate -- not only do they almost never impeach federal officials who need it, but the recent filibuster actions make it clear that the senate cannot be relied on for action.
This is new.

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