14th amend bak
ca slow to ratify
~ big lie insurrection jan 6
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an 3 26
The Trump administration is turning to Civil War-era white supremacists in its challenge to a more than one century-old ruling, based on the 14th Amendment, that states that most children born in the United States are U.S. citizens.
Over a century ago, Confederate officer and Louisiana attorney Alexander Porter Morse “was among a trio of thinkers who spearheaded a failed effort — steeped in anti-Black and anti-Chinese racism — to erase birthright citizenship,” The Washington Post reported. “The Trump administration is reviving their arguments to make its case today, some legal scholars say.”
University of New Hampshire history professor Lucy Salyer told the Post “she was struck that the Trump administration had chosen to elevate those figures and their ideas.”
“If you know the history and the broader context of what they were trying to achieve,” Salyer said, “it does ring alarm bells.”
The Post adds that “Trump administration attorneys cite Morse in their Supreme Court brief to argue the disputed idea that commentators in the 19th century widely agreed that the Constitution ‘exclude[s] the children of foreigners transiently within the United States’ from qualifying for citizenship.”
President Trump is making clear exactly where he stands on the issue of birthright citizenship. On his first day back in office Trump signed an executive order attempting to limit birthright citizenship for certain U.S.-born children of undocumented or temporary-status parents.
On Monday, the president went even further.
“Birthright Citizenship is not about rich people from China, and the rest of the World, who want their children, and hundreds of thousands more, FOR PAY, to ridiculously become citizens of the United States of America,” the president wrote on Truth Social. “It is about the BABIES OF SLAVES!”
“Look at the dates of this long ago legislation – THE EXACT END OF THE CIVIL WAR!” he continued. “The World is getting rich selling citizenships to our Country, while at the same time laughing at how STUPID our U.S. Court System has become (TARIFFS!). ‘Dumb Judges and Justices will not a great Country make!'”
The Post notes that the ACLU calls the administration’s argument “nothing less than a remaking of our Nation’s constitutional foundations.” They say it would apply to tens of thousands of children born in the U.S. every month, and would be “devastating” to families around the country.
“But worse yet, the government’s baseless arguments — if accepted — would cast a shadow over the citizenship of millions upon millions of Americans, going back generations.”
According to the Post, the 1800s campaign against birthright citizenship also relied on prominent legal scholar Francis Wharton, who posited the idea that citizenship be granted to children of European immigrants but not to children of Chinese immigrants.
“Like Wharton, the Trump administration says in its brief a child’s citizenship is dependent on the parents’ nationality, not birth in the United States.”
The Trump administration, also like Wharton, “highlights the 14th Amendment phrase ‘subject to the jurisdiction thereof ,’ saying it disqualifies children of illegal migrants and temporary visitors from becoming citizens because they can’t demonstrate the necessary political allegiance to the United States the phrase evokes.”
The case, which will consider the legality of Trump’s executive order, will be argued before the Supreme Court on Wednesday.
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14th amend
==
see 5th
see takings
see sludge
bak 7/20
==
EXXON ASSERTS 1ST 4TH 14TH
http://climatecasechart.com/climate-change-litigation/case/exxon-mobil-corp-v-healey/
Exxon Mobil Corp. v. Healey
Filing Date: 2016
Case Categories:
Principal Laws:
First Amendment, Fourth Amendment, Fourteenth Amendment, Commerce Clause, Supremacy Clause, State Law—Common Law
Description: Action by Exxon Mobil Corporation to bar enforcement of civil investigative demand issued by Massachusetts attorney general and subpoena issued by New York attorney general.
[LONG LIST OF DOCS, OTHER CASES]
YIKES SEE AMICUS
:{
}:
attempt to use NAACP v Ala/ 14th? to make corp dark $ CONST PROTECTED?!
...
The negative effects that these new amicus campaigns have on our democ-
racy are twofold. The wealthy few fund the campaigns, excluding the majority
of Americans from the process and exacerbating preexisting countermajoritarian
and inequality concerns. And without a mechanism for disclosure, the general
public currently does not, and cannot, know how judicial reasoning is influenced
by masked private actors.
...
Donors have reaped enormous returns on their investments. As I have doc-
umented, the :{Roberts Court has handed down over eighty partisan Republican
5-4 decisions}: 87 that benefit an easily identifiable Republican Party-donor inter-
est.88
:{These include decisions that remove constraints on anonymous giving
(e.g., Citizens United v. FEC,89 Americans for Prosperity Foundation v. Bonta90), as
well as decisions that weaken the power of countervailing institutions like labor
unions}: (e.g., Janus v. American Federation of State, City & Municipal Employees,
158:{
Council 3191), regulatory agencies (}:e.g., Seila Law v. Consumer Financial Protection
Bureau92), and the civil jury (e.g., Epic Systems Corp. v. Lewis93).
The effects of this litigation strategy on our democracy are frightening: the
courts are becoming an arena for enacting policies by judicial decree that are too
unpopular to pass through democratically elected legislatures. These coordi-
nated efforts warp the judiciary toward anonymous, ultrawealthy donor inter-
ests, all without the public ever learning about the role of dark-money interests
in shaping the law. The Supreme Court was already, by its nature, an avenue for
countermajoritarian ideas and policies to prosper.
But as Barry Friedman ex-
plains, especially when the Court is acting during a period of judicial suprem-
acy—as it arguably is now—the countermajoritarian aspect of the institution will
flourish.94 Alongside those concerns, the emergence of the dark-money amicus
machine increases the probability that the Court’s rulings will run counter to the
will of the American people (i.e., counter to democracy), and instead for the
benefit of the hidden interests that had a secret hand in putting Justices on the
Court and then filed masked amicus briefs...
151
:{Sure enough,:{ Chief Justice Roberts’s}: ruling in favor of the Koch network—a:{6-3 decision with all Republican-appointed Justices in the majority—cast doubt}:
on the constitutionality of disclosure requirements of any kind, turbocharging
the kind of secretive influence through which the Koch operation and its allies
already dominate the public sphere.}:56
:{
}:
:{:{Significantly, many of the donors behind these amici lobbied for the confir-}:
mation of the Justices hearing the case. For instance, Americans for Prosperity,
the 501(c)(4) group directly affiliated with the plaintiff Foundation, spent “mil-
lions” of dollars on a “Full Scale Campaign” to confirm Justice Barrett to the
bench while AFPF’s cert petition was pending before the Court.}:57
Yet, in spite of all this lobbying on her behalf by an affiliate of one of the parties, Justice Barrett
rebuffed calls for her recusal in this matter by me and others—a recusal seem-
ingly required under the Court’s own due-process precedent58—and heard the
case anyway.59
:{
}:
D. Amicus Briefs and Dark-Money Influence on the Courts
:{
}:
Amicus briefs play an important role in the appellate process. Indeed, I have
filed many myself.60 Interested parties should be able to use amicus briefs to ad-
vance their view of the law or their conception of the public interest or to educate
...
https://www.yalelawjournal.org/pdf/F7.WhitehouseFinalDraftWeb_v4zwakx5.pdf
thom h 10 22
...But that’s just the beginning of the out-of-control and dangerous behavior of the far-right radicals on today’s court. Since there’s been a conservative majority on the Court it has, among other things:
:{
}:
*Handed the 2000 election to George W. Bush
*Radically cut back the rights of unions to organize and represent workers
*Declared that billionaires buying politicians is merely “free speech”
*Gutted the power of the EPA to regulate planet-destroying carbon pollution
*And ripped the heart out of both the Civil Rights Act and the Voting Rights Act.
