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Constitution Bill of Rights

note color below

see founding fathers, also a God Term

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https://www.rightwingwatch.org/post/alex-mcfarland-:{satan-hates-the-constitution/:(style="background-color:#ffff66;"):}:

reform

A More Democratic Constitution for the USA - YouTube

,mta just posted this vid of const discussion

196 views Sep 12, 2025

This panel includes John Mulkins, Luke Pickrell, and Greg Coleridge as they discuss democratizing the U.S. constitution, with background on our history as a democracy, the undemocratic features of the constitution, what can be done to democratize our constitution, and what can participants do to further the conversation. Presented by Move To Amend

previous https://en.wikipedia.org/wiki/Arend_Lijphart

Van Cleve received his JD from Harvard Law, teaches at Seattle University School of Law, and is a visiting scholar at Georgetown University Law Center. His book about why and how to make a new American Constitution (which I’ve read and highly recommend) and a recent article of his appear below.

If you can, please tick the box on WhentoMeet to let us know if you’ll attend. It would be super helpful for the organizers.

https://www.when2meet.com/?32511056-kJotr

Thanks, JF

https://www.thinkbackpod.com/p/when-america-had-no-government-with

mta email 2 25

property in const POCLAD

The U. S. Constitution: Pull the Curtain

https://www.npr.org/podcasts/510333/throughline

SEPTEMBER 23, 2021

The Supreme Court (2020)

When, why, and how did the Supreme Court get the final say in the law of the land? The question of the Court's role, and whether its decisions should reign above all the other branches of government, has been hotly debated for centuries. And that's resulted in a Supreme Court more powerful than anything the Founding Fathers could have imagined possible.

covers switch in time that saved 9; after marbury v ? scotus carved out indiv rights which later got leveraged by Warren Ct? to judicial supremacy; CRM but last gasp was Roe; now right wants to use tool to undo warren progress.

https://www.npr.org/player/embed/1039822099/1046005946

SEPTEMBER 30, 2021

The Shadows of the Constitution (2020)

The Constitution is like America's secular bible, our sacred founding document. In her play, What the Constitution Means to Me, Heidi Schreck goes through a process of discovering what the document is really about – who wrote it, who it was for, who it protected and who it didn't. Through Heidi's personal story, we learn how the Constitution and how it has been interpreted have affected not just her family but generations of Americans.

https://www.nationalaffairs.com/publications/detail/are-corporations-people

no lnx

number 49 • fall 2021

Are Corporations People?

Carson Holloway

Fall 2015

During the Obama years, the American left has regularly and forcefully claimed that "corporations are not people." Progressives ranging from ordinary protestors all the way up to President Obama have insisted that, because corporations are not living, breathing human beings, corporate personhood — the idea that corporations have certain legal and constitutional rights — is a fiction. As they would have it, corporate personhood was foisted upon the country by the radical conservatives of the Roberts Court and Republican officeholders with only one thing in mind: helping big business.

But contrary to what we may hear from Elizabeth Warren and ThinkProgress, corporations are, as a matter of fact, people in the eyes of the law. They have been since the beginning of the American republic, making corporate personhood deeply rooted in our legal and constitutional tradition.

When conservatives point out, as Mitt Romney notably did in his presidential campaign, that corporations are and should be considered people for certain purposes, they're pointing out what the left seems to have forgotten. They're pointing out that, though corporations may not be natural persons — that is, discrete, individual human beings whose rights somehow originate in nature — corporations nevertheless are and should be entitled to certain legal and constitutional rights.

This is not to say that corporate rights operate in the same way as do the rights of natural persons. In many cases the law justifiably treats the rights of natural persons and artificial persons differently. It is to say, however, that respect for the rights of corporations, no less than respect for the rights of individuals, is advantageous for our social order and has been essential to America's development as a prosperous, free, and good society. Accordingly, America's perpetuation as such a society requires that we understand and defend corporate personhood and corporate rights against this criticism from the left.

the long tradition of corporate rights

The idea that corporations have legal rights, and therefore a kind of personhood, is not an invention of contemporary conservatives. Its roots stretch all the way back through the history of American law and deep into the English common-law tradition. That tradition was captured most comprehensively — and communicated to the American founders most forcefully — by William Blackstone's Commentaries on the Laws of England. The very table of contents of that work bears witness to the legal tradition of granting rights to corporate persons. Chapter 18, "Of Corporations," is placed in "Book the First: The Rights of Persons."

Corporations as legal forms, Blackstone explained, are "artificial persons," created by law "for the advantage of the public."The rights accorded to the corporate form, he thus suggested, were granted in order to encourage cooperation among individuals with a view to socially useful ends. Without the corporate form, an association of individuals could not make binding rules to govern its members or internal structure. Without certain rights, it could not hold property indefinitely as an association — the death of the association's members would mean the death of the association. Without granting corporations certain rights, individuals could not securely create an association that would have a life, an identity, and a mission that could continue from one generation to the next.

Blackstone's account importantly teaches us that legal recognition of corporations is not limited to the for-profit kind. The corporate form was developed, he noted, particularly for "the advancement of religion, of learning, and of commerce." Just as in Blackstone's day, when corporations would have included not only theBritish East India Companybut also Oxford and Cambridge, today's concept of the corporation embraces not only for-profit enterprises like Apple and General Electric but also non-profit institutions like the Metropolitan Museum of Art and the New York Philharmonic. Indeed, the first corporation chartered in America was not a business but an institution of higher learning — what is now Harvard University.

