Category Archives: Constitution

CISPA: Your Privacy At Severe Risk Of Government‑Corporate Surveillance

Following up on the earlier CISPA post, Anjali Dalal of AlterNet has a concentrated summary of CISPA and all the last-minute amendments applied last Thursday evening before the bill was passed unexpectedly by the House. Many of the amendments appear to have been inserted (and others deleted) in defiance of reservations expressed by the Electronic Frontier Foundation, the American Civil Liberties Union and the Center for Democracy and Technology, all of whom were at least in theory invited to “participate” in amending the bill. Here’s Dalal:

Learning their lesson from SOPA, the House decided to invite civil liberties constituencies to the table so as to avoid having to witness another implosion of a major legislative goal. As a result, a number of amendments were introduced that began to address some of the most egregious parts of the bill, and, in response, some members of the civil liberties community decided to withhold further, vocal opposition. Then, on Thursday evening, it all fell apart. As Josh Smith at the National Journal described, the CISPA that was passed by the House on Thursday didn’t reflect this negotiation: …

Ah, the grand Republican tradition, let everyone have their say and then pass whatever they damned well please. “We listened to you!” they will doubtless protest. Yes, fuck them dead, they did. An overwhelming number of the amendments ultimately incorporated were Republican, while most Democratic amendments were omitted by the Republican-dominated House Rules Committee.

The linked AlterNet article discusses quite a few amendments. All I can say on a quick reading is that the words “warrantless” and “immunity” appear often, allowing warrantless searches by corporations (!) to be reported to government agencies with immunity for the corporations involved. These GOP guys ‘n’ gals really, really don’t like the “no search without a warrant” principle, and they really, really do like subcontracting legitimately government-only activities to private corporations.

Do you get the feeling that that pompous, ritualistic reading of the Constitution at the opening of the last House session was totally lost on the members of one party, and maybe some of the other party’s members as well?

Does anybody know the status of Obama’s original threat to veto this bill if it crosses his desk? Has he caved yet?

Are We A Nation Of Laws?

TPM’s David Kurtz and his commenter ML offer what is, in my opinion, a deep thought about the Supreme Court’s (and especially Justice Scalia’s) apparent willingness to give credence to the Commerce Clause attack on the health care law. ML says that the reach of that attitude is much deeper than it might appear at first glance:

If SCOTUS ditches stare decisis here, sure their credibility will take a hit, but more importantly: we, as a polity and individuals, would have no reason to think we could pass any major regulatory legislation (unless, of course, we took the political commitments of the justices as our guide). SCOTUS would be potentially freezing the statutory law in place. What is Congress supposed to do with its time if everything it thought it knew about the law gets chucked out the window? How does it pass legislation? How does it change *existing* legislation? Are only Republican Congresses allowed to pass laws?

Stare decisis and all the reasons we follow precedent command that the mandate passes. … if the mandate is overturned, we’re ruled by men, not laws.

You know, I think if Justice Scalia or Chief Justice Roberts were given an opportunity to legislate ex nihilo rather than ruling on cases based on existing precedent, they would do exactly that. And if they did that, the Supreme Court would become a ruling committee superior to the other two branches of government… and the fundamental basis of our tripartite government would be changed. I, for one, reject the notion that that should be permitted. If the Court seeks to legislate instead of Congress, then it has become a political branch as surely as the two intended political branches, but a political branch in which the polity has no say in the choice of members… and we who thrive on democracy have a serious problem on our hands.

Kucinich Condemns Obama’s ‘Assault On The Constitution’

Rep. Dennis Kucinich (D-OH) may have lost his primary battle to Marcy Kaptur, but he is clearly not about to sit down and STFU, however much the Obama administration may wish him to do so. Here’s Kucinich, quoted by Sahil Kapur of TPM:

“Any assault on the Constitution ought to be challenged,” Kucinich told TPM in a Thursday interview at his Capitol Hill office. “This is absolutely an assault on the Constitution.”

“The idea that the United States has the ability to summarily execute a US citizen ought to send chills racing up and down the spines of every person of conscience,” he argued. “The fact that our government can set itself up as policeman, prosecutor, judge, jury and executioner, all wrapped into one fatal moment, should cause every person who loves this country to be deeply concerned about the direction we’re going.”

