What the Constitution does not say Tuesday, Jun 29 2010 

I’ve been reading on the Internet a bit about the recent Supreme Court decision in Christian Legal Society v. Martinez. (Opinion of the Court can be found here, and a New York Times article about it can be found here.)

At issue was whether the University of California’s Hastings College of the Law had to formally recognize the Christian Legal Society (CLS) as a student group on campus. The law school argued that it did not, because the student group did not conform to its nondiscrimination policy. The Christian Legal Society, which has 165 student chapters across the nation, disallows voting rights or officer positions to those who engage in “unrepentant participation in or advocacy of a sexually immoral lifestyle” (that is, homosexuals). The law school did not want to recognize a group that did not allow full membership to anyone who wanted it.

As evidenced by the opinion of the Court that I linked to above, the Court voted 5-4 in favor of the university.

As expected, this made conservatives, right-wingers, and even some proclaimed “libertarians” pretty unhappy. Students for Liberty declares that the ruling “undermines the freedom of association on campus.” The Foundation for Individual Rights in Education (FIRE) also declared that the ruling “undermines freedom.” These people and groups claim it is the CLS’s First Amendment right to bar homosexuals from membership from their organization. Ergo, the recent Court ruling is antithetical to liberty, free speech rights, and the right to “freedom of association.” Even Filip Spagnoli, a firm defender of human rights, states, “the discrimination that is imposed by the Christian group is real but not consequential enough to warrant a limitation of its freedom of association or religion.”

The question, as it always is, is, “Is it true?” (Bravo to me for using three is‘s a in a row. Apologies for poor prose!) Well, it certainly is true that the the CLS has the First Amendment right to bar whomever they please from membership, including homosexuals. Freedom of association certainly allows that, as Dr. Spagnoli keenly points out. However, as Dr. Spagnoli also correctly points out, “Withdrawal of recognition means that the group loses some subsidies and access to university resources, not that it has to cease to exist.”

While the student group certainly has the First Amendment right to exist, they have no right to public subsidy. The First Amendment gives people and groups the right to free speech and association, but not the right to have your speech subsidized. That is found no where in the U.S. Constitution. The Court affirms this view point. While affirming the CLS’s right to exist, the Court ruled that the U.S. Constitution offers the group no right to have their speech or views subsidized or supported by others.

Justice Stevens said that, while the U.S. Constitution “may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them. . . . [O]ther groups may exclude or mistreat Jews, blacks and women — or those who do not share their contempt for Jews, blacks and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.”

What I find to be hypocritical in the extreme is that those who claim to be defending “freedom of association” deny the university’s right to freedom of association. If the law school does not wish to associate with or subsidize patently discriminatory groups, that ought to be their right. So, in effect, I believe the Court’s ruling was a win for freedom of association rights.

Update: Dr. Spagnoli admits the following: “It seems I glossed over a crucial distinction: getting yourself banned and losing subsidies. The latter isn’t a rights violations and that is what happened. The former would have been but that’s not what happened.” I agree with him here.

A comment on the recent Supreme Court decision Saturday, Jan 23 2010 

Recently, the Supreme Court ruled in Citizens United v. Federal Election Commission that corporations (and labor unions) can spend unlimited amounts of their money on elections. Essentially, the Supreme Court ruled that corporations can run campaigns. Many have lauded the decision as a great defense of First Amendment rights.

Is it? “Freedom is awaking from its coma today,” declares conservative Rush Limbaugh. Dr. Spagnoli, writing on his blog, states, “there’s no reason to deny corporations [free speech].” This is because “free speech [is a human right],” he says. I agree with Dr. Spagnoli, free speech is a human right. But are corporations humans?

As it happens, corporations are not people. They are social constructs, entities created to carry out specific functions. However, as I discussed in a earlier blog post, Are corporations individuals?, corporations slowly became considered “persons” through a series of judicial rulings. There is no law that says corporations are humans. It’s not anywhere in the Constitution. The Fourteenth Amendment was passed after the Civil War to give rights to people, specifically the newly freed slaves. It declared, “No State shall … deprive any person of life, liberty, or property, without due process of law.” It affirmed the rights of people. It was there to protect blacks from the evils they had endured under the brutal regime of slavery that had oppressed them for centuries.