There is, moreover, nothing outlandish in Blackstone's view that such institutions should have rights, or that the discussion of those rights belongs in the context of a larger account of the "rights of persons." A corporation is simply a legally recognized group of people cooperating with a view to some common end. Indeed, the very purpose of that legal recognition and the rights that accompany it is to provide a framework for a group of citizens to freely associate with one another in a stable, productive, and harmonious way.

The wisdom of this traditional English legal institution found its way to America through Blackstone's Commentaries, which was assiduously studied by lawyers of the founding generation and by many of the founders themselves. Understandably, the founders chose to preserve England's legal tradition in substantial form; for all the new things they created, the founders could not invent, by themselves, an entirely new system of legal principles.

It is therefore not surprising to find that Blackstone's understanding of corporations as legal persons were echoed by the great lawyers and jurists of the founding generation. In Alexander Hamilton's Opinion as to the Constitutionality of the Bank of the United States, for instance, we find the nation's first secretary of the treasury observing that to "erect a corporation, is to substitute a legal or artificial to a natural person." In other words, when government recognizes a corporation, it effectively creates a "legal or artificial person."

In his Lectures on Law, James Wilson offered an even more complete restatement of Blackstone's account. Within states, Wilson noted, "smaller societies may be formed by a part of its members." These smaller societies, he continued, are "deemed to be moral persons" whose "actions are cognizable by the superior power of the state, and are regulated by its laws." Ordinarily, at law, such societies are called "corporations," he added. A legal corporation, then, is "described to be a person in a political capacity created by the law." Wilson also followed Blackstone in acknowledging the kinds of purposes for which the corporate form had originally been developed. These "artificial persons," he observed, "have been formed to promote and to perpetuate the interests of commerce, of learning, and of religion."

Because of this long tradition of legal understanding, it is not unusual for the word "person," when found in legal texts, to apply to corporations. In this common parlance, it simply means that corporations have certain legal rights and responsibilities. Congress acknowledged this principle explicitly in the so-called Dictionary Act of 1871, which laid down rules for construing federal laws. Contained in Section 1 of Title I of the United States Code, this provision notes that, "unless the context indicates otherwise," the "words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals."

The Constitution, moreover, is a legal text, written and ratified by men steeped in this legal tradition according to which corporations are artificial persons capable of holding certain rights under the law. Accordingly, the view that some constitutional rights attach to corporations as well as individuals is by no means a conservative manipulation of law, as the opponents of corporate personhood suggest.

To be sure, a given reference to "persons" and their rights in the Constitution may or may not be intended to refer to corporations. Frequently, as the language of the Dictionary Act indicates regarding the interpretation of statutes, it depends on the context. For example, the framers surely did not intend to refer to corporations when they provided that representation in the House of Representatives shall be determined with reference to "the whole Number of free Persons" in each state. The Census Bureau, then, quite properly does not count corporations when ascertaining each state's population. Similarly, when the Constitution holds that "no Person shall be a Representative who shall not have attained to the Age of twenty five Years," it is certainly not suggesting that a corporation could be elected to Congress.

And yet, one cannot easily dismiss the idea that some constitutional provisions do properly apply to corporations as well as individuals. But this is exactly what the left is now attempting with its flat, simple claim that "corporations are not people."

constitutional rights

Progressives are, as a matter of fact, wrong on the question of whether corporations are people under American law. But the evidence for this is not limited to the English legal tradition and the legal educations of the framers and their successors. If indeed corporations were not people, as progressives insist, strange and dangerous consequences would quickly follow.

For instance, the Fifth Amendment to the Constitution provides that "no person shall be...deprived of...property without due process of law; nor shall private property be taken for public use, without just compensation." If progressives are committed to their initial claim, they would have to say that the Fifth Amendment's protections don't and never did apply to corporations. This would mean that a corporation's property could be taken arbitrarily, with no compensation, for any reason and at any time. Surely the American founders, who were ardent advocates of the right to property, did not intend this passage to protect the property rights only of individuals and not of corporations.

If the founders did not believe government is required to guarantee the property rights of corporations, then they conceded that natural persons could make their property subject to arbitrary and uncompensated seizure by the government by placing it in a corporation. But as Hamilton observed in his Opinion as to the Constitutionality of the Bank of the United States, the very point of allowing incorporation is, in the first place, to permit "one or more natural persons" to "hold property" together as a single, legal person.

Setting aside the framers' intentions, committing ourselves to denying corporate personhood would mean stripping corporations of their property rights and making their property subject to arbitrary seizure without compensation. Private companies and businesses, which are nothing more than corporations, would have little choice but to close down. Non-profits, including traditionally left-of-center ones like the Sierra Club and the NAACP, would also be subject to property expropriation by the government....

https://founders.archives.gov/documents/Hamilton/01-08-02-0060-0002

...

Let it now be seen what are the objections to the power of erecting corporations generally.

The sum of them as respects the Secretary of State seems to be that they contain certain capacities properties or attributes; which are against the laws of mortmain against the laws of Alienage , Start deletion,which change the course, End,, Start insertion,against the law, End, of descents, , Start deletion,which are, End, against the laws of forfieture and escheat against the law of distribution, and as respects the particular institution contemplated against the laws ofMonopoly: And it is added to the rest that a power is given , Start deletion,conferred, End, to make laws paramount , Start deletion,of, End, to the laws of the States. Nothing but a necessity invincible by other, Start deletion,s, End, , Start insertion,means,, End, can justify it is said such a prostration of laws which constitute the pillars of our whole system of jurisprudence and are the foundation laws of the State governments.