:{
}:
In just the past year this Court, now stacked with 3 new and deeply unqualified (but young!) hard-right Trump-humping activists, has already ruled to:
*End the 6th Amendment right of prisoners to challenge convictions when their lawyers were demonstrably corrupt or incompetent (Shinn v Ramirez. In her dissent, Justice Sotomayor wrote, “The Court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.”
*Further gut Americans’ right to vote. In 3 separate cases, Merrill v Milligan, Wisconsin Legislature v. Wisconsin Elections Commission, and Ardoin v. Robinson the six rightwing justices endorsed three separate Republican gerrymanders and voting maps in Wisconsin, Louisiana, and Alabama that were each unabashedly based on efforts to enhance the electoral power of white voters.
*Remove from US citizens who move to (or live in) Puerto Rico the right to receive certain Social Security benefitsin their US v Vaello-Madero case. Whacking the rights of over 300,000 Americans living in PR, the six crazies on the Court ruled that only Congress could fix the damage they themselves were doing. The problem with that, as Justice Sonia Sotomayor pointed out in her dissent, is that because PR isn’t yet a state and has no member of Congress to fight on their behalf the Court was simply “punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment.”
*Take away your Miranda rights to remain silent, avoid self-incrimination, and know you have access to a lawyer. Americans cannot, the 6 “conservatives” on the Court ruled in Vega v. Tekoh, sue police officers who fail to tell them their Miranda rights.
*Eliminate many non-citizens’ rights under the Constitution when abused by the federal government. While the Constitution refers to “persons” rather than “citizens” in most critical places (like the 14th Amendment guaranteeingequal protection under the law), the Court decided in two cases, Garland v. Gonzalez and in Johnson v. Arteaga-Martinez, that noncitizens often are not entitled to bond hearings or class-wide injunctive relief when screwed by the feds.
*Rip away 4th Amendment privacy rights against unreasonable search and seizure for all persons living within 100 miles of an ocean or our borders with Mexico or Canada (that’s two out of three American citizens – even here in Portland, I’m within 100 miles of the Pacific Ocean). In Egbert v Boule, the six rightwingers on the Court ruled that border patrol and other federal officers can search you, your home, or your vehicle for any old reason they want because you live in the vicinity of a border or ocean and they consider you suspicious. No warrant necessary anymore.
*Give police officers who use excessive force immunity from accountability. In Rivas-Villegas v. Cortesluna and City of Tahlequah, OK v. Bond the Court upheld its own invention, the doctrine of “qualified immunity,” that makes it almost impossible to sue cops when they wail on you or even kill you (in the Tahlequah case they killed a man in his own garage) for little or no reason.
*Kill the power of the EPA under the Clean Air Act to regulate carbon pollution or protect communities from having their water supplies poisoned by industry seeking profits. West Virginia v EPA ended that agency’s power to regulate carbon dioxide in our atmosphere, and Louisiana v American Rivers handed polluters, overturning 50 years of precedent, the power to overrule states’ and tribes’ rules against pollution of their waterways.
That was last year, and apparently it was just a warm-up:
*Now the Court, in addition to taking on Moore v Harper that could guarantee no Democrat in our lifetimes will ever again become president, is planning to take a second large bite out of the Voting Rights Act in Merrill v Mulligan.
*In Students for Fair Admissions v. Harvard and Students for Fair Admission v. University of North Carolina the 6-judge majority will probably end affirmative action.
*In Kennedy v. Bremerton School District the Court allowed a coach to impose prayer on public school students because “religious liberty.”
*Even as guns have become the leading cause of death among American children and gun-related crime is washing over our country like a poisonous bloody tide, the Court is preparing to unleash even more weapons on our nation by gutting gun owner licensure laws in New York State Rifle & Pistol Association v. Bruen.
Virtually every one of these decisions are or will be based on the power the Court gave itself to overturn laws passed by Congress and signed by the President in its 1803 Marbury v Madison case.
violates the rights of white ppl?!
an 10 22
President Joe Biden’s relief plan for student loan debt is facing yet another lawsuit with a legal challenge from an organization in Wisconsin.
According to The Washington Post, the Brown County Taxpayers Association in Wisconsin, alleges that the plan includes “improper racial motive” and"violates the 14th Amendment’s equal protection clause."
“By creating and implementing a federal program with an improper racial motive, Defendants violated the Constitution’s guarantee of equal protection of the laws, which among other things, prohibits federal spending based on race,” states the lawsuit, per documents obtained by the news outlet.
READ MORE: 'Just kidding': Biden Administration yanks student debt relief for millions as GOP states sue
However, the White House insists the plan, which is set to provide up to $20,000 in student loan debt relief for American borrows, will “advance racial equity.”
“Black students are more likely to have to borrow for school and more likely to take out larger loans,” the White House's student loan debt relief fact sheet states. It also adds that “Black borrowers are twice as likely to have received Pell Grants compared to their white peers.”
Per HuffPost, The White House also cited "an Urban Institute study that showed tailoring measures to graduates who were awarded Pell Grants would help make progress on racial equity."
The latest reports about the legal challenge in Wisconsin come days after White House press secretary Karine Jean-Pierre was asked whether or not the flurry of lawsuits will cause delays for student loan debt relief.
READ MORE: 'Keep borrowers in debt': Republicans plotting legal challenges to Biden’s student debt relief plan
On Tuesday, October 4, Jean-Pierre addressed the situation while speaking to reporters. While the press secretary did not offer a definitive answer regarding the possibility of delays, she did offer a critical assessment of Republicans fighting to stop Americans from receiving financial relief.
“It’s a shame that you have Republicans out there — Republican groups, Republican states — that are trying to stop Americans from getting a little bit of a breathing room, a little bit of a break,” Jean-Pierre told reporters.
Biden's student loan debt relief initiative is poised to help reduce the financial strain for more than 40 million Americans.
READ MORE: Red states are lining up to stop Biden’s student loan forgiveness plan
==
https://www.nationofchange.org**/2022/07**/07/opus-dei-supreme-indecency-extreme-deceit/
the current Supreme Court majority that just denied women a legal right to abortion (Dobbs vs. Jackson) consists of religious fanatics whose careers have been fast-tracked (so that young Justices can serve for decades) by ultra-wealthy, like-minded lobbyists and political operatives. The nexus of this activity lies with a powerful arch-conservative organization within the Catholic Church, Opus Dei, that in the U.S. operates out of the Catholic Information Center in Washington D.C.
I am not targeting Catholics but rather the Church’s reactionary, fundamentalist wing. Many Catholic organizations are dedicated to upholding the rights and lives of minorities (and majorities, such as women), victims of pedophilic priests, gays, the poor, immigrants, etc. The fundamentalist wing of any religion has more in common with other creeds’ fundamentalisms than with many of its own co-religionists, whom they often regard as enemies. Catholic fundamentalism is obviously not the only “brand” influencing American politics, but it is the one with a dominant insidious influence on the judiciary.