Well, corporate lawyers were very savvy, and they began to say, “look, corporations are persons.” Corporations deserve the protection that was meant for freed slaves. In fact, when you look at the history of it, it’s very perverse. According to work done by Doug Hammerstrom, of the 150 cases involving the Fourteenth Amendment heard by the Supreme Court up to Plessy v. Ferguson, only 15 involved blacks. The other 135 were brought by corporations. This is the exact opposite of what we would expect to happen. However, through a series of activist decisions by judges, which has no basis in law, corporations gained personhood. Richard Grossman proclaims, “600,000 people were killed to get rights for people, and then with strokes of the pen over the next 30 years, judges applied those rights to capital and property, while stripping them from people.”

So now they can say corporations deserve the rights of flesh-and-blood persons, like the right to free speech; the ability to sue others; the right to “life, liberty, or property”; the right to own other businesses; the right to run campaigns; and so on. But there’s nothing inherent to a corporation that says its a person and deserves the rights of flesh-and-blood people. That’s only come about through very perverse judicial activism (e.g. Santa Clara County v. Southern Pacific Railroad). Moreover, there’s nothing in economic theory that says corporations ought to be treated as persons. That corporations should run campaigns has got nothing to do with capitalism. There’s nothing about efficiency that says corporations should be allowed to do this. In a free and competitive market, it wouldn’t happen.

Anyone who argues that corporations should be treated as persons and have the same rights would also have to accept that corporations should also then be allowed to run for office, hold office, to vote in elections, and so on. But no one agrees with that and for obvious reasons. Moreover, Dr. Spagnoli does not say that only corporations should have the rights of persons. He also says, “corporations, trade unions etc.” should not be denied the right to free speech. Well, what does “etc.” constitute? If a corporation is a person, why not a sports team? Can a townhome association be considered a person under the Fourteenth Amendment? Why not?

What happened before corporations were granted the rights of persons? They were chartered by the state to carry out some function that was meant to serve the public good. They had a specific charter, their shareholders were accountable, they had limited rights, they were regulated, and so on. That they should be running campaigns was completely unfathomable, particularly to the Founding Fathers, who were vary wary of corporate power. Within this framework, corporations had moral obligations to the communities they served. With judges granting corporations personhood, however, the moral obligations we ascribe to flesh-and-blood persons was not ascribed to corporations. The moral obligations and social responsibility that corporations have, according to people like Milton Friedman and Ayn Rand, is to serve their own interests. The only obligation corporations are to have is to maximize profits. These are not the same type of moral obligations we think flesh-and-blood people have. Most decent people, ignoring extreme ethical egoists, believe we ought to consider what happens to other people, that we have an obligation not to harm others, that we should not rape the environment, that we should not ignore grave injustices, that we should treat flesh-and-blood people as ends rather than means, and so on. Even those who support corporate personhood do not ascribe these moral obligations to corporations. These are very special types of “persons” indeed.

Should people have the right to free speech in a democracy? Yes. Are corporations people? No.

Pornography vis-à-vis feminism and rights Wednesday, Sep 30 2009 

Pornography can be a touchy subject to deal with because many people are uncomfortable discussing sex, let alone its commercialization. I concede this fact, but will try to anyway.

I’m generalizing a bit, but I think it’s fair to say there are two broad categories of people when it comes to pornography: those who believe it should be illegal and those who believe it should not be illegal. I belong in the latter category. I’m not alone by any means, and I believe I’m in good company. But I want to make myself very clear that supporting the legality of something does not necessarily mean condoning it. For example, when I say I support the decriminalization of marijuana, I do not mean to imply that I condone the use of marijuana (recreationally) or that I would use it myself. When I say abortion is an absolute and inalienable right of women, I do not mean to imply I support women getting abortions (I prefer they don’t, but that doesn’t mean it should be outlawed). So when I support the legality of pornography, I do not mean to say porn is necessarily a good thing. I’m sure there’s a good deal of people who support the legality of pornography but do not necessarily agree with the act (and definitely a great deal that do support the act itself).

