Corporations as Persons

Every time I mention that I think Citizen's United was rightly decided my liberal friends begin to gag and whine about how terrible it was and how awful it is that "corporations are persons." A new book by Kent Greenfield, https://yalebooks.yale.edu/book/9780300211474/corporations-are-people-too, reminds us there are important reasons for corporations to be considered persons. For example, were corporations not to have the same rights of speech as persons, the New York Times would have lost the battle. The Times is a for-profit corporation yet the decision permitted it to publish classified information from Daniel Ellsberg. Ralph Nader's public interest group sued and won on behalf of pharmaceutical corporations to advertise. The issue was whether they had a right to commercial speech. The dissent in that case, was by the conservative Chief Justice Rehnquist; speech for corporations was considered to be a progressive cause.

Fast Forward several decades to Citizens United when that decision raised a firestorm of protest. Most people didn't know that the issue was protection of political speech at its best. The Court said the Federal Election Commission could not prevent the showing of a pay-per-view anti-Hillary movie within thirty days of the election. They went on to reiterate the importance of free speech for corporations as persons. That concept, enshrined by Justice Marshall in Dartmouth v Woodward (1819) is important because it not only protects the corporation and shareholders but requires responsibilities of them as well (a major point of Greenfield's book.) That guarantees them protection from unwarranted search and seizure by the government among other things. I know progressives would surely not want the government to willy-nilly search the files of a corporation like Planned Parenthood, for example. They also, as part of free speech, could spend money to support political positions, something progressives had fought for for unions.

Greenfield argues the Court made a mistake in the Hobby Lobby decision by not considering it a person. The Green's went wrong Greenfield believes is that the rights of the owners don't necessarily translate into the rights of the corporation as a person. The Greens has chosen to protect their personal assets by making Hobby Lobby a separate entity, person, if you will. "Corporate personhood expresses the idea that “for-profit corporations are entities that possess legal interests and a legal identity of their own—one separate and distinct from their shareholders. The corporate law brief argued that this separateness meant the Greens should not be able to attach their own religious beliefs to the corporation. The Greens chose to form a corporation in order to operate the business without running the risk of losing their personal assets."

Ironically, many of the groups now proposing a constitutionality amendment to deny corporation separateness and personhood, were it to be ratified would lose the right to talk about it.

"The argument that corporations should not have standing to assert any constitutional right is quite weak. The opposite of a constitutional right is a governmental power. If corporations have no rights, then governmental power in connection with corporations is at its maximum. That power can be abused, and corporate personhood is a necessary bulwark." The government tried to enforce censorship on the New York Times in 1971, but the court decided as a "person" it had protected speech.


"Today, Google and other media companies are fighting government demands to disgorge the contents of their servers. No one suggests that the government’s power should be unchecked because the media companies, as corporations, have no Fourth Amendment rights to be free of unreasonable searches and seizures. If corporations were not able to claim the Fifth Amendment rights to be free of government takings, their assets and resources would always be at risk of expropriation. No one would invest in corporations, undermining the reason we have them in the first place."

The Myth of Guns for Self-Defense

We were having one of our social gatherings recently and I was sitting with a bunch of male friends who got on the subject of the guns they own. (These folks were all in their eighties and nineties with imperfect eyesight I remind you.) They all indicated how much safer they felt having the guns handy. I just sat and listened making sure to never enter their houses without a blast on my air-horn.

I was reminded of two very public shootings where the target was surrounded by trained secret service and police officers, all carrying guns, and all trained to prevent any kind of attack on their principal. They all failed in spite of having vastly out-gunned the assailant. The two examples, Reagan, who had people armed to the teeth specifically trained to prevent his being shot, and Oswald, killed by Jack Ruby in front of numerous armed officers who had been warned to expect just such an action. For another example, on September 16, 2013, the Washington Navy Yard was protected by trained and armed security officers when a gunman killed 12 people. One of those killed was an armed officer. The gunman took his pistol and used it to shoot more.

The lesson is clearly that in spite of what the NRA would have you believe, if an intruder or anyone wants you dead, having a handgun handy is a waste of money and useless. It won't help. Bodyguards won't either. Better just not to piss anyone off.

On the other hand, there were 732 children, aged 0-11 killed, 3,232 teens killed, 606 murder suicides, and 2,015 unintentional shootings in 2017. Those numbers do not inspire confidence.