Opus Dei and its partner organizations have poured tens of millions of dollars into promoting the careers and appointments of Chief Justice Roberts and the five Justices who overturned Roe: Thomas, Alito, Kavanaugh, Gorsuch, and Barrett (Roberts, an arch-conservative, nonetheless dissented on the abortion case).
Opus Dei was founded in Spain by Escriva de Balaguer in 1928 and grew in power, wealth, and influence during the Fascist dictatorship of Francisco Franco who, with significant military help from Nazi Germany, overthrew the legitimate Spanish government and ruled over a police state from 1939-1975.The group extended its power throughout Latin America, supporting Pinochet’s murderous regime in Chile and other terrorizing dictatorships. It consistently opposes gay, sexual, and reproductive rights, and the Catholic liberation movements that champion the poor in Latin America. It has been involved in the Vatican’s banking scandals but still wields enormous influence over Vatican finances, as detailed by Robert Hutchison in his book, Their Kingdom Come.
Opus Dei’s assets as of 2008 were $2.8 billion, but they have undoubtedly grown since. Popes John Paul II and Francisboth elevated Opus Dei officials to the highest Church offices. One of Opus Dei’s core principles, as articulated by its founder, is to engage in “the sphere of public life”, not because they are human or Catholic rights but because “they are God’s rights…May such ‘fanaticism’ for the Faith…become stronger every day.” Opus Dei is not simply a conservative religious group, it is openly dedicated to wielding political and financial power in nations throughout the world. And that often means promoting and aligning itself with the most violent, reactionary regimes and acting in the shadow realms of political influence.
Opus Dei members were prominent in Trump’s White House, including Attorney General William Barr and Pat Cipollone, Trump’s former White House counsel. Opus Dei had access to Trump’s budgetdirector,Mick Mulvaney, along with other noted right-wing lobbyists (Heritage Foundation, Koch Industries), meetings the Trump administrationtried to keep secret. Member Larry Kudlow was Trump’s director of the National Economic Council. It may well be the most powerful political lobby in the world and yet its explicit political agenda is absolutely subservient to its extreme, authoritarian religious agenda.
A key fixer in this effort is Leonard Leo. Leo is on the board of directors of the Catholic Information Center (William Barr was a past director) and Executive Vice Presidentof the Federalist Society, a lobbying group that adheres to an “originalist” interpretation of the Constitution (more on this below). The two organizations are close political allies, as Leo’s dual role suggests. As Trump’s close advisor during his presidency, Leo was responsible for selecting and guiding the Supreme Court nominations of Alito, Barrett, Kavanaugh, and Gorsuch and was instrumental in riddling the lower Federal courts with Trump appointees.
Meanwhile, members of both Opus Dei and The Federalist Society include Alito, Clarence Thomas, and the late Justice Antonin Scalia. Chief Justice Roberts is a Federalist Society member and the Society’s members and supporters are prominent in many of nation’s top law schools and most powerful law firms, which allows it to have an untoward influence over judicial selections. When Clarence Thomas headlined a 2013 Federalist Society fundraiser, guests were seated in proximity to him according to the size of their donations. In effect, the Federalist Society and Opus Dei have become the Supreme Court of the land.
Much of Opus Dei’s influence was exerted via the Wellspring Committee, established and run by Opus Dei members Ann and Neil Corkery in 2008. The Koch brothers were instrumental in providing Wellspring with its first $10 million in seed money. According to Robert Maguire of Citizens for Responsibility and Ethics in Washington, the Corkerys “have been the overseers of massive amounts of money that have gone into federal judicial races.”
Wellspring closed down in 2018 but not before passing its mantle to the Judicial Crisis Network (JCN); in 2017 Wellspring transferred $14,814, 998.00, or 94% of its donations that year, to JCN. JCN was formerly directed by Leonard Leo and now byCarrie Severino, who served as Thomas’s law clerk. (Opus Dei’s Roger Severino, Carrie’s husband, was Director of Trump’s Office for Civil Rights). JCN is a 501(c)(4) organization so its donors can remain secret. JCN poured millions into supporting Bush and Trump’s Supreme Court nominees (Roberts, Alito, Kavanaugh, Gorsuch, and Barrett) and millions blockingObama’s Court nominee, Merrick Garland.
Given Opus Dei’s absolute anti-choice ideology, global power, and influence over the Supreme Court, it is clear the Court’s anti-choice decision was not driven by legal arguments over the right to privacy, strict or “originalist” interpretations of the Constitution, or states rights. These were all just window dressing. The Supreme Court—and much of our judiciary—has been taken over by fanatics with a strictly theologicalagenda: to replace “separation of Church and State” with “the Church runs the state”. It is a narrow, fanatical religious ideology that decided the case.
The so-called “originalist” theory of interpreting the Constitution claims the Constitution only protects rights explicitly mentioned in the text. The Constitution itself rejects the “originalist” idea so central to conservative ideology. The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This clearly states that interpreting the Constitution is a living, evolving process, for how else can those “other[s]” rights be “retained by the people”? The Ninth is also a safety valve: “If we left out any important rights, sorry, our bad, it doesn’t mean those rights aren’t protected as well.” The Ninth has been used to uphold such diverse rights as teaching non-English languages, sending kids to private schools, protecting against forced sterilization, and the 1965 Griswold decision overturning bans on contraception, in which privacy was deemed a “penumbra” (also called “unenumerated”) right. The penumbra concept was then applied to abortion in 1973’s Roe decision.
Justice Harry Blackmun wrote the majority decision in Roe v. Wade, citing both the Ninth and Fourteenth Amendments:“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or…in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.” The Court also recognized that “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary…is not in a position to speculate as to the answer.” Blackmun’s decision includes an overview of the dramatic shifts in cultural and legal attitudes towards abortion, though most views differentiated abortions in the first 12-16 weeks (before the baby is usually felt moving inside the womb) from those occurring later.
The “sanctity of the foetus”, that is, viewing abortion at any stage of pregnancy as equivalent to murder, is the linchpin of the anti-choice position and its driving emotional trigger. However, even the Catholic Church’s historical opposition to abortion had nothing to do with the sanctity of the foetus; it was aimed at the “sin” of sexual pleasure. Church policy varied over the centuries but the foetus’s life was either absent as an issue or secondary to sexual sin and other theological concerns. St. Thomas Aquinas asserted that in its earlier stages a foetus is in a “vegetal” and then “animal” state before achieving person-hood at some point, most likely at the end of the third month.It wasn’t until 1965 that the Church banned abortion on the basis of sanctity of life rather than sexual sin.However, the Bible passages used to justify this claim 1) do not really address abortion (the BIble is much more direct in advising that adulterers be stoned to death); 2) are drawn mostly from the Old Testament, a Jewish document, significant since the Jewish religion allows abortion; and 3) are in the Bible, which has no legal standing in the United States. Or didn’t.
The Court’s decision in Dobbs v. Jacksonis only the beginning, as anti-abortion activists and GOP-led extremists mobilize to assault a wide range of rights. The anti-choice movement was never only about abortion. Abortion was used as the emotional catalyst for a broad attack on the values of tolerance and social commitment embodied in Federal guarantees backed by Constitutional authority. The well-being of Americans and our system of government is now in the hands of religious fanatics on a crusade against all those who do not believe in their degraded, medieval version of truth. They are welcome to their beliefs but are not welcome to impose those beliefs on the rest of us, nor to challenge the fundamental values of the United States, which holds the value of human beings above adherence to extreme and rigid political or religious ideologies.