Let it , Start deletion,first, End, be seen, how far these observations are correct, and , Start deletion,then, End, what force they have.

, Start deletion,The law & bill is said to be again, End,

The power of erecting Corporations is nothing more than that of giving individuality to a number of persons. , Start deletion,The common, End, When once this individuality is created the Common law of every state annexes to it those incidents which produce the effects above-mentioned , Start deletion,as, End, , Start deletion,they, End, as far as they , Start deletion,reality, End, really exist. It establishes that , Start deletion,foreigners may hold laws, End,, Start insertion,Aliens, End,in the artificial capacity thereby created may hold lands, Start insertion,notwithstanding the laws of Alienage, End, — that the lands shall be , Start deletion,transacte, End, transmitted to the successors of the first , Start deletion,holders in their, End,, Start insertion,corporators, End, in the same capacity not to the heirs of the individuals—notwithstanding the laws of descents—that the corporate property in case of the dissolution of the corporation shall revert to the donors, not to the sovereign, , Start deletion,notw, End, as in the case of a failure of heirs of private persons—notwithstanding the law of escheat & that it shall not be forfieted for the crimes of the individual members; notwithstanding the laws of , Start deletion,foreigners, End, , Start insertion,forfietures., End,. All these circumstances too are mere consequences of the creation of an artificial person. The distinction between citizen and alien can only apply between , Start deletion,natural, End,, Start insertion,real, End, persons. Such an artificial person may have successors but can have no heirs—therefore the laws of descent cannot reach it, and, for the same reason, it is equally out of the reach of the law of escheat which relates wholly to a failure of heirs. An artificial , Start deletion,person, End,, Start insertion,person, End, cannot commit a crime—therefore its property cannot be liable to forfieture.

This shews that it is , Start insertion,inaccurate, End, , Start deletion,incorrect, End, to say, that , Start deletion,a, End, the erection of a corporation is against those different heads of the state laws. It is in fact only to create a certain Artificial or legal entity, to which , Start deletion,the fundamental law maxims, End, of the law of every state itself, annexes an , Start deletion,emptio, End, exemption from the operation of the rules that fall under those heads, as being inapplicable to it. It is only to put a certain number of individuals with their own consent in a situation , Start deletion,with, End, which subjects their property , Start insertion,to, End, a different regulation from that which would attend it if they had not consented to enter into this State.

But if the thing were not truly to be viewed in this right—if the creation of , Start insertion,a, End, corporation were really against those different , Start insertion,heads, End, of the state laws, if it , Start deletion,really, End, , Start insertion,really, End, made an alteration in them , Start deletion,laws, End, in , Start deletion,those respects, End, the particulars which have been , Start deletion,mad, End, mentioned—what would be the consequence of all this? Is it meant to be maintained that Congresscan, Start deletion,not, End, make alterations , Start insertion,in no case, End, in the state laws. If this is intended all the powers of the national government become nugatory. For almost every new law must , Start deletion,is, End,, Start insertion,be, End, an alteration in some way or other , Start deletion,other, End, of , Start deletion,one su one or more old laws, End, some other law either common or statute...

But this idea of the transcendant nature of the power is all exageration. It has been seen that it is only to give individuality to a number of persons voluntarily associated for a particular purpose or to substitute an artificial to a natural , Start insertion,capacity, End, person. It has been seen that in its origin a voluntary association of Individuals was capable of producing , Start deletion,it, End,, Start insertion,the effect, End, without the help of , Start insertion,a particular act of, End, , Start deletion,positive, End, law—And that in England it is a part of the Executive authority.

Perhaps the best definition that can be given of a Corporation is this. It is a legal person or a person created by , Start insertion,act of, End, law, , Start deletion,to hold property or a franchise in succession, End, consisting of one or more , Start deletion,individuals, End, natural persons , Start deletion,capable of, End,, Start insertion,empowered to, End, hold, Start deletion,ing, End, property or a franchise in succession in a legal , Start deletion,as distinct, End,, Start insertion,as contradistinguished, End, from , Start deletion,their, End, , Start insertion,a, End, natural, capacity. According to this , Start insertion,definition, End, , Start deletion,idea of it, End,, of legislation if the United States should declare that all bonds for duties should be given to the Collector of each district by the name of the Collector of the District of A or B and that , Start deletion,the sai, End,, Start insertion,every such bond, End, should enure to such Collector and his successors in office, in trust for the U States, this would be to constitute a Corporation in each district; and it is presumed, that if it had been , Start deletion,thought expedient, End,, Start insertion,proposed, End, to put the Collection of the duties in this train, however the expediency of it might be called in Question, the constitutional right of doing it would never have been disputed.

A still plainer case is this—Congress are empowered to establish post roads. Let it be supposed that it were to be resolved to establish , Start insertion,a, End, turn pike road throughout the united , Start insertion,States, End, under the direction of certain Commissioners by a Certain denomination to be appointed as other officers are; and that certain funds including a portion of Western lands should be vested in them and their successors in office to be disposed of for the purpose of defraying the expences of making the road—this certainly would be a corporation; and can it be doubted that it is within the constitutional power of Congress to make such an arrangement. It is repeated that the expediency of doing it or not doing it is never a test of constitutional right; for the consequence of such a principle would be that every inexpedient or injudicious measure which a government may adopt is unconstitution[ally] an absurdity of the first magnitude.

