Welcome to the relaunch of The World’s Got Problems. We have been dark for a few weeks but of course the darkness of the world’s problems continues unabated. So in this inaugural post of the relaunch, I will take a step back and look at certain recent developments as they relate to what I find to be an underlying problem – the dominant political culture’s selective and variable application of the 14th Amendment and the concept of “personhood”.
Three Fifths of a Person
The United States, at its best, is a political order based on Enlightenment principles of human rights and liberty. But compromises were made at the very beginning, most notoriously by writing slavery into the Constitution. In Article 1, Section 2, Paragraph 3 a distinction is made between “free Persons” and “other Persons”:
“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”
The “other persons” were of course the population of black slaves, not so distant ancestors of the current President’s wife and children, who counted as 3/5ths of a “free Person” for the sake of determining appropriate levels of taxation and representation in the House.
After the Civil War, this “3/5th Compromise” was rendered moot by the 13th Amendment’s abolition of chattel slavery, while the 14th Amendment superseded Acricle 1, Section 2, Paragraph 3 of the Constitution and guaranteed “due process” and “equal protection” to every “person”.
What is good enough for a freed slave is good enough for a corporation, apparently – within only a couple of decades, “equal protection” began to be applied to non-human “legal persons”. In 1886, before hearing arguments for Santa Clara County vs. Southern Pacific Railroad, Chief Justice Morrison Waite asserted from the bench:
“The court does not wish to hear argument on the question whether the provision in the 14th Amendment…applies to these corporations. We are all of the opinion that it does.”
Although this “obiter dictum” was not officially part of the Court’s decision, court reporter (and former railway president) Bancroft Davis included it in his summary – and it has served as faux precedent ever since. From Mother Jones:
After Santa Clara, federal judges began granting more and more rights to nonliving “persons.” In 1922, the Supreme Court ruled that the Pennsylvania Coal Co. was entitled to “just compensation” under the Fifth Amendment because a state law, designed to keep houses from collapsing as mining companies tunneled under them, limited how much coal it could extract. In 1967 and 1978, businesses prevailed in Supreme Court cases citing the search-and-seizure provisions of the Fourth Amendment as protection against fire and workplace safety inspections.
Corporate lawyers have also taken a shine to the First Amendment. In 1978, the Supreme Court agreed with corporations claiming that the state could not limit their political spending in an antitax campaign. Almost two decades later, a federal appellate court struck down a Vermont law requiring that milk from cows treated with bovine growth hormone be so labeled. Dairy producers had a First Amendment right “not to speak,” the court said. In California, Nike invoked the First Amendment to fight a lawsuit arguing that the company’s public relations materials misrepresented sweatshop labor conditions.
Most recently, the Retail Industry Leaders Association has relied on the 14th Amendment’s equal protection clause to fight Maryland’s Wal-Mart law, designed to force the company to expand its spending on employee health care. The retail group has also sued Suffolk County, New York, which last fall passed a similar ordinance aimed at nonunionized supermarkets.
Which brings us to last month when the Supreme Court reasserted the application of legal “personhood” to corporations in their ruling on Citizens United v. Federal Elections Commission, which overturns previous campaign finance law and grants corporations (and unions) the right to spend unlimited amounts of money to influence federal elections.
For Chris Hedges, this marks the final nail in the coffin of democracy. We are now living in a state of “Inverted Totalitarianism“. You can find some some more analysis at the SCOTUSblog. (BTW, the “corporation” icon in the image above is taken from the excellent documentary, The Corporation.)
“Detainees” are not persons.
But while the Supreme Court assumes that corporations are included withing the set of “persons”, actual human beings are still being excluded from the category.
The Obama Administration, for example, decided last month to follow the Bush policy of imprisoning detainees without charges, denying them what the 14th Amendment guarantees to all “persons” – not just citizens. Glenn Greenwald has analysis of this decision here, where he criticizes the hypocrisy of democratic leaders and liberal pundits who were opposed to these measures under Bush – but defend them now that their guy is in charge. Also, he points out the sad irony of the timing of this decision:
“…today is the one-year anniversary of President Obama’s Executive Order to close Guantanamo within one year — an anniversary the administration decided to celebrate not by fulfilling its terms, but instead by announcing that the central feature of Guanatanamo — indefinite detention with no charges — will continue indefinitely.”
Keep in mind that these “detainees” are merely terrorism suspects – but many have endured torture and years of imprisonment. Although torture and imprisonment without trial are clearly unconstitutional, those “people” who ordered and legally justified torture brag about their accomplishments, teach at universities and work on their books – without any fear of reprisal.
The US versus THEM mentality that rose from the ashes of 9-11 is still operational under Obama, though it has become more insidious because it appears in intelligent, bipartisan blackface – and therefore now a largely unquestioned feature of “liberal” as well as “conservative” world-views.
Also, it is the perfect mirror of Al-Qaeda’s theological justification for slaughter of civilians – an “American Takfiris”
Homosexuals are people – more or less, sooner or later.
After the 14th Amendment was adopted, there was a wave of marriages between former slaves. But many southern states maintained miscegenation laws which prohibited marriages between the races. It wasn’t until Loving v. Virginia in 1967 that these laws were declared unconstitutional – again by appealing to the equal protection clause of the 14th Amendment. According to that decision, marriage is one of the “basic civil rights of man”.
And yet gay people continue to be denied this right to in all but five of the United States, and the Federal Government does not recognize gay marriage due to the so-called Defense of Marriage Act signed into law by President Clinton.
The two lawyers on the opposite sides of Bush v. Gore are teaming up to challenge California’s Proposition 8 in Federal Court. You can listen to these strange bedfellows argue the case for marriage equality in an interview with Bill Moyers here. (Moyers, always the seeker of truth, plays devils advocate.)
Also, Gay people still can’t serve openly in the military, also a lingering Clinton policy. Things look like they are turning around here, however, now that the top defense officials are seeking the end to “Don’t Ask, Don’t Tell”.