I deliberately left out the number of defensive use of guns as the surveys have been problematic (see #2 below) and they don't report the result of the use, i.e. did it work, what were the circumstances, etc. The first reference below indicates 2,030 uses but other studies report much higher, but all suffer from a lack of inspection as to what happened and what the result was. For example, we've all seen the story of the guy in the Florida parking lot who felt threatened by the man (black, of course) in front of him and so felt justified in shooting him. Not to mention Treyvon Martin. There are some legitimate cases like the pizza parlor guy who was attacked by the man with the bat, pulled a gun and killed his attacker. Of course if the attacker had had a gun, he'd be dead.

It would be nice to have some comprehensive research on gun violence as a public health issue, but ever since the Dickey amendment (R-AR) they have been de-funded and prohibited from doing any kind of research that might result in any kind of gun control, a broad preventive mandate, indeed. I don't know what the NRA and Dickey are afraid of, unless they know something we don't.



1. https://www.thetrace.org/rounds/gun-deaths-increase-2017/

2. https://marginalrevolution.com/marginalrevolution/2018/04/defensive-gun-use-difficult-statistics-rare-events.html

Removing Abortion as a Political Issue

I remember reading in Randall Balmer's book, Thy Kingdom Come,(https://www.goodreads.com/review/show/37675220?book_show_action=false&from_review_page=1) of a meeting of Evangelicals in 1979, six years after Roe v. Wade, where they were looking for an issue that would help rally their congregations in support of Ronald Reagan. Not being able to use divorce as an issue despite the Bible having a great deal to say about it, they settled on abortion and proceeded to successfully drive a wedge between what became liberals and conservatives. They also creatively hijacked the language of the debate, claiming the moral high-ground by declaring themselves to be pro-life as if anyone in opposition would have to be pro-death. The limp response of liberals was to call themselves pro-choice, a nebulous phrase lacking in any moral quality at all. The result has been overwhelming success on the part of anti-abortion movement and its adoption by the GOP, to the point where even in those states where abortion laws are relatively loose, a clinic where they can be performed is virtually impossible to find.

Ironically, as a recent review of a documentary of the GOP and abortion indicates, the GOP had been the party of privacy and choice during the fifties and sixties, the Democratic Party being dominated by the Catholic Church. Ronald Reagan had even signed one of the most liberal abortion laws in the country in California, as did Nelson Rockefeller in New York."In 1972, a Gallup poll found that 68 percent of Republicans believed abortion to be a private matter between a woman and her doctor. The government, they said, should not be involved."

"As the historian of religion Randall Balmer explains in the film, evangelicals became politically active in the 1970s, when they were thwarted by the courts and the Internal Revenue Service in their efforts to obtain tax-exempt status for “segregation academies” like Jerry Falwell’s Lynchburg Christian School and Bob Jones University that heeded what they believed to be a biblical mandate to keep the races separate. Around the same time, Paul Weyrich, a Republican strategist, recognized the potential political power evangelical voters would have if they were to vote as a bloc, and tried to pull them into the fold with issues he thought might appeal to their moralism, such as the proliferation of pornography, the Equal Rights Amendment, and even abortion—which, prior to Roe, they were largely sympathetic toward and considered a Catholic issue." (NYRB, Nov. 11, 2018, "How Republicans Became Anti-Choice")

Liberals remain clueless as to how to respond. May I suggest a drastic strategy. Support overturning Roe v Wade and call for a national referendum on whether it should be legal or not. It would eliminate a dominate rallying cry of the Right, remove a salient issue for many voters. Too many friends of mine, nominal Democrats, voted for the GOP and Trump in particular solely because of their stand on what they consider to be the only issue, a moral one. The immediate effect of overturning Roe v Wade as law of the land would be to return the battle to each state legislature but it would defuse it as a national campaign issue and perhaps we could return to some semblance of reasonable discussion of policy issue with less shouting (not to mention shooting.) Polls seem to indicate a majority of Americans support the right to legal abortion and a national referendum would supposedly reflect that further deflating the sails of the "values" voters. Even if no one could agree on the rules for such a referendum it would defuse the issue, or at least reduce pressure on the Democrats who could then argue, "well, we wanted to overturn Roe, too".

His Master's Lusts

Sheila has been reading the new biography of Frederick Douglass by David Blight (she says it's excellent, by the way) and I started poking around in Douglass's autobiography. I was struck by the following paragraphs, which show the incredibly perverted way that white men justified and rationalized through legal methods their impregnation of slave women. He was separated from his mother as an infant.


"Called thus suddenly away, she left me without the slightest intimation of who my father was. The whisper that my master was my father, may or may not be true; and, true or false, it is of but little consequence to my purpose whilst the fact remains, in all its glaring odiousness, that slaveholders have ordained, and by law established, that the children of slave women shall in all cases follow the condition of their mothers; and this is done too obviously to administer to their own lusts, and make a gratification of their wicked desires profitable as well as pleasurable; for by this cunning arrangement, the slaveholder, in cases not a few, sustains to his slaves the double relation of master and father.