Again: , Start deletion,There are certain, End, The Western lands are pledged , Start deletion,for, End, as a fund to sink the public debt. Suppose , Start insertion,in order, End, to render the application of the fund still more inviolable, , Start deletion,as has been, End, , Start insertion,, Start deletion,repeatedly, End,, End, , Start deletion,proposed by able men, End, by giving it the character and sanction of private property, as has been repeatedly proposed by able men in Great Britain & if rightly recollected practiced upon in , Start deletion,the, End, , Start deletion,the, End, , Start insertion,a, End, late instance, it had been judged expedient , Start deletion,expedient, End, by Congress to vest those lands in certain Commissioners to be appointed as , Start deletion,off, End, other officers and in their successors in office to be disposed of & the proceeds applied to the redemption of the public debt, , Start deletion,could have an, End, could any objection have been made to the constitutionality of the measure? Certainly none—probably none would have even been thought of from the obvious futility of it. And yet here would have been most manifestly a corporation.

Instances of a similar kind may be multiplied without number in which a natural construction of the powers of Congress would authorise the erection of Corporations as very simple means to , Start deletion,declared ends, End, the specified ends of the governt.

, Start deletion,It is therefore plainly, End, , Start insertion,The erection of a Corporation is plainly then, End, one of those incidental things, one of those ordinary , Start insertion,operations, End, , Start deletion,objects, End, one of those mere means to an end, which was best left to be implied as an ingredient in a general power. Particularly as there might exist prejudices on the point. And it was not prudent to encounter any by unnecessary specifications.

This is not an improper place to take notice of an observation made by the Secretary of State concerning , Start deletion,a, End, the proposition in the Convention to insert specifically a power to make Corporations which he uses as an argument against the power.

What the precise nature, or extent of the proposition, was , Start insertion,or what the reasons for refusing it, End, is not ascertained by any authentic document. As far as any such document exists it only specifies canals.The , Start deletion,memories, End, recollections of individuals do not correspond either as to the import of the proposition or the reasons for not adopting it. Some affirm that , Start deletion,it, End, there was an objection to granting power to erect corporations others that it was thought unnecessary as being incidental to the powers granted and, Start deletion,migh, End, inexpedient to be specified as involving a new topic of objection; others that the purposes of it, being canals and obstructions in rivers were thought irrelative to fœderal , Start deletion,objects, End, regulation. Thus stands the manner, and certainly in this situation there is no inference to be drawn from the fact....

aha const is a god term, ironically used to overturn legal biden election:

https://boingboing.net/2020/11/19/trump-campaign-legal-clown-car-is-an-elite-strike-force-team-says-advisor-jenna-ellis.html

Trump campaign legal advisor Jenna Ellis TWT says the Trump campaign's legal team, which no longer includes any major law firms, but does include America's hairdripping mayor Rudy Giuliani, "is an elite strike force team."

Jenna Ellis: "This is an elite strike force team on behalf of the president and the campaign to make sure that our constitution is protected."

Can you lose your law license for making statements like that? Asking for America.

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https://www.alternet.org/2019/10/republicans-fantasy-constitution-trumps-attack-on-the-constitution-is-nothing-new-for-the-right-which-has-long-tried-to-write-its-own-version/

no lnx

Republicans’ fantasy Constitution: Trump’s attack on the Constitution is nothing new for the right — which has long tried to write its own version

Written by Paul Rosenberg / Salon October 28, 2019

Donald Trump’s recent criticism of the “phony emoluments clause,” used in defense of his since-abandoned G7 scam, was striking for its bluntness. But it’s part of a long history of conservatives flagrantly ignoring the actual Constitution and substituting an imaginary version in its place. At Vox, Ian Millhiser thoroughly debunked the notion that Trump wasn’t violating the Constitution by seeking to hold a summit meeting at his own hotel, including reference to work by Georgetown’s John Mikhail, whose examination of 40 different dictionaries made mincemeat of any “public meaning” argument to try to defend Trump.

Of course Trump doesn’t care about such arguments, and doesn’t rely on typical conservative legal arguments either. But he does rely on the underlying conservative impulse and assumption that the Constitution means whatever he wants it to mean, and that anyone who disagrees with him is subversive.

This view can be found in the so-called “constitutional sheriff’s” movement, which believes that county sheriffs get to pick and chose which laws to enforce and can keep federal law enforcement agents out of their counties. Tellingly, the word “sheriff” — like the word “God” — doesn’t even appear in the Constitution. Trump’s favorite convict sheriff, Joe Arpaio of Arizona, is a member of this movement. The far-right “Oathkeepers” movement has a similar fantasy-based view of the special constitutional status of anyone who’s sworn an oath to serve the government — and who then decides they’ve got a secret identity as a Supreme Court justice.

But don’t be fooled into thinking this is just a fringe conservative view. Dangerous and troubling as these views and that organization may be, it’s the conservative constitutional fantasies from the actual Supreme Court that have done far more damage to our democracy. Take, for example, the Dred Scott decision of 1857, written by Chief Justice Roger Taney, which held that black people had no constitutional rights because when it was adopted, they were regarded as “so far inferior that they had no rights which the white man was bound to respect.” What’s more, Taney claimed, “This opinion was at that time fixed and universal in the civilized portion of the white race.”