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an 2 22
Rep. Madison Cawthorn (R-N.C.) recently expressed concern about a new lawsuit referencing his "Stop the Steal" rhetoric which could subsequently impact his chances of re-election in the 2022 midterm elections. After fighting to push Trump's self-serving agenda, now, according to The Daily Beast, the Republican senator claims he's focused on the will of the American people.
On Monday, February 21, Cawthorn appeared on "The Tucker Carlson Tonight" where he shared his disdain of the critics calling him out in his own state.
“I’m sure that you were as puzzled as I was following Jan. 6 when they started saying that we were insurrectionists, seditionists, traitors. I thought they were just trying to get a flashy headline,” Cawthorn said.
However, the lawmaker also explained how this was part of a so-called “plan.”
Per The Daily Beast, the lawsuit focuses on the14th Amendment, which includes a clause designed to prohibit former Confederates from holding public office. It states that no individual “having previously taken an oath, as a member of Congress... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”
“What is going on here is that they are actually very close to being able to subvert the will of over 700,000 Americans,” Cawthorn claimed.
However, Cawthorn appears to believe every constituent in his district is rallying behind him.
“And make no mistake, Tucker: This is not just about a 26-year-old from western North Carolina in a wheelchair," Cawthorn said. "This is about the future of our very nation. If they’re able to set this precedent in North Carolina, they will be able to keep anybody who had valid and legitimate concerns about what happened in the 2020 election from being able to ever hold office.”
Unsurprisingly, Carlson backed Cawthorn's assessment as he attempted to distort Democratic lawmakers' motives.
“I think your analysis is so smart. You’re exactly right,” the Fox News host gushed. “That’s why they called the rioters ‘insurrectionists.’ And so many conservative officeholders and news organizations have ignored it. They’re so embarrassed. They don’t see what this is really about, which is ending democracy.”
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https://www.propublica.org/article/a-colorblind-constitution-what-abigail-fishers-affirmative-action-case-is-r
when the NAACP began challenging Jim Crow laws across the South, it knew that, in the battle for public opinion, the particular plaintiffs mattered as much as the facts of the case. The group meticulously selected the people who would elicit both sympathy and outrage, who were pristine in form and character. And they had to be ready to step forward at the exact moment when both public sentiment and the legal system might be swayed.
That's how Oliver Brown, a hard-working welder and assistant pastor in Topeka, Kan., became the lead plaintiff in the lawsuit that would obliterate the separate but equal doctrine. His daughter, whose third-grade innocence posed a searing rebuff to legal segregation, became its face.
Nearly 60 years after that Supreme Court victory, which changed the nation, conservatives freely admit they have stolen that page from the NAACP's legal playbook as they attempt to roll back many of the civil rights group's landmark triumphs.
In 23-year-old Abigail Noel Fisher they've put forward their version of the perfect plaintiff to challenge the use of race in college admissions decisions.
Publicly, Fisher and her supporters, chief among them the conservative activist who conceived of the case, have worked to make Fisher the symbol of racial victimization in modern America. As their narratives goes, she did everything right. She worked hard, received good grades, and rounded out her high school years with an array of extracurricular activities. But she was cheated, they say, her dream snatched away by a university that closed its doors to her because she had been born the wrong color: White.
The daughter of suburban Sugar Land, Texas, played the cello. Since the second grade, she said, she dreamed of carrying on the family tradition by joining her sister and father among the ranks of University of Texas at Austin alumni.
And the moment for her to lend her name to the lawsuit might never be riper: The Supreme Court has seated its most conservative bench since the 1930s. The Court is expected to issue a decision any week now in what is considered one of the most important civil rights cases in years.
On a
posted by Edward Blum, a 1973 University of Texas graduate whose nonprofit organization is bankrolling the lawsuit, she is soft-spoken, her strawberry blond hair tucked behind one ear. Not even a swipe of lip gloss adorns her girlish face.
"There were people in my class with lower grades who weren't in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin," she says. "I was taught from the time I was a little girl that any kind of discrimination was wrong. And for an institution of higher learning to act this way makes no sense to me. What kind of example does it set for others?"
It's a deeply emotional argument delivered by an earnest young woman, one that's been quoted over and over again.
Except there's a problem. The claim that race cost Fisher her spot at the University of Texas isn't really true.
In the hundreds of pages of legal filings, Fisher's lawyers spend almost no time arguing that Fisher would have gotten into the university but for her race.
If you're confused, it is no doubt in part because of how Blum, Fisher and others have shaped the dialogue as the case worked its way to the country's top court.
Journalists and bloggers have written dozens of articles on the case, including profiles of Fisher and Blum. News networks have aired panel after panel about the future of affirmative action. Yet for all the front-page attention, angry debate and exchanges before the justices, some of the more fundamental elements of the case have been little reported.
Race probably had nothing to do with the University of Texas's decision to deny admission to Abigail Fisher.
In 2008, the year Fisher sent in her application, competition to get into the crown jewel of the Texas university system was stiff. Students entering through the university's Top 10 program — a mechanism that granted automatic admission to any teen who graduated in the upper 10 percent of his or her high school class — claimed 92 percent of the in-state spots.
Fisher said in news reports that she hoped for the day universities selected students "solely based on their merit and if they work hard for it." But Fisher failed to graduate in the top 10 percent of her class, meaning she had to compete for the limited number of spaces up for grabs.
She and other applicants who did not make the cut were evaluated based on two scores. One allotted points for grades and test scores. The other, called a personal achievement index, awarded points for two required essays, leadership, activities, service and "special circumstances." Those included socioeconomic status of the student or the student's school, coming from a home with a single parent or one where English wasn't spoken. And race.
Those two scores, combined, determine admission.
Even among those students, Fisher did not particularly stand out. Court records show her grade point average (3.59) and SAT scores (1180 out of 1600) were good but not great for the highly selective flagship university. The school's rejection rate that year for the remaining 841 openings was higher than the turn-down rate for students trying to get into Harvard.
As a result, university officials claim in court filings that even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no.
It's true that the university, for whatever reason, offered provisional admission to some students with lower test scores and grades than Fisher. Five of those students were black or Latino. Forty-two were white.
Neither Fisher nor Blum mentioned those 42 applicants in interviews. Nor did they acknowledge the 168 black and Latino students with grades as good as or better than Fisher's who were also denied entry into the university that year. Also left unsaid is the fact that Fisher turned down a standard UT offer under which she could have gone to the university her sophomore year if she earned a 3.2 GPA at another Texas university school in her freshman year.
In an interview last month, Blum agreed Fisher's credentials and circumstances make it difficult to argue — as he and his supporters have so ardently in public — that but for her race Fisher would have been a Longhorn.
"There are some Anglo students who had lower grades than Abby who were admitted also," Blum told ProPublica. "Litigation like this is not a black and white paradigm."
Blum started his one-man nonprofit, the Project on Fair Representation, in 2005. The organization is funded by deep-pocketed conservatives to, according to its website, influence "jurisprudence, public policy, and public attitudes regarding race and ethnicity" in voting, education, contracting and employment. To do so, Blum — who is not a lawyer — helps arrange pro bono representation to fight race-based policies that were meant to address inequalities.