I know of such cases; and it is worthy of remark that such slaves invariably suffer greater hardships, and have more to contend with, than others. They are, in the first place, a constant offence to their mistress. She is ever disposed to find fault with them; they can seldom do any thing to please her; she is never better pleased than when she sees them under the lash, especially when she suspects her husband of showing to his mulatto children favors which he withholds from his black slaves. The master is frequently compelled to sell this class of his slaves, out of deference to the feelings of his white wife; and, cruel as the deed may strike any one to be, for a man to sell his own children to human flesh-mongers, it is often the dictate of humanity for him to do so; for, unless he does this, he must not only whip them himself, but must stand by and see one white son tie up his brother, of but few shades darker complexion than himself, and ply the gory lash to his naked back; and if he lisp one word of disapproval, it is set down to his parental partiality, and only makes a bad matter worse, both for himself and the slave whom he would protect and defend."

Emphasis mine.

Review: To Die in Vienna by Kevin Wignall

I've been reading a lot of heavy stuff lately (reviews to follow eventually ) and some law review articles in preparation for a presentation on John Bingham and the 14th Amendment, so it's always nice to find something well-put together that doesn't insult the intelligence, but nicely engages. Kevin Wignall's To Die in Vienna is of the spy-like genre, a favorite of mine, and it fit the bill nicely.

Freddie is a surveillance expert who has been tasked with watching the activities of a Chinese national in Vienna. He has come to know Cheng's habits intimately, but one day he returns home early to find his apartment being trashed and he barely escapes with his life just managing to kill his attacker with a steam iron. His boss is clearly terrified then he is also killed and Freddie realizes it's time to hide. So he does in the place least likely to be suspected and in plain sight.

Things get complicated as they usually do, and Freddie's determined not to kill anyone, the reason for which is gradually determined. Freddie also happens to have numerous skills that he had preferred to leave unused and hidden. 

Good story that moves forward nicely. I will read more Wignall.

Ruminations on Madison v Alabama and Kavanaugh

Sheila and I were listening to the oral arguments before the Supreme Court in the case of Madison v Alabama. At basic issue is whether a person who has lost his memory of a crime due to a medical condition, in this case vascular dementia, can be executed under the Constitution’s Eighth Amendment.

During the arguments, a recurring theme was the importance of memory with the word “blackout” coming up. For example, Justice Kagan asked, “but the idea of a kind of fugue state or a blackout that's unaccompanied by anything else, does that count as the kind of mental disability that you're talking about?” The word “blackout” rang some bells. Stevenson’s response was, “We're not arguing that someone who is competent to stand trial, who nonetheless at trial maintains that they blacked out or don't remember would, therefore, be incompetent to be executed.”

During Kavanaugh’s nomination hearings, he insisted that while he “liked” beer, he never drank to excess and certainly never to the point of blacking out. He also never used the excuse of not being able to remember. I couldn’t help but wonder whether he was being really smart and avoiding the stigma of being labeled incompetent or mentally ill, a term the justices seemed to associate with the concept of blacking out. Then again memory loss or not being able to remember something is often attributed to malingering. Defendants at trial also use defenses of "I don't remember." It doesn't preclude the state from trying them, from convicting them, from sentencing them. It doesn't make them incompetent. It did seem a bit obscene to suggest that this man on death row, now blind, incontinent, and suffering from dementia could be attempting to fool them so he wouldn’t be executed.

What a shame that Kavanaugh wasn’t on the bench when this came up as he could have spoken from personal experience.

I must admit to being saddened and horrified by the entire discussion. Here the decision to take a life revolved on splitting hairs and dictionary definitions. The poor man has been on death row for more than thirty years, has all sorts of physical problems, and good old Alabama just can’t wait to execute the fellow. That strikes me as more than immoral.

From Tailspin by Steven Brill

Reading this for reading club. The first chapter makes for depressing reading. The book details how we got to this mess. Some quotes from the beginning, re the current state of the United States:

"Income inequality has snowballed. Adjusted for inflation, middle-class wages have been nearly frozen for the last four decades, and discretionary income has declined if escalating out-of-pocket health care costs and insurance premiums are counted. Yet earnings by the top one percent have nearly tripled. The recovery from the crash of 2008—which saw banks and bankers bailed out while millions lost their homes, savings, and jobs—was reserved almost exclusively for the top one percent. Their incomes in the three years following the crash went up by nearly a third, while the bottom 99 percent saw an up-tick of less than half of one percent. Only a democracy and an economy that has discarded its basic mission of holding the community together, or failed at it, would produce those results.