That was a lie, as I explained here, based on a fantasy past. In the real past, slavery was abolished in the Vermont Republic in 1777, well before the Constitution was drafted, and Quock Walker sued for and won his freedom under the Massachusetts Constitution in 1781 — again, before the Constitution was drafted.

Walker’s case deserves closer inspection to show specifically how wrong Taney was. Walker had been promised his freedom, but his master died before the promised date, and his widow married a man who not only refused to free Walker, but beat him as well. Walker won not one, but two civil jury trials, both of which affirmed his freedom and awarded monetary damages, after which the man who had abused him was convicted in criminal trial.

In his charge to the jury, Chief Justice William Cushing stated that, “slavery is … as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence.” That unambiguous recognition of “the granting of rights and privileges” directly contradict Taney’s false premise in Dred Scott. The “fixed and universal” opinion he wrote about was a racist fantasy.

There was also a future fantasy involved in the Dred Scott decision — the fantasy that the decision would put an end to abolitionism,, and secure the institution of slavery once and for all. Instead, it only fueled the dynamic which eventually brought the Civil War, which was initiated by the South, based on yet another fantasy — the one about absolute states’ rights (except, of course, when it came to forcing Northern states to return escaped slaves.)

The fantasy of corporate personhood

After that terrible struggle, we passed the Civil War amendments to firmly establish the full citizenship rights of black Americans, which in turn would become the subject of multiple conservative fantasies, primarily involving the 14th Amendment. First was the fantasy — still haunting us today — that the 14th Amendment established “corporate personhood” and was actually intended to protect corporations as much as freed slaves and their descendants. This fantasy, too, came to us from the Supreme Court, though in a remarkably muddled way, asUCLA law professor Adam Winkler describes here.

In Santa Clara County v. Southern Pacific Railroad Company, the court reporter (a former railroad president) inserted a headnote saying that justices agreed that corporations were people under the meaning of the 14th Amendment, even though the decision itself said nothing at all on the subject. To this day, that case is mistakenly cited as precedent establishing corporate personhood, despite its silence. One of the justices hearing the case, Stephen J. Field, got the ball rolling, as Winkler explains:

A few years later, in an opinion in an unrelated case, Field wrote that “corporations are persons within the meaning” of the Fourteenth Amendment. “It was so held in Santa Clara County v. Southern Pacific Railroad,” explained Field, who knew very well that the Court had done no such thing.

That’s only one facet of how muddled the story is, as Winkler explains. The idea was first advanced in 1882 by Roscoe Conkling, a lawyer for Southern Pacific who was the last living member of the drafting committee responsible for writing the 14th Amendment. Conkling told the Court that the drafters had altered the wording, replacing “citizens” with “persons” specifically to cover corporations as well. There’s no other evidence supporting this claim, and substantial reason to doubt it. An unpublished journal of the committee’s deliberations that Conklin offered in support was later found to completely contradict his claim: The language had never been changed. “So far as anyone can tell, the rights of corporations were not raised in the public debates over the ratification of the Fourteenth Amendment or in any of the states’ ratifying conventions,” Winkler notes, nor had anyone else on the committee ever made such a claim.

Even at the time, Conkling’s account was suspect, according to Winkler. He made the argument in a case that languished for three years before Southern Pacific suddenly settled it, after which the railroad brought a nearly identical case to the Supreme Court, with the same legal team — except for Conklin. “Tellingly, Southern Pacific’s lawyers omitted any mention of Conkling’s drafting history or his journal,” Winkler notes. “Had those lawyers believed Conkling, it would have been malpractice to leave out his story.”

So everything else was premised on Conklin’s lie, which even his own colleagues didn’t believe. But there were so many other bad actors involved, it was like a Trump Cabinet meeting. In fact, Field sounded just like one of them, as Winkler describes:

Taxing the property of railroads differently, he said, was like allowing deductions for property “owned by white men or by old men, and not deducted if owned by black men or young men.”

In short, this was a collective fraud perpetrated by a whole collective of scoundrels, creating a fantasy version of the 14th Amendment that’s become deeply and profoundly embedded in American law. It was famously used, Winkler notes, to strike down numerous economic regulations, including federal child labor laws, zoning laws, and wage-and-hour laws,” at the same time that Plessy v. Ferguson (the next case on our list) refused to apply the 14th Amendment to protect the rights of African Americans:

Between 1868, when the amendment was ratified, and 1912, the Supreme Court would rule on 28 cases involving the rights of African Americans and an astonishing 312 cases on the rights of corporations.

More white supremacist fantasies

As we’ll see below, another strange wrinkle emerged in the modern era: for the Supreme Court’s hardcore conservatives, the 14th Amendment’s Equal Protection clause exists almost solely to strike down affirmative action. But first, we need to turn to Plessy v. Ferguson, in which the Court ruled that segregated facilities (supposedly “separate but equal”) did not deprive blacks of equal protection under law. It’s a much more ornate and convoluted lie than the one in Dred Scott, as I explained here, but to boil things down into basic fantasies, we need consider only three. First was the fantasy that the problem was all in black people’s heads:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Second came the exact opposite fantasy, that black inferiority was an immutable fact that human laws could do nothing to alter:

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.