Tonight (Wednesday), however, the SCSU Women’s Center along with the Residential Life Social Justice and Diversity Committee will be hosting an anti-pornography special event at 6:00 P.M. in Ritsche Auditorium (I’m not sure that I will be able to make it, because I’m also going to a special event on Palestine). The event is titled “The Price of Pleasure” and it will show the documentary that goes by the same name followed by a presentation by Robert Jensen who is an anti-pornography activist and a professor of journalism at the University of Texas in Austin (he also appears in the documentary).

In one of the few times I’ve been impressed with the quality of a student-written opinion appearing in the University Chronicle, Neil Panchmatia writes a scathing criticism of the Women’s Center position on pornography that it takes in showing the documentary and hosting the professor, which he says is contrary to “the consensus of most feminist scholars.” Panchmatia, a graduate student in social responsibility, writes, “In feminism there is lively debate on whether porn is harmful, but through Professor Jensen the Women’s Center is promoting only Andrea Dworkin’s extreme perspective, which not only claims that porn itself embodies the violation of womens rights, but equates the term ‘porn’ with ‘gender violence,’ and even that porn ’causes’ rape and fuels violence against women.”

Indeed, arguments about pornography are nuanced, even among feminists, but there’s little doubt that the position the Women’s Center endorses is out on the extreme. A thorough survey of the American public by Yankelovich Clancy Shulman in 1986 showed 78% of people did not believe pornography should be illegal (finding reliable polling on this subject somewhat difficult). I do not deny that pornography can cause problems. I don’t think anyone doubts there can be detrimental effects in the participation, production, or consumption of pornography. There is, in fact, robust scholarly literature that deals with this important subject. But to conclude from that that pornography should be illegal is misguided.

In their 1969 ruling in Stanley v. Georgia, the Supreme Court of the United States declared every American has the “constitutional right to keep and enjoy pornographic material in his home.” Though the court said they have the “broad power” to regulate “obscenity,” it concluded every American may “satisfy his intellectual and emotional needs in the privacy of his own home.” That is, the court affirms, Americans have the right to free speech and privacy. (In a true perversion of the Constitution, the court later ruled in 1973 in Miller v. California that it had to right to determine what “obscenity” is and therefore declare it not a form of protected speech or expression under the First Amendment.)

So if we have the right to view pornographic material, one can infer from this that there also exists the right to participate in and produce pornography. That is, consenting adults have the right to perform sexual acts with each other and they also have the right to disseminate depictions of these acts with other consenting adults. They have these rights, but whether you want to argue that engaging in these activities is right or wrong is an entirely different thing. You may wish to educate people, inform people of risks, discuss its immorality and so forth, but we cannot deny them the right to engage in the activity. I can certainly agree, for example, that pornography can have the effect of distorting views on sex and sexuality and objectify and dehumanize women, but it doesn’t follow from that that pornography ought to be outlawed.

But proponents of outlawing pornography point to the alleged negative social effects it creates. Particularly, they argue pornography incites violence against women including through rape. “Pornography is the theory, and rape is the practice,” goes the saying. Is it true? The Classically Liberal blog, in their post on the benefits of pornography, cites a study by Todd Kendall, a professor at Clemson University. Kendall finds, “a 10 percentage point increase in Internet access [to pornography] is associated with a decline in reported rape victimization of around 7.3%,” among other benefits. There is a preponderance of evidence that supports this claim. (In fact, in 1969, Lyndon B. Johnson and Congress, in response to the SCOTUS ruling in Stanley v. Georgia, set up the President’s Commission on Obscenity and Pornography. What the commission found was that exposure to sexual materials does not create adverse social effects, does not corrupt the individual, that restrictions on the “sale, exhibition, or distribution of sexual materials to consenting adults should be repealed,” and that adults believed they had the right to view pornography on their own accord. Congress rejected these findings.)

To conclude, the right to own, view, participate in, produce, and distribute pornography has been affirmed for consenting adults. We have strong and overwhelming evidence that pornography does not create adverse social effects and, in fact, may reduce violent crimes against women such as rape. Yet, the Women’s Center will dismiss these rights and ignore the research to instead advocate the idea that pornography is fundamentally and necessarily wrong and detrimental and ought to be illegal. Needless to say, I believe they are taking the extreme position and it ought to be firmly rejected.