According to a Reuters profile, Blum has brought at least a dozen lawsuits against such programs and laws — including four that made it to the Supreme Court. He has two on the current docket, Fisher and the Shelby County, Ala., case challenging a key provision of the Voting Rights Act.
In the Fisher case, while the young woman may have lent her name to the lawsuit, the case before the Court has very little to do with her. Her name appears just five times in the thousands of words that make up the body of the complaint. She has already gone on to graduate from Louisiana State University, her second choice, and is working in finance at a firm in Austin.
Asked by a news reporter what harm she had suffered, she cited only her inability to tap into UT's alumni network and possibly missing out on a better first job. If she wins, Fisher seeks only the return of her application fee and housing deposit — a grand total of $100 in damages.
So while the Fisher case has been billed as a referendum on affirmative action, its backers have significantly grander ambitions: They seek to make the case a referendum on the14th Amendmentitself. At issue is whether the Constitution's equal protection clause, drafted by Congress during Reconstruction to ensure the rights of black Americans, also prohibits the use of race to help them overcome the nation's legacy of racism.
The Supreme Court has never ruled that the Constitution bars any and all laws and government programs that consider race. But Blum and his supporters, seeing an opening with the current Court, seek to overturn more than a century of precedent.
The true crux of the suit is not Fisher's failed application, but that government officials violate the constitutional rights of white Americans when they consider race in a way that might help African-Americans and Latinos.
"An argument can be made that it is simply impossible to tease out down to the last student who would have been admitted, and who would have not been admitted, had they been a different skin color," Blum said. "What we know is skin color is weighed and ethnicity is weighed by the University of Texas in their admissions process, and that alone is enough to strike down the plan."
Blum and his supporters say the reasoning is simple. The Constitution is colorblind and the equal protection clause of the 14th Amendment prohibits the government from treating people differently because of race.
It's an argument first successfully championed by the NAACP and other civil rights groups, most notably in the landmark Brown v. Board of Education case, in which the Supreme Court declared the notion of "separate but equal" to be a fallacy.
"In its history, colorblindness has this progressive, anti-racist push behind it," said Ian Haney-López, a constitutional scholar at the University of California, Berkeley School of Law.
But following the Brown decision, the very groups that had ardently — and violently — defended laws mandating separation by race used the notion of a colorblind Constitution to challenge court orders to integrate schools.
"They began to say, yes, the Constitution is colorblind, and so the state cannot distinguish between races when it tried to remedy segregation," he said.
As a result of Southern resistance, it would take six years after Brown before 6-year old Ruby Bridges, wearing crisp white socks and black-bowed shoes, became the first black student to attend a white elementary school in the South. The image of the diminutive brown-skinned girl who needed U.S. marshals to protect her from an angry white mob inspired Norman Rockwell to preserve the moment in a painting that now hangs in the White House occupied by the first black president.
Initially, the Supreme Court unambiguously knocked those arguments down. In a 1971 ruling, it said that government could not mandate colorblindness when doing so would defeat the integration requirement of Brown v. Board of Education. A few years later, in a ruling on affirmative action, Justice Harry Blackmun wrote, "In order to get beyond racism, we must first take race into account. There is no other way."
But as the Supreme Court's make-up has grown more conservative, it has taken up a steady stream of so-called reverse discrimination cases, in which white plaintiffs have argued that race-specific measures born of the civil rights movement discriminate against white Americans and violate the 14th Amendment.
Supreme Court decisions have eroded programs and laws that use race to remedy inequalities, but not eliminated them altogether. And in a 2003 opinion written by centrist Sandra Day O'Connor, the justices narrowly upheld affirmative action in college admissions when it is the only means to ensure diversity.
But the Court's make-up changed in what scholars consider a significant way when Samuel Alito, considered the third most conservative Supreme Court justice since 1937, replaced O'Connor in 2006. Since then, several justices have made their constitutional disdain for race-conscious programs known. In a controversial 2007 decision, Chief Justice John Roberts sent a clear message when he used the equal protection argument at play in Brown v. Board of Education to strike down voluntary desegregation plans in schools.
Evoking a colorblind Constitution, Roberts said, "The way to stop discriminating on the basis of race, is to stop discriminating on the basis of race."
And just last month during oral arguments over the constitutionality of a key aspect of the Voting Rights Act, Justice Antonin Scalia derisively called what's considered the most successful civil rights law in history a "racial entitlement."
Public opinion on race has changed over time as well. In the 1950s, surveys show, most white Americans believed that black Americans faced substantial discrimination but that they themselves experienced little. Today, despite gaping disparities between black and white Americans in income, education, health care, homeownership, employment and college admissions, a majority of white Americans now believe they are just as likely, or more likely, to face discrimination as black Americans.
Blum chose the University of Texas to mount what could be a decisive challenge to affirmative action in college admissions because it already had what was regarded as a "race-neutral" process — the Top 10 program. Since many Texas high schools remain segregated, taking the top 10 percent of students from black and Latino high schools ensured a substantial population of students of color at the UT.
As a consequence, Blum believed he could challenge whether the additional use of race to fill out the entering class passed constitutional muster.
To get standing in court, Blum needed a victim. That's when he started looking for a version of the Brown family, someone who could represent the arguable hurt caused when public officials used race.
This approach, too, mirrors an NAACP tactic from half a century ago. Then, knowing the Supreme Court was unlikely to throw out segregation in one fell swoop, the civil rights group brought a narrower challenge to segregated school facilities first.
One of those cases, ironically, targeted the same university as Blum — the University of Texas at Austin. The university, which had been closed to black students since its founding, denied the law school application of Heman Marion Sweatt because the state constitution required that black and white students attend separate schools.
Because Texas had no black law school, the NAACP sued, arguing that the state violated the constitutional mandate to provide equal facilities for black and white students. The Supreme Court ruled that the hastily put together black law school created to avoid admitting Sweatt could not possibly be equal. It ordered Texas to admit Sweatt as its first black student in 1950.
That suit launched the stone that would shatter separate but equal just four years later when the Court struck down segregation in schools in Brown.
Blum and his supporters hope to use the Fisher case, and the 14th Amendment challenge to the Voting Rights Act that Blum is also behind, in the same way.
According to Blum, the Constitution sees affirmative action policies — in college, in contracting, in employment — and Jim Crow laws as twin evils.
"I don't see the distinction," he said.
But several constitutional scholars interviewed for this piece dispute this notion. Neil Siegel of Duke University called this interpretation of the 14th Amendment "perverse." Georgetown law professor Girardeau A. Spann called it "discriminatory."
While the 14th Amendment doesn't mention race, the drafters went on to pass race-specific legislation aimed at helping former slaves and other black Americans overcome more than a century of racial oppression.
Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, said that the concept of colorblindness holds great rhetorical appeal but that "there is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness." In drafting the 14th Amendment, he said, Congress recognized "an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination."
Conservatives challenging these types of programs purport to champion the legacy of the civil rights movement, Haney-Lopez said, but the historical roots of their efforts are much more cynical.