Third was the fantasy that either nothing needed to be done, or that nothing could be done:

If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

Of course, this last was pure sophistry. The civil and political rights were obviously not equal, which was why the case had been brought in the first place. And that inequality perpetuated social inequality — specifically via segregation — as indeed was the whole point. It took decades of racist terror to get to the point where such an absurd concoction of fantasies could be propounded with such seriousness. The court pretended that black civil and political rights would still be protected, even after three decades of white racist violence proved otherwise, and that they could be neatly severed from “social rights” such as riding in an integrated railroad car — that being the issue at hand in Plessy.

The fantastical nature of the Plessy decision is thrown into sharp contrast by the bracing realism of John Marshall Harlan’s dissent. “The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution,” Harlan wrote. “It cannot be justified upon any legal grounds.” The phrase “badge of servitude” comes directly from the 13th Amendment, underscoring the broader context that gave meaning to the 14th Amendment’s Equal Protection Clause.

Next, fast forward a century to Bush v. Gore, the case that settled the 2000 presidential election. In that instance, conservative justices who had never applied the Equal Protection Clause to defend black voting rights suddenly discovered its overwhelming importance in protecting the rights of ballots to be counted equally — by paradoxically ensuring that no ballots were counted at all! There was never any thought of who the voters casting the ballots might be, much less whether they could possibly constitute a class, as Equal Protection jurisdiction normally requires. It was not just a fantasy, but a farce.

Rather than dig into the details of the case, I’ll merely draw on a big-picture observation made by Geoffrey R. Stone, an editor of the Supreme Court Review, whom I quoted from here in July. Stone noted that the three hardcore conservatives on the court at that time — William Rehnquist, Antonin Scalia and Clarence Thomas—had cast 65 votes in non-unanimous decisions interpreting the Equal Protection Clause in the previous decade, 19 of which involved affirmative action. Collectively, they’d cast exactly two votes finding Equal Protection Clause violations in those cases — one less vote in an entire decade than they cast in the Bush v. Gore decision.  Summing up, Stone wrote:

What does this tell us? It tells us that Justices Rehnquist, Scalia and Thomas have a rather distinctive view of the United States Constitution. Apparently, the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newly freed slaves, is to be used for two and only two purposes — to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election.

Put simply, the Equal Protection Clause those justices recognized does not exist. It was a bad-faith fantasy of their own invention.

Fantasies of guns and God

Race is clearly a major driver of conservative constitutional fantasies. But it’s not the only one, as shown by the Court’s Heller decision, the first ever recognize an individual right to gun ownership in the Second Amendment — a position that former Chief Justice Warren Burger (a Republican appointee) once called “a fraud on the American public.” The decision by Antonin Scalia was so roundly criticized that Scalia co-authored a book in its defense, “Reading Law: The Interpretation of Legal Texts,” which was ripped to shreds by then-appeals court judge Richard Posner, in a devastating review titled “The Incoherence of Antonin Scalia.” To be clear, both Burger and Posner were highly respected conservative jurists. But they were not fantasists when it came to the Second Amendment.

Posner has a great deal to say about Scalia more generally, but my point is simple: Scalia claimed to be a textualist, but he completely ignored the following italicized text of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

That text clearly articulates a collective need, thereby justifying a collective right. This is how the Second Amendment had always been understood, until, as Michael Waldman explained, the National Rifle Association embarked on a multi-decade propaganda campaign to brainwash the American public. Brainwashing can effectively spread a fantasy. But it is powerless to transform it into truth.

Just as the NRA waged a decades-long propaganda war to push their constitutional fantasy through the Supreme Court, many on the religious right are organizing to do the same with the First Amendment now. They’d like to use their fantasy version of “religious freedom” as a license to discriminate, and ultimately create a two-tiered society, just like the one enshrined long ago by Plessy. They’ve at least gotten their foot in the door with decisions like Hobby Lobby and Masterpiece Cakeshop.

Progressive activists, both secular and religious, have been fighting back in recent years, particularly focused on reclaiming the true meaning of Religious Freedom Day, as I’ve written about here in 2016, 2017,  2018 and 2019. I’ve also written repeatedly about Project Blitz (here, here, here and here), a state-level campaign employing this “religious freedom” fantasy to advance a three-stage, state-level theocratic agenda, first uncovered by researcher Frederick Clarkson last year. All this is embodied in a more sweeping fantasy of America as a Christian nation, a fantasy thoroughly debunked by Andrew Seidel in “The Founding Myth: Why Christian Nationalism is Un-American” (Salon interview here), and challenged on the ground by a new initiative, Christians Against Christian Nationalism (Salon story here). Directly confronting the constitutional fantasy aspect, the third part of Seidel’s book is entitled “The Ten Commandments versus the Constitution,” and it shows how each has elements opposed to principles of the Constitution. The Supreme Court has yet to write this fantasy into law, but shown by the examples above, it would hardly be out of character for them to do so.

Beyond the examples cited — and others like them — there’s another way in which conservative constitutional fantasies lead us astray, not at the level of individual decisions, but at the level of judicial philosophy. I already mentioned Posner’s refutation of Scalia’s version of textual originalism, but that’s only one version of the broader originalist approach, which Georgia State law professor Eric Segall dismantled in his 2018 book “Originalism as Faith,” which I wrote about here. In Segall’s view, originalism meets a lot of psychological needs, not just for judges, but for the broader public as well:

When the justices connect us to our past by supporting their decisions with persuasive evidence of prior agreements, they cultivate and maintain a distinctively American approach to hard public policy questions.