(Emphasis mine.) Once, long ago, I supported Kucinich in a presidential run. Another time, I supported John Kerry, but ended up wishing I’d supported Kucinich… the end result was the same (the GOP took the presidency by hook or crook), and Kucinich is a much closer fit to my principles than Kerry. It is a sign of the accelerating, intensifying decline of our nation that Kucinich feels he has no choice but to condemn publicly the actions of a president from his own party. He is righteous in doing so, and I stand with him.

What RIAA Won’t Tell You: There Is A Better Way To Protect Artists

Cary H. Sherman, CEO of RIAA, in an op-ed in the NYT, What Wikipedia Won’t Tell You, whines and grouses about the non-passage of SOPA and PIPA. He blames the Internet, in essence, for making it possible to apply political pressure that his organization cannot control, to see to it that he cannot achieve his ends, which not everyone agrees have merit. Boo-hoo, Mr. Sherman. Cry me a river… or is that phrase copyrighted by a member of your organization?

Sherman says society has a “constitutional” responsibility to support the goals of his organization, which as far as I can tell are to squeeze the public hard and the artists harder in an effort to gather all the money into the recording industry itself. The Constitution has no such damned thing in it: the copyright provision, Article I Section 8 Clause 8, pursues “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Constitution never mentions an industry trade association, only “Authors and Inventors”. When you contemplate how RIAA has inserted itself into the middle of recording contracts, you’ll understand why they call it the Recording Industry Association of America and not the Recording Artists Association of America. Believe me, apart from choosing who becomes famous and who doesn’t, RIAA doesn’t do one damned thing for artists.

In any case, Mr. Sherman’s diatribe was not the starting point of this post: Dean Baker of CEPR comes to a conclusion similar to my own. But Mr. Baker goes a step further: he proposes that we effectively end copyright altogether (apparently without removing the provision from the Constitution), and gives some details of a system that would better protect the ability of artists and authors to make a living without destroying free speech on the Internet or benefiting the middle‑men who so greedily insert themselves into the compensation chain of said artists and authors. It would be particularly sweet to see legislation adopted that implemented such a system (please read Baker’s article for particulars), because it could well leave RIAA holding a large bag of copyrights, but as artists would be otherwise protected in their livelihoods, render copyright itself valueless to the holder.

It would certainly beat hitting 14- 12-year-old kids with fines approaching, in some cases, a million dollars, wouldn’t it? (Apologies for no Fox link; the 2003 story is at http://www.foxnews.com/story/0,2933,96797,00.html)

Two Essential Posts By Greenwald On Civil Liberties We Used To Have

In my humble opinion, these two recent articles by Glenn Greenwald are both absolutely essential reading:

Western justice and transparency:

Greenwald’s vehicle is the case of Bilal al-Berjawi, former UK citizen stripped of his citizenship, targeted by the US for assassination without any due process, unable to talk to lawyers who might introduce an appeal in court because the US was monitoring his communications, and eventually assassinated by a drone/missile attack after a call from his wife informing him of their newborn child was intercepted and (apparently) used to locate him. Greenwald summarizes the implications:

Obviously, those concerns [about interception of al-Berjawi’s phone calls] were valid. So first the U.S. tries to assassinate people, then it causes legal rulings against them to be issued because the individuals, fearing for their life, are unable to defend themselves. Meanwhile, no explanation or evidence is provided for either the adverse government act or the assassination: it is simply secretly decreed and thus shall it be.

So much for Berjawi’s Sixth Amendment right to “be informed of the nature and cause of the accusation” against him. It’s a secret… from Berjawi while he was alive, from any lawyers who might have acted in his behalf, and from the public.

Two lessons from the Megaupload seizure:

The day after our grand demonstration of displeasure at the attempts of MPAA and RIAA to control the entire Internet on mere accusations of piracy (again without due process) through their stable of tame members of Congress acting through the proposed SOPA/PIPA legislation, the DoJ seized Megaupload.com, shut down its domain name service (DNS) thereby making it invisible on the Internet, seized or froze millions of dollars of its assets, and indicted the site’s owners, charging that they “deliberately aided copyright infringement” (Greenwald) … all based on unproven accusations of copyright infringement. In other words, the DoJ acted as if SOPA/PIPA were effectively already law, instead basing their actions on a 2008 law. Greenwald:

(1) It’s wildly under-appreciated how unrestrained is the Government’s power to do what it wants, and how little effect these debates over various proposed laws have on that power. Contrary to how it was portrayed, the Obama administration’s threatened veto of the NDAA rested largely on the assertion that they did not need a law vesting them with indefinite detention powers because they already have full power to detain people without a trial: not because any actual law expressly vested that power, but because the Bush and Obama DOJs both claimed the 2001 AUMF silently (“implicitly”) authorized it and deferential courts have largely acquiesced to that claim. …

(2) The U.S. really is a society that simply no longer believes in due process: once the defining feature of American freedom that is now scorned as some sort of fringe, radical, academic doctrine. That is not hyperbole. Supporters of both political parties endorse, or at least tolerate, all manner of government punishment without so much as the pretense of a trial, based solely on government accusation: imprisonment for life, renditions to other countries, even assassinations of their fellow citizens.

I have barely sketched the essence of what Greenwald expounds at length. But even the image in the sketch evidences a terrible reality: our civil liberties as explicitly granted in the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the US Constitution are now wholly denied at the pleasure of our government. If we consent to this denial, we are no better off than pawns in a game played by a relentless dictatorship.

At the very least, if you do nothing else in response, consider withholding your vote from Obama in November, even if you voted for him in 2008. It is my firm belief that leaders do not change their fundamental nature, and Obama has revealed in his first term that his nature is that of a tyrant, concealing his tyranny behind a façade of human concern. Do not be fooled. No, I am not advocating replacing him with any of the Republican candidates: the worst of our plight is that the totalitarian rules of the game are now accepted by both major political parties. We must find another way. At this point, I cannot say what it would be. But I hear the sound of our nation’s Founders shifting uneasily in their graves, the deceased defenders of Western democracy wailing in their tombs, imploring us to put things right. We cannot do it in an instant… but do it we must.

Oh, and by the way… be sure to keep your head data out of the cloud.

Corporate Personhood: Where Did It Come From?

NTodd of Dohiyi Mir provides us an answer, one of the few I’ve seen online that offers enough detail about the persons involved in the decision to awaken you, the reader, to the genuine perfidy in the origin of the concept of corporate personhood. I’ve known about this for a few years, having been informed by… well, I don’t remember; it may have been Thom Hartmann or Glenn Greenwald in one of their excellent books, but somehow, when the subject of corporations as persons is brought up today, one basic fact is never discussed (other than the self-evident fact that they aren’t… people, I mean): Prior to Citizens United, no court, and certainly no Supreme Court, ever ruled that corporations are de jure persons. That’s right. You thought otherwise? You’ve bought into the original, deliberate fraud, perpetrated by a late-19th-century Supreme Court clerk, J. C. Bancroft Davis, while he was recording the results of the 1886 decision Santa Clara County v. Southern Pacific Railroad. Bancroft Davis, who had prior ties with the railroad at a high level (hmm… railroad ties? if only someone had driven a spike in him…) before his days as a court recorder, inserted the following paragraph as a preface to the text of the decision:

The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.

No, it’s not part of the decision itself. No, it’s not legally binding upon anyone. It’s a headnote by a clerk. But it has transformed corporate leaders’ thinking about the entities they head, and thanks to Roberts et al in Citizens United, it has become, for all practical purposes, the law of the land.

NTodd can tell you about the proposed constitutional amendment probably necessary to remedy this gross misconstruction. Can we do it before it’s too late? I have my doubts. But we have to try. I have advocated only one constitutional amendment in my lifetime, the ill-starred Equal Rights Amendment, but it’s time I supported another, this one by Sen. Bernie Sanders (I-VT). Follow NTodd’s links and see what you think. This is worth your most serious attention.

Bernie Sanders’s Proposed Constitutional Amendment

Unlike some right-wing nutjobs in the Senate, Sen. Bernie Sanders has proposed only one constitutional amendment (.pdf), ever. It is an attempt to undo the potentially fatal damage done to our democracy by the Supreme Court’s Citizens United v. Federal Election Commission decision, in which the Roberts Court, by a bare majority of 5-4, effectively ruled that corporations are people for First Amendment purposes, and thus political spending by corporations is constitutionally protected speech and therefore may not be restricted. The premise is so absurd one would hardly believe it, but Mr. Chief Justice Roberts engineered the result (search the wiki for “June 29, 2009”) by ordering the parties to re-plead the case on different grounds… as Justice Stevens argued in his dissent, “the Court chose to hear argument on issues the parties had agreed were not to be presented to the Court and that it reached a decision on constitutionality when it could have found for the plaintiffs on narrower grounds.”