"I think that is incredibly important that people realize that today's proponents of colorblindness pretend that they are the heirs to Thurgood Marshall and John Marshall Harlan," he said. "But that is a lie. They are the heirs of Southern resistance to integration. And the colorblindness arguments that they use come directly from the Southern efforts to defeat Brown v. Board of Education."
Ilya Shapiro, a senior constitutional studies fellow at the Cato Institute, which filed an amicus brief supporting Fisher, thinks otherwise.
"I am not going to speak to anyone else's motives. It is unfair to paint people with the Jim Crow brush because they have those kinds of arguments," he said. "I don't like people being judged based on the color of their skin." If a program "treats people different because one has a different skin color, I find that offensive and I think the Constitution does as well."
But when asked why the drafters created programs targeted to black Americans if they did not intend the Constitution to allow the government to use race to help minority groups, Shapiro said, "It was a curious period."
At the same time Congress drafted the equal protection clause, he said, it also "voted for segregated schools in the District of Columbia."
That example is the very same one that segregationists Strom Thurmond and Richard Brevard Russell used when they drafted the 1956 Southern Manifesto urging officials to resist the Supreme Court's use of the equal protection clause to overturn school segregation.
The impact of a ruling that bans all racial considerations by universities, employers and governments "could have devastating impact on the ability to overcome past inequalities," Siegel said.
Few experts think Blum and his supporters are apt to win that big a victory in the Fisher case. And so he will likely be on the hunt again for another case, and another perfect plaintiff.
Nikole Hannah-Jones covered civil rights and fair housing for ProPublica. Previously, she covered governmental issues, the census, and race and ethnicity at The Oregonian.
- Nikole.Hannah-Jones@propublica.org
- @nhannahjones
===
===
Move to Amend Ohio’s Quarterly Statewide Gathering (Virtual Event)
Guest Speakers
Cynthia Brown, DeEscalate Ohio Now Coordinator
Charles Peterson, Chair of Africana Studies, Oberlin College
Professor Charles Peterson will interrogate the post-Civil War’s Fourteenth Amendment, from its lofty promises of full citizenship and “equal protection of the laws” for all Americans to its hijacking by powerful interests. Providing current context of what this means for Ohioans today, Cynthia Brown, Ohio’s leading advocate for the state’s Repeal Qualified Immunity campaign, will discuss the doctrine that perversely grants immunity to officials who violate citizens’ rights, including those guaranteed by the Fourteenth Amendment.
Background: Within twenty years of the Fourteenth Amendment’s ratification in 1868, Big Money successfully claimed that corporations are people (“constitutional persons”) that likewise deserved constitutional “We the People” rights. Since then, successive Supreme Court rulings have granted corporations other U.S. Constitution rights, all based on the Fourteenth Amendment. This important session will illustrate how powerful forces have subverted its guarantees of full citizenship for emancipated black people to instead legitimize laws that put property rights over black lives.
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https://www.kqed.org/forum https://www.kqed.org/forum/2010101887335/reparations-task-force-sheds-light-on-history-of-slavery-in-california**
Perkins case --> dred scot?!14 and 15 not ratif in ca till 1950's CRM?!
Conversations about the history of slavery are often confined to the North and the South, with the West viewed as a free “promised land.” But California passed laws, like the Fugitive Slave Act of 1852, that reinforced the institution of slavery, and otherwise allowed coerced, unpaid labor in the state. And the laws impacted more than just Black people, too. Historian Stacey L. Smith writes in her book “Freedom’s Frontier” that “ diverse forms of American Indian servitude, sexual trafficking in bound women, and contract labor involving Latin Americans, Asians, and Pacific Islanders all kept the slavery question alive in California during the 1850s.” This history has been brought to the fore in recent weeks as the state’s Reparations Task Force continues to hear testimony about the impacts of slavery on African Americans. We take a closer look at this part of California’s past and why it matters.
Guests:
Stacey L. Smith, associate professor of history, Oregon State University; author, "Freedom's Frontier: California and the Struggle over Unfree Labor, Emancipation, and Reconstruction"
Taylor Bythewood-Porter, assistant curator of history, California African American Museum; co-curated the 2018 exhibition "California Bound: Slavery on the New Frontier, 1848-1865"
==
history.com
How the 14th Amendment Made Corporations Into 'People'
Under U.S. law, some essential rights of the 14th amendment belong not only to American citizens, but also corporations—thanks to a few key Supreme Court cases and a controversial legal concept known as corporate personhood.
Originally adopted after the Civil War to protect the rights of formerly enslaved people, the 14th Amendment has exponentially expanded the protection of civil rights for all Americans over the past 150 years. It’s been cited in more litigation than any other amendment to the U.S. Constitution, and has been at the center of many of the most famous Supreme Court decisions, including school desegregation (Brown v. Board of Education), abortion (Roe v. Wade) and same-sex marriage (Obergefell v. Hodges).
Under U.S. law, these essential rights belong not only to American citizens, but also corporations—thanks to a few key Supreme Court cases and a controversial legal concept known as corporate personhood.
So, what is the 14th Amendment again?
Ratified in 1868, it was one of three amendments to the U.S. Constitution designed to grant full citizenship rights to formerly enslaved people. While the 13th and 15th Amendments were relatively limited in scope—the first abolished slavery and the second granted voting rights to black men—the 14th Amendment exponentially expanded the protection of civil rights for all Americans.
The two most important provisions of the 14th Amendment guarantee that states, like the federal government, cannot “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.”
What is due process and how does it work?
The fundamental principle of due process goes back to the Magna Carta, the 13th century English charter that inspired the framers of the U.S. Constitution. Due process ensures that all levels of government operate within the law and provide fair procedures for everyone. In practice, the Supreme Court has used the Due Process Clause of the 14th Amendment to guarantee some of the most fundamental rights and liberties we enjoy today. It protects individuals (or corporations) from infringement by the states as well as the federal government.
In Griswold v. Connecticut (1965), the Supreme Court ruled that a state ban on the use of contraceptives violated a couple’s right to marital privacy, which according to the Court was an essential liberty protected under the 14th Amendment’s Due Process Clause. The ruling famously drew that right to privacy from the “penumbras” (or shadowy zones) cast by other specific guarantees in the Bill of Rights, including free speech (First Amendment), freedom from forced quartering of troops (Third Amendment), unreasonable searches and seizures (Fourth Amendment), forced self-incrimination (Fifth Amendment) and other unenumerated rights (Ninth Amendment).
Later verdicts would expand this right to privacy, including Roe v. Wade (1973), when the Court found that a woman’s right to an abortion fell within the zone of privacy protected under the 14th Amendment.
===
https://theintercept.com/2020/09/23/facebook-sued-over-kenosha-killings/
WHEN 17-YEAR-OLD Kyle Rittenhouse killed two Black Lives Matter protesters (and wounded a third) in late August in Kenosha, Wisconsin, he instantly became a hero among white nationalist circles, in which theSecond Amendment is sacrosanct.
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On Wednesday, Rittenhouse and the members of the armed militias that supported him, including the Kenosha Guard and Boogaloo Bois, were named in a federal lawsuit brought under the post-Civil War Reconstruction amendments that aimed to establish Black equality.