In addition, judicial appeals to original meaning might suggest that the justices are following the decisions of the founders, not imposing their own personal values. The justices want the American people to have faith that their decisions are grounded in prior law, not personal predilection, and references to originalist sources make that goal easier.

It’s a soothing “just-so story,” in other words. But it utterly fails in practice, as Segall told me in our interview:

Virtually every constitutional law case [decided by the Supreme Court] involves text that is imprecise, unclear, vague — equal protection, due process, establishment, unreasonable search and seizure, whatever. And as applied to the facts of any modern case, the history behind that is going to be extremely contested, even if we assume its relevance, which I don’t necessarily assume.

Thus, originalism is worthless at best. At worst, it’s a smokescreen for bad decisions:

The main argument in my book is that originalism doesn’t do anything. It’s never done anything. Forget about it. We should stop pretending text, history and precedent dictate Supreme Court decisions, and we should make [the justices] explain exactly why they’re doing what they’re doing — for transparency purposes.

But transparency is the last thing that the conservative peddlers of constitutional fantasies want. They didn’t want it in Dred Scott, nor in Plessy, Santa Clara, Heller or Bush v. Gore. At bottom, President Trump’s “phony emoluments clause” was nothing new for conservatives. In fact, it was part of a very long tradition. You might even say it was evidence that he’s a true conservative after all!

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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https://theconversation.com/the-american-founders-made-sure-the-president-could-never-suspend-congress-122703

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https://www.alternet.org/2019/05/the-ungodly-constitution-how-the-founding-fathers-ensured-america-would-not-be-a-christian-nation/

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https://www.alternet.org/2019/04/a-professor-of-constitutional-law-explains-how-the-alt-right-corrupts-the-constitution

https://en.wikipedia.org/wiki/United_States_Bill_of_Rights

....

Application and text

The Bill of Rights had little judicial impact for the first 150 years of its existence; in the words of Gordon S. Wood, "After ratification, most Americans promptly forgot about the first ten amendments to the Constitution."[78][79] The Court made no important decisions protecting free speech rights, for example, until 1931.[80] Historian Richard Labunski attributes the Bill's long legal dormancy to three factors: first, it took time for a "culture of tolerance" to develop that would support the Bill's provisions with judicial and popular will; second, the Supreme Court spent much of the 19th century focused on issues relating to intergovernmental balances of power; and third, the Bill initially only applied to the federal government, a restriction affirmed by Barron v. Baltimore (1833).[81][82][83] In the twentieth century, however, most of the Bill's provisions were applied to the states via the Fourteenth Amendment—a process known as incorporation—beginning with the freedom of speech clause, in Gitlow v. New York (1925).[84]

 In Talton v. Mayes (1896), the Court ruled that Constitutional protections, including the provisions of the Bill of Rights, do not apply to the actions of American Indian tribal governments.[85] Through the incorporation process the United States Supreme Court succeeded in extending to the States almost all of the protections in the Bill of Rights, as well as other, unenumerated rights.[86] The Bill of Rights thus imposes legal limits on the powers of governments and acts as an anti-majoritarian/minoritarian safeguard by providing deeply entrenched legal protection for various civil liberties and fundamental rights.[87][88][89] 

The Supreme Court for example concluded in the West Virginia State Board of Education v. Barnette (1943) case that the founders intended the Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities.[87][88][89][90] As the Court noted, the idea of the Bill of Rights “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”[90][91] This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”[90][91]

First Amendment

Main article: First Amendment to the United States Constitution

Congress shall make no law respecting an establishment ofreligion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[92]

The First Amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. Initially, the First Amendment applied only to laws enacted by Congress, and many of its provisions were interpreted more narrowly than they are today.[93]

In Everson v. Board of Education (1947), the Court drew on Thomas Jefferson's correspondence to call for "a wall of separation between church and State", though the precise boundary of this separation remains in dispute.[93] Speech rights were expanded significantly in a series of 20th- and 21st-century court decisions that protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof for libel suits, most notably in New York Times Co. v. Sullivan (1964).[94] Commercial speech is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.[93]

The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota (1931)[95] and New York Times v. United States (1971),[96] the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.[93]

Second Amendment

Main article: Second Amendment to the United States Constitution

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.[92]

The Second Amendment protects the individual right to keep and bear arms. The concept of such a right existed within English common law long before the enactment of the Bill of Rights.[97] First codified in the English Bill of Rights of 1689 (but there only applying to Protestants), this right was enshrined in fundamental laws of several American states during the Revolutionary era, including the 1776 Virginia Declaration of Rights and the Pennsylvania Constitution of 1776. Long a controversial issue in American political, legal, and social discourse, the Second Amendment has been at the heart of several Supreme Court decisions.