"The world’s richest country continues to have the highest poverty rate among the thirty-five nations in the Organization for Economic Co-operation and Development (OECD), except for Mexico. (It is tied in second to last place with Israel, Chile, and Turkey.) Nearly one in five of America’s children live in households that their government classifies as “food-insecure,” meaning they are without “access to enough food for an active, healthy life.”

"Beyond that, few of the basic services seem to work as they should. America’s airports are an embarrassment, and a modern air traffic control system is twenty-five years behind schedule. The power grid, roads, and rails are crumbling, pushing the United States far down international rankings for infrastructure quality. Despite spending more on health care and K–12 education per capita than any other developed country, health care outcomes and student achievement also rank in the middle or worse internationally. The U.S. has the highest infant mortality rate and lowest life expectancy among its peer countries, and among the thirty-five OECD countries American children rank thirtieth in math proficiency and nineteenth in science."

"American politicians talk about “American exceptionalism” so habitually that it should have its own key on their speechwriters’ laptops. Is this the exceptionalism they have in mind? The operative word to describe the performance of our lawmakers in Washington, D.C., responsible for guiding what is supposed to be the world’s greatest democracy, is pathetic. Congress has not passed a comprehensive budget since 1994. Like slacker schoolchildren unable to produce a book report on time, the country’s elected leaders have fallen back instead on an endless string of last-minute deadline extensions and piecemeal appropriations. Legislation to deal with big, long-term challenges, like climate change, the mounting national debt, or job displacement, is a pipe dream. It is as if the great breakthroughs of the past, marked by bipartisan signing ceremonies in the White House—the establishment of the Federal Trade Commission, Social Security, interstate highways, the Food and Drug Administration, Medicare, civil rights legislation, the EPA—are part of some other country’s history. There are more than twenty registered lobbyists for every member of Congress. Most are deployed to block anything that would tax, regulate, or otherwise threaten a deep-pocketed client. Money has come to dominate everything so completely that those we send to Washington to represent us have been reduced to begging on the phone for campaign cash four or five hours a day and spending their evenings taking checks at fund-raisers organized by those swarming lobbyists."

"The result is a new, divided America. On one side are the protected few—the winners—who don’t need government for much and even have a stake in sabotaging the government’s responsibility to all of its citizens. For them, the new, broken America works fine, at least in the short term. On the other side are the unprotected many, who rely on government, as they always have, to protect and preserve their way of life and maybe even improve it. That divide is the essence of America’s tailspin. The protected overmatched, overran, and paralyzed the government."



Steven Brill's resume: Steven Brill (born August 22, 1950) is an American lawyer and journalist-entrepreneur who founded monthly magazine The American Lawyer and the cable channel Court TV, and is the author of the best selling, Tailspin: The People and Forces Behind America’s Fifty-Year Fall – and Those Fighting to Reverse It. (From Wikipaedia)

Review: Never Mind by Edward St. Aubyn

Reading this book is sort of like watching a train wreck in slow motion. I didn't like the people (nor did they like each other.) Judging from other reviews, however, I am probably not giving the series (of which this is the first) a fair shake as the character of Patrick, here a child (who gets raped by his father, a warning for those of you a bit squeamish) matures in a variety of directions in later books. St. Aubyn has said the books are virtually autobiographical, a sad thing indeed, although from reviews I gather he overcomes conditions I would consider disastrous.

I bought this book based on several negative reviews in which the readers all excoriated the author for creating such a despicable character. Having loved Highsmith's Ripley series -- and how could anyone be more despicable than Ripley -- I couldn't wait.

This is a series of five novels, the most recent just published, that follow the lives of upper crust British society. And crust they are, but not in the hot-bread-lip-smacking-dripping-with-butter-crust we all love, rather the crust on a pile of manure after it's been baking in the sun for a while.

David, a very handsome man with a checkered past, married Eleanor for her money. He dominates and treats her miserably as he becomes part of the landed gentry. "The expression that men feel entitled to wear when they stare out of a cold English drawing room onto their own land had grown stubborn over five centuries and perfected itself in David’s face. It was never quite clear to Eleanor why the English thought it was so distinguished to have done nothing for a long time in the same place, but David left her in no doubt that they did. He was also descended from Charles II through a prostitute. ‘I’d keep quiet about that, if I were you,’ she had been told."

But most of the book is about David's childhood


I MUST quote this line from Paul's excellent review that captures the spirit much better than I ever could: " it was like eating a whole box of chocolate coated scorpions, crunch crunch, their little exoskeletons shattering on my palate and the poison flooding all my internal organs and me saying mmm-mmm, more please. " [http://www.goodreads.com/review/show/425509669]

The writing is exceptional.