The suit also names what it alleges was the militia groups’s most prominent enabler: Facebook. All of the parties, the complaint contends, helped deprive Kenosha Black Lives Matter protesters of their First Amendment right to assemble, thus violating the Black Lives Matter activists’ 14th Amendment right to equal protection.
attorneys Jason Flores-Williams and Jennifer Sirrine filed the case in the Eastern District Court of Wisconsin, which covers Kenosha. Along with a handful of protesters harassed by the militia groups, the plaintiffs include Hannah Giddings, the life partner of 26-year-old Anthony Huber, who was gunned down by Rittenhouse while trying to disarm the teenager.
According to the complaint, the Kenosha Guard, Boogaloo Bois, and Facebook all partook in a conspiracy that resulted in Huber’s death (thus causing harm to Giddings) and deprived the other plaintiffs of their ability to peacefully protest.
Both the First and 13th amendment stipulations were key to Griffin v. Breckenridge, a U.S. Supreme Court case that was decided in 1971 and is cited in the complaint. That case concerned the right to travel, which is also an issue in the Kenosha protests. Some of the plaintiffs had their tires slashed and were otherwise impeded.
The 14th Amendment provided the constitutional basis for federal statutes §1985 and §1986, which prohibit interference by private groups with other’s exercise of their rights. Established under the Ku Klux Klan Act of 1871, the statutes were recently applied in the aftermath of the Charlottesville, Virginia, white supremacist protest in 2017.
In order to recruit foot soldiers for the August 25 protest, the Kenosha Guard created an event page on its Facebook account. Titled “Armed Citizens to Protect Our Lives and Property,” the posting summoned “patriots willing to take up arms … and defend our City from the evil thugs.”
Over 450 Facebook users alerted the platform’s moderators that the Guard’s violent rhetoric violated the company’s policies. According to BuzzFeed News, four Facebook moderators deemed the Guard’s posts “non-threatening.”
In Flores-Williams’s view, Facebook’s actions subsequent to the event — shutting down the Guard’s account and admitting to what CEO Mark Zuckerberg called an “operational mistake” in not heeding the 450 warnings — amounted to a recognition it behaved with negligence.
“Facebook’s negligence enabled the conspiracy here,” said Flores-Williams. He maintains that “this is not a First Amendment issue. It’s a matter of responsibility on the part of Facebook.”
“I would love to see Facebook change their moderation policies and for them to take accountability. One way to do that would be for them to make the moderators work directly for the company instead of outsourcing them,” added Sirrine.
Citing the likelihood of voter intimidation by armed militias on Election Day, and the possibility that those same groups may try to keep Donald Trump in the White House should he lose in November, Flores-Williams hopes that the action in federal court will send the company a message.
“If Facebook won’t change their M.O.,” he said, “then a judge needs to tell them to enforce their own standards and stop allowing violent groups to use their site as a recruiting station.”
A Facebook spokesperson didn’t immediately respond to a request for comment.
==
re clements, who ref
http://blogs.reuters.com/great-debate/2014/10/06/the-fight-for-living-wages-is-for-workers-not-corporations/
ron fein oct 2014
ndustry trade groups are now challenging Seattle’s new minimum wage law as unconstitutional. They claim the city’s $15 an hour rate violates the 14th Amendment. Passed just after the Civil War to ensure equal rights for the newly freed slaves, that amendment says no state may “deny to any person . . . the equal protection of the laws.”
According to the industry lawsuit, the minimum wage law violates this Equal Protection Clause because it phases in the higher wage at a different schedule for franchised companies than for small local businesses.
But the trade groups’ argument twists the real intent of the 14th Amendment. Its drafters had a special interest in whether workers could earn “fair, living wages,” our research has revealed. That phrase was often used by Senator Jacob Howard, a staunch Republican who served as the 14th Amendment’s Senate floor manager in 1866.
During congressional hearings, Howard repeatedly asked witnesses whether employers were paying the newly freed slaves “fair, living wages.”
Howard had reason to emphasize this point. Even before the Civil War ended, the Union Army was deeply concerned about whether freedmen were receiving fair wages. An 1865 Army work plan, for example, instructed officers to assist freedmen in obtaining “fair wages for their labor.”
Sometimes it was a struggle to achieve this. When employers in two recalcitrant South Carolina counties persisted in underpaying the freedmen, one Army general contemplated moving those counties’ entire freed population to areas that would pay them “fair wages.” By 1866, a special military unit established to assist freedmen during the post-Civil War Reconstruction had resorted to distributing standard labor contracts, with fixed labor rates, that would promote “prosperous relations between capital and labor” and be “satisfactory to the freedmen.”
Many Americans viewed “fair, living wages” as an integral part of the struggle from slavery to full citizenship. The influential abolitionist editor Horace Greeley — famous for his 1865 editorial that advised “Go West, young man” — wrote a widely reprinted open letter to “the Colored People of North Carolina” on September 14, 1865. He urged them to take immediate steps to demand “fair, living wages” as part of their larger struggle for equal rights.
So when members of the special congressional committee asked whether freedmen could earn fair or living wages, they understood the issue as intimately connected with the equality that the 14th Amendment ultimately enshrined.
That wasn’t the only concern behind the 14th Amendment, of course. But, unlike protection of the economic advantages that franchised businesses have over small local businesses, it was part of the 14th Amendment’s overall goals.
Given how important obtaining “fair, living wages” was to the 14th Amendment’s authors, industry lawyers have no basis to argue that the Equal Protection Clause protects the companies, rather than the workers. But it’s not surprising. Ever since the 14th Amendment was passed, corporate lawyers have tried to leverage it to strike down laws like Seattle’s.
In 1938, a frustrated Supreme Court justice complained that of the cases in the court in which the 14th Amendment was applied during the first 50 years after its adoption, “less than one-half of 1 percent invoked it in protection of the negro race, and more than 50 percent asked that its benefits be extended to corporations.”
Just this year, the Equal Protection Clause has been invoked on behalf of coal companies and multinational agribusiness conglomerates.
We need to put a stop to this unfounded constitutional argument. The businesses had their opportunity to make their case to the city of Seattle — and they lost. They shouldn’t be allowed to run to court under the banner of the 14th Amendment.
When Abraham Lincoln was just a rookie congressman, he wrote that securing “to each laborer the whole product of his labor, or as nearly as possible, is a most worthy object of any good government.” That’s what Seattle’s law does. Sixteen years after Lincoln wrote that, he vowed at Gettysburg to preserve a “government of the people, by the people, [and] for the people.” That’s what the industry’s lawsuit threatens.
The congressmen of Reconstruction sought to carry forward Lincoln’s legacy with the 14th Amendment. Their vision of full equality is not yet realized. But if they could see what Seattle is trying to achieve, they would be proud.
===
==
no lnx
Did Lindsey Graham just violate the 14th Amendment during an appearance on Fox News?
U.S. Sen. Lindsey Graham of South Carolina
Written by Matthew Chapman / Raw Story April 10, 2020
On Fox News Thursday in discussion with Sean Hannity, Sen. Lindsey Graham (R-SC) made an extraordinary statement: That he wants the United States to “cancel” some of the national debt held by the Chinese government as punishment for allowing the coronavirus to spread beyond its borders.
“I want to get the medical supply chain back in the United States, and I want to start canceling some debt that we owe to China, because they should be paying us, not us paying China,” said Graham. “So I think you’re going to see a bipartisan pushback against China to punish them so severely to deter them in the future.”