Third Amendment

Main article: Third Amendment to the United States Constitution

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.[92]

The Third Amendment restricts the quartering of soldiers in private homes, in response to Quartering Acts passed by the British parliament during the Revolutionary War. The amendment is one of the least controversial of the Constitution, and, as of 2016, has never been the primary basis of a Supreme Court decision.[103][104][105]

Fourth Amendment

Main article: Fourth Amendment to the United States Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[92]

The Fourth Amendment guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and seizure (including arrest) must be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer who has sworn by it. The amendment is the basis for the exclusionary rule, which mandates that evidence obtained illegally cannot be introduced into a criminal trial.[106] The amendment's interpretation has varied over time; its protections expanded under left-leaning courts such as that headed by Earl Warren and contracted under right-leaning courts such as that of William Rehnquist.[107]

Fifth Amendment

Main article: Fifth Amendment to the United States Constitution

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[92]

The Fifth Amendment protects against double jeopardy and self-incrimination and guarantees the rights to due process, grand jury screening of criminal indictments, and compensation for the seizure of private property under eminent domain. The amendment was the basis for the court's decision in Miranda v. Arizona (1966), which established that defendants must be informed of their rights to an attorney and against self-incrimination prior to interrogation by police.[108]

Sixth Amendment

Main article: Sixth Amendment to the United States Constitution

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.[92]

The Sixth Amendment establishes a number of rights of the defendant in a criminal trial:

In Gideon v. Wainwright (1963), the Court ruled that the amendment guaranteed the right to legal representation in all felony prosecutions in both state and federal courts.[109]

Seventh Amendment

Main article: Seventh Amendment to the United States Constitution

In suits at common law, where the value in controversy shall exceed twenty dollars, the right oftrial by juryshall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.[92]

The Seventh Amendment guarantees jury trials in federal civil cases that deal with claims of more than twenty dollars. It also prohibits judges from overruling findings of fact by juries in federal civil trials. In Colgrove v. Battin (1973), the Court ruled that the amendment's requirements could be fulfilled by a jury with a minimum of six members. The Seventh is one of the few parts of the Bill of Rights not to be incorporated (applied to the states).[110]

Eighth Amendment

Main article: Eighth Amendment to the United States Constitution

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.[92]

The Eighth Amendment forbids the imposition of excessive bails or fines, though it leaves the term "excessive" open to interpretation.[111] The most frequently litigated clause of the amendment is the last, which forbids cruel and unusual punishment.[112][113] This clause was only occasionally applied by the Supreme Court prior to the 1970s, generally in cases dealing with means of execution. In Furman v. Georgia (1972), some members of the Court found capital punishment itself in violation of the amendment, arguing that the clause could reflect "evolving standards of decency" as public opinion changed; others found certain practices in capital trials to be unacceptably arbitrary, resulting in a majority decision that effectively halted executions in the United States for several years.[114] Executions resumed following Gregg v. Georgia (1976), which found capital punishment to be constitutional if the jury was directed by concrete sentencing guidelines.[114] The Court has also found that some poor prison conditions constitute cruel and unusual punishment, as in Estelle v. Gamble (1976) and Brown v. Plata (2011).[112]

Ninth Amendment

Main article: Ninth Amendment to the United States Constitution

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[92]

The Ninth Amendment declares that there are additional fundamental rights that exist outside the Constitution. The rights enumerated in the Constitution are not an explicit and exhaustive list of individual rights. It was rarely mentioned in Supreme Court decisions before the second half of the 20th century, when it was cited by several of the justices in Griswold v. Connecticut (1965). The Court in that case voided a statute prohibiting use of contraceptives as an infringement of the right of marital privacy.[115] This right was, in turn, the foundation upon which the Supreme Court built decisions in several landmark cases, including, Roe v. Wade (1973), which overturned a Texas law making it a crime to assist a woman to get an abortion, and Planned Parenthood v. Casey (1992), which invalidated a Pennsylvania law that required spousal awareness prior to obtaining an abortion.

Tenth Amendment

Main article: Tenth Amendment to the United States Constitution

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[92]

The Tenth Amendment reinforces the principles of separation of powers and federalism by providing that powers not granted to the federal government by the Constitution, nor prohibited to the states, are reserved to the states or the people. The amendment provides no new powers or rights to the states, but rather preserves their authority in all matters not specifically granted to the federal government.[116]

Congress has sometimes gotten around the Tenth Amendment by invoking the Commerce Clause in Article One[117] or by threatening to withhold funding for a federal program from noncooperative States, as in South Dakota v. Dole (1987).

Display and honoring of the Bill of Rights

George Washington had fourteen handwritten copies of the Bill of Rights made, one for Congress and one for each of the original thirteen states.[118] The copies for Georgia, Maryland, New York, and Pennsylvania went missing.[119] The New York copy is thought to have been destroyed in a fire.[120] Two unidentified copies of the missing four (thought to be the Georgia and Maryland copies) survive; one is in the National Archives, and the other is in the New York Public Library.[121][122] North Carolina's copy was stolen from the State Capitol by a Union soldier following the Civil War. In an FBI sting operation, it was recovered in 2003.[123][124] The copy retained by the First Congress has been on display (along with the Constitution and the Declaration of Independence) in the Rotunda for the Charters of Freedom room at the National Archives Building in Washington, D.C. since December 13, 1952.[125]

After fifty years on display, signs of deterioration in the casing were noted, while the documents themselves appeared to be well preserved.[126] Accordingly, the casing was updated and the Rotunda rededicated on September 17, 2003. In his dedicatory remarks, President George W. Bush stated, "The true [American] revolution was not to defy one earthly power, but to declare principles that stand above every earthly power—the equality of each person before God, and the responsibility of government to secure the rights of all."[127]

In 1941, President Franklin D. Roosevelt declared December 15 to be Bill of Rights Day, commemorating the 150th anniversary of the ratification of the Bill of Rights.[128] In 1991, the Virginia copy of the Bill of Rights toured the country in honor of its bicentennial, visiting the capitals of all fifty states.[129]