But The Five prevailed; Roberts obtained his constitutional argument, and the rest is history. The 2012 election will be overwhelmingly influenced by corporate-financed campaigns and ads, most of them in favor of candidates of the party with more money… you know which, though the Dems are doing their damnedest to catch up in this antidemocratic (word chosen deliberately) race.

Won’t those corporate contributions be balanced by contributions from individual citizens? Um, Karl Rove has reportedly already spent a half million dollars of mostly corporate money in the campaign against Elizabeth Warren alone, and it’s a year from the elections! Few individuals have the money to play this game, and even fewer are anything other than Republicans. Individual participation in our purported democracy will effectively be limited to voting, and who knows how long that will last, or even whether the votes are properly tallied. (In sElection 2000, they most emphatically were NOT properly counted.) So America’s mere citizens are about to be effectively disenfranchised by this morally deplorable, purely politically motivated Supreme Court decision.

No wonder Sanders is proposing a constitutional amendment!

I am always slow to support even worthy constitutional amendments. The only one I’ve ever unreservedly supported in the past is the misfortunate Equal Rights Amendment, and we all know what happened to that. But with a few reservations, I do support Sen. Sanders’s amendment. If we don’t do something, our democracy becomes a plutocracy, probably irreversibly so.

I have only one reservation about the wording of Sanders’s amendment: it applies only to for-profit corporations and their equivalents. To me, that sounds like a loophole big enough to drive an old Saturn V moon rocket through. Nonetheless, I am signing the petition of support. It’s the best we’ve got, and we’d better hope there is some way to get it passed.

Citizens United: Corrupt, Not Insane

Odd Man Out discusses Sen. Bernie Sanders’s support of the introduction by two Democratic Represenatives of a constitutional amendment that would have the effect of overturning the Citizens United decision allowing corporations to spend almost unlimited money in political campaigns. OMO also quotes regrettably retired Supreme Court Justice John Paul Stevens in his dissent against Citizens United:

At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

I always have reservations about proposed constitutional amendments. Too many right-wing nutjobs see every proposed constitutional amendment as a green light to start tinkering with our founding document in ways far removed from the spirit of that document. But I admit that for the first time since the failure of the Equal Rights Amendment, I am actually tempted to support an amendment that would eliminate… yes, I said eliminate, which is more, I believe, than what this proposed amendment would do… all corporate opportunity to influence any political campaign by donating money or by spending their own money on, say, TV ads.

Corporations are not persons, no matter what Justice Roberts may have contrived to rule:

  • Corporations are immortal; we mere persons are for better or worse mortal.
  • Persons experience many sources of motivation; corporations, by their founding charter, have one and only one motivation: to make money for their stockholders, public interest be damned.
  • Individuals have limited money with which to broadcast their opinions on political races and issues; corporations generally have vastly more wealth than all but the wealthiest individuals.

There are many ways in which, despite the Roberts Court’s decision in Citizens United, corporations are utterly unlike persons. But these three corporate characteristics… immortality, a legally obligatory focus on shareholder income, and a vast predominance in available resources over those of individuals… are the three that must be overcome if we are to regain our potential as human individuals to influence our own representative democracy. Otherwise, we’ll be overshadowed by the so-called Golden Rule: whichever corporation has the gold, makes the rules. I don’t think that’s what our founders had in mind for us, and I know it’s not what the 99 percent have in mind.

I welcome your (reasonable) opinion on the efficacy and advisability of a constitutional amendment overturning the substance of Citizens United. As usual, no demagoguery and no bullshit, please; your right of free speech does not include a right to be broadcast on this blog.

(H/T Avedon for the link.)

Non-Representative ‘Super Congress’, Here We Come!

I missed this yesterday. From Huffington Post:

WASHINGTON — Debt ceiling negotiators think they’ve hit on a solution to address the debt ceiling impasse and the public’s unwillingness to let go of benefits such as Medicare and Social Security that have been earned over a lifetime of work: Create a new Congress.