Sotomayor fuss Saturday, Jun 6 2009 

I find all the fuss about Sonia Sotomayor, President Obama’s pick as the replacement for the outgoing Justice David Souter, very interesting. The fuss is over how objective she could possibly be because she is a Hispanic woman who grew up in the Bronx (clearly a first for the high court). Republican Senator Jeff Session proclaims, “Although we sometimes take our heritage of neutral and independent judiciary for granted, the truth is, this great tradition is under attack.”

How does Sotomayor’s nomination for the Supreme Court constitute an attack on its integrity and tradition? Well, Sotomayor is supposed to be the exception, and the exception proves the rule. What’s the rule? The rule is that Supreme Court justices, who have all been white men with four exceptions, are neutral and completely independent thinkers. Sotomayor, because she is not a white man, is an attack on this rule (just as Justice Ginsburg was before her).


(A political cartoon appearing in an Oklahoman newspaper on June 2.)

Had President Obama nominated a white man, there would be no question about what kind of impartiality he would bring to the court because of skin color or sex. There was certainly no question when John Roberts was nominated by President Bush in 2005. So the latent assumption is that white men, perhaps by virtue, bring no subjectivity because they are white or because they are men. For the people who make this assumption, including the media, it never even crosses their minds that white men also have lived experiences that influence the way they think, what kind of assumptions they make, their perspectives, and ultimately how they judge. That Sotomayor’s lived experiences are not at all similar to the white man’s is frightening to them. They see it as an “attack,” an affront on justice.

What I find truly frightening is how broadly these beliefs are accepted.

Are corporations individuals? Thursday, Mar 26 2009 

This is an interesting question I had not thought about until I watched the documentary The Corporation, one of the most successful Canadian documentaries ever. (You can watch the whole documentary here on YouTube, provided by the makers of the film. In particular, see videos 1 and 2.) It was shown in my business ethics course.

The Fourteenth Amendment, ratified in 1868, was a Reconstruction Amendment aimed at advancing the rights of blacks. One of the most important statements it makes is, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” So, fundamentally, at issue were civil rights and the citizenship of slaves and black people.

Naturally, we would expect that cases being brought to the courts on the basis of the Fourteenth Amendment would be about the rights of blacks and their rights as citizens of this country, since that’s the purpose of the Amendment and why it was ratified. But this isn’t the case. According to Doug Hammerstrom, “Of the 150 cases involving the Fourteenth Amendment heard by the Supreme Court up to the Plessy v. Ferguson case in 1896 that established the legal standing of ‘separate but equal,’ 15 involved blacks and 135 involved business entities.” Backwardly, it was not the blacks who were winning their cases for a more a just and fair society wherein they could secure and protect their rights (they were, contrastingly, being systematically oppressed) as citizens, but the corporations who garnered individuality as persons under the Fourteenth Amendment. (See, for example, Supreme Court case of Santa Clara County v. Southern Pacific Railroad.) There is robust scholarship on the issue of corporate personhood, which I have only begun to delve into.

Through a series of Supreme Court decisions, corporations became individuals, like you and I, who can carry many of the same functions, such as trade, buy, sell, sue, be sued, lobby, etc. This is a particularly important fact when it comes to liability. So, while corporations could now enjoy many of the same rights under the Constitution as any other person, they were not bound similar restraints, thanks to the many deregulation movements this led to. The ubiquitousness of the corporation in today’s society can be traced back to these decisions. We live in the corporate era, which is distinctly different from how business was previously regarded. With the corporation as a dominant institution in modern society, there are major moral implications to be considered. I would suggest you view the documentary I mentioned above for a discussion on these issues.

However, if we going to treat corporations as individuals, as people essentially, then we should also hold them to the same social and moral standards as we do flesh-and-blood people. Or, alternatively, we can change our perception of corporations. Perhaps, as others have suggested, they should not be thought of as persons under the Fourteenth Amendment, but perhaps as tools to promote the social good and needs, as they once were, being wholly accountable to the people. Unfortunately, the documentary does not elaborate on what the functions and properties they think the modern corporation should possess. I wish they did.

Update: Please see a relevant post regarding a Supreme Court decision on corporate personhood.