This “Super Congress,” composed of members of both chambers and both parties, isn’t mentioned anywhere in the Constitution, but would be granted extraordinary new powers. Under a plan put forth by Senate Minority Leader Mitch McConnell (R-Ky.) and his counterpart Majority Leader Harry Reid (D-Nev.), legislation to lift the debt ceiling would be accompanied by the creation of a 12-member panel made up of 12 lawmakers — six from each chamber and six from each party.

Legislation approved by the Super Congress — which some on Capitol Hill are calling the “super committee” — would then be fast-tracked through both chambers, where it couldn’t be amended by simple, regular lawmakers, who’d have the ability only to cast an up or down vote. With the weight of both leaderships behind it, a product originated by the Super Congress would have a strong chance of moving through the little Congress and quickly becoming law. A Super Congress would be less accountable than the system that exists today, and would find it easier to strip the public of popular benefits. Negotiators are currently considering cutting the mortgage deduction and tax credits for retirement savings, for instance, extremely popular policies that would be difficult to slice up using the traditional legislative process.

I do not believe such a plan complies with the Constitution as it stands: a constitutional amendment, not legislation, is in my opinion the only way such a legislative body, effectively another layer interposed between the citizenry and the actual legislative process, could be legitimately created. And the weight of constitutional tradition is against it. There are two things to note:

  • It would not be a representative body, because only the constituencies of The Twelve would have voted them into office, though they would effectively legislate for the entire nation as Congress does now.
  • It would reduce the power of all other elected members of Congress from those specified in the Constitution and in the rules of the two houses: The Twelve could… and would… introduce legislation which could not be amended, only voted up-or-down. Nowhere in the Constitution do I recall a provision that grants some legislators that power to the exclusion of other legislators. “All animals are equal, but some are more equal than others.”

This is a dangerous path if followed to its logical conclusion. And I did not sign up to be ruled by twelve non-representatives. If this happens, it changes everything about our relationship to our government, and we all have some serious rethinking to do.

(H/T Jane Hamsher.)

AFTERTHOUGHT: Here is the question you must ask yourself: how much of the constitutionally stipulated power of a house of Congress may that house cede to any other body, branch or individual within government? To accept the notion of a “Super Congress,” you must answer “almost all of it, at least on a specific question.” I admit I am very uncomfortable with that answer. We already seem to have great amounts of formerly legislative power ceded to an encroaching executive branch; now we are proposing “miniaturizing” the legislative branch to a dozen people. Add the unitary-executive President, and then we effectively have rule by The Thirteen. Good number, huh?

Does The Fourth Make Republicans Of Us?

Jonathan Turley offers a Harvard study that says YES:

Harvard has released a study in its own unique way of celebrating the Fourth of July with America. Harvard Kennedy School Assistant Professor David Yanagizawa-Drott and Bocconi University Assistant Professor Andreas Madestam argue that Fourth of July celebrations tend to turn people into Republicans and help advance the GOP in elections. I would differ. I think Harvard studies tend to push people toward conservative candidates.

The study suggests that Republicans benefit most from patriotic celebrations: …

Meanwhile, the ACLU regrets to inform us that the predictable-as-clockwork anti-flag-desecration amendment to the Constitution has appeared once again in Congress:

Two bills currently pending before the House and the Senate — H. J. Res. 13 and S. J. Res. 19 — would allow Congress to enact laws banning desecration of the flag. We have heard this all before , and the Supreme Court has firmly struck down any statute that would criminalize “desecrating” the flag. As Mr. Savage famously explained in the quote above, limiting the freedoms protected in our Bill of Rights does not make us more patriotic but instead threatens our core belief system.

Meanwhile, I still have an American flag that is extremely tattered from my having flown it from my car radio antenna right after 9/11/2001, and I was looking into proper disposal of a flag worn past all use. usa-flag-site.org offers the following advice:

The only definitive answer is found in the US Flag Code. TITLE 4 > CHAPTER 1 > Sec. 8(k). It states: “The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning”

In other words, the only difference between one form of desecration of a flag and the ceremonial proper disposal of that same flag is the content of your heart and mind as you burn it. Take care, non-Republican Americans, as you celebrate our Independence Day: burn your flag with honor and respect in your every thought… or Big Brother will deal with you!

AFTERTHOUGHT: If you burn anything at all in Texas under these conditions, you are a damned fool, and probably in violation of one or more statutes. That is certainly true of fireworks; even the big displays are being called off. Just don’t do it.