Putting aside the thorny legal question of whether a foreign country can be legally held at fault for the spread of a deadly disease, there is a big problem with what Graham is proposing: the 14th Amendment.
The amendment, one of the three “Reconstruction Amendments” passed in the wake of the Civil War, contained a clause at the end that was designed to prevent Southern politicians — who historically wielded outsized power in Congress — from canceling the U.S. war debt, which could have shielded the white landowners who led the war effort from having to pay taxes: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”
At a bare minimum, this amendment would appear to make it unconstitutional to “cancel” Treasury bonds held by the Chinese government or businesses. But it might go even further than that — some have interpreted the phrase “shall not be questioned” more literally, to mean that public officials are bound not to say anything that would make creditors “question” the validity of the public debt. If that is the case, then Graham would have violated the Constitution simply by saying he wants debt held by China to be canceled.
Either way, far from the “bipartisan pushback” Graham is predicting, his idea will go nowhere.
Watch below:
Acyn Torabi
@Acyn
Lindsey Graham says he’s going to push to cancel some of the US debt to China
Embedded video
==
Ron Fein 4/15 good
Hi - pleased to hear from you, and keep up the good work.
Our co-founder, Jeff Clements, speaks widely on this, but he was just in SF in February: https://acslaw.secure.force.com/rsvp?id=a0YG0000007sL3zMAE**
I don’t have any plans to be in the Bay Area anytime soon, but I’ll see if I can think of anyone who’s local there who might be good. I’m not sure about Steve Mayer - you’re welcome to try, but the nature of his involvement in the Prop 49 brief was limited to the question of whether ballot measures can contain advisory questions, not the topic of corporate constitutional rights. I honestly have no idea what his thoughts are on that.
In the meantime, just tell these lawyers “associational standing - see NAACP v. Alabama ex rel Patterson.” It’s a decision from before the widespread expansion of corporate constitutional rights that’s strikingly similar to the Planned Parenthood hypo. The Supreme Court held that the NAACP couldn’t raise any constitutional claims of its own against the state’s demand for its membership lists, but it could assert claims on behalf of its members, whose freedom of association was jeopardized by the state’s order. This logic wouldn’t apply to most for-profit corporations: Exxon shareholders aren’t “associating” when they buy Exxon stock.
april 23
==
https://en.wikipedia.org/wiki/NAACP_v._Alabama
National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958), was an important civil rights case brought before the United States Supreme Court.
Alabama sought to prevent the NAACP from conducting further business in the state. After the circuit court issued a restraining order, the state issued a subpoena for various records, including the NAACP's membership lists. The Supreme Court ruled that Alabama's demand for the lists had violated the right of due process guaranteed by the Fourteenth Amendment to the United States Constitution.
1 Facts
2 Judgment
3 See also
4 References
5 External links
Facts
In 1956, the Attorney General of Alabama, John Patterson, brought a suit to the State Circuit Court of Montgomery, Alabama, challenging the National Association for the Advancement of Colored People (NAACP) for violation of a state statute requiring foreign corporations to qualify before doing business in the state. The NAACP, a nonprofit membership corporation based in New York, had not complied with the statute, as it believed it was exempt. The state suit sought both to prevent the Association from conducting further business within the state and, indeed, to remove it from the state.
Referring to the Association's involvement with the Montgomery Bus Boycott in 1955 and its role in funding and providing legal assistance to black students' seeking admission to the state university, the suit charged that the Association was ". . . causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama for which criminal prosecution and civil actions at law afford no adequate relief . . . ." On the day this suit was filed, the circuit court agreed to issue an ex parte order restraining the Association from conducting business in the state or taking steps to qualify it to do so.
The Association, represented throughout by Robert L. Carter of the NAACP Legal Defense Fund, responded by moving to dissolve the order on the grounds that its activities within the state did not require its qualification under the statute and that the state's suit was intended to violate its rights to freedom of speech and of assembly as guaranteed by the Constitution of the United States. Before a hearing date was set, the state issued a subpoena for much of the Association's records, including bank statements and leases, but most notably the names and addresses of the "agents" or "members" of the Association in Alabama.
...
Judgment
In an opinion delivered by Justice John Marshall Harlan II, the Supreme Court decided in favor of the petitioners, holding that "Immunity from state scrutiny of petitioner's membership lists is here so related to the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment" and, further, that freedom to associate with organizations dedicated to the "advancement of beliefs and ideas" is an inseparable part of the Due Process Clause of the Fourteenth Amendment. The action of the state's obtaining the names of the Association's membership would likely interfere with the free association of its members, so the state's interest in obtaining the records was superseded by the constitutional rights of the petitioners.[1] Harlan said the following.
==
http://www.nyujlpp.org/wp-content/uploads/2013/01/Magpantay-Associational-Rights-and-Standing.pdf
ASSOCIATIONS IN THE COURTS: USES OF AND LIMITATIONS ON THE RIGHT TO PETITION FOR REDRESS
“Americans of all ages, all stations of life, and all types of disposition . . . are forever forming associations.”32
Specifically, Americans often form and enter into associations that advocate for their collective interest in matters of fundamental public importance. Civil rights organizations such as the NAACP, or environmental organizations such as the Sierra Club are classic examples.33 The Supreme Court has recognized that organizations should be allowed to litigate claims on behalf of their members.34
Specifically, the Court has stated that “[t]he only practical judicial policy when people pool their capital, their interests, or their activities under a name and form that will identify collective interests, often is to permit the association or corporation in a single case to vindicate the interests of all.”35
Moreover, allowing associations to litigate collectively held interests is practically beneficial not only to members of organizations, but to the court system as well.36 Associations have the capacity to “draw upon a pre-existing reservoir of expertise and capital”37 and their access to “specialized expertise and research resources”38 may help “sharpen[ ] the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.”39
Nevertheless, Article III of the Constitution only permits federal courts to hear actual “cases” and “controversies,”40 and the party seeking a federal forum for the adjudication of its claim has the burden of proving that it has the requisite standing to sue.41 In order to demonstrate standing, a plaintiff must show: (1) that he or she has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that it is likely, as opposed to merely speculative, that the injury would be redressed by a favorable decision.42
Once standing is shown, a plaintiff may pursue her action in federal court.43 This legal test works well for determining standing in private litigation, but can present difficulties when organizational plaintiffs sue to defend public rights.44 Indeed, “Although courts acknowledge the existence and advantages of association” there is “tension in the judicial system between acknowledging these benefits and sticking to an atomistic model of interest [that] manifests itself in inconsistent grants of associational standing.”45 This Part expl
{{notes: 32. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 513 (J.P. Mayer ed., George Lawrence trans., Anchor Books 1969) (1840). 33. See Our Mission, NAACP, http://www.naacp.org/pages/our-mission (last visited Oct. 18, 2012) (“The mission of the National Association for the Advancement of Colored People is to ensure the political, social, and economic equality of rights of all persons and to eliminate race-based discrimination.”); see also Sierra Club Policies, SIERRA CLUB, http://www.sierraclub.org/policy/ (last visited Oct. 18, 2012) (declaring, in pertinent part, a mission to “educate and enlist humanity to protect and restore the quality of the natural and human environment; and to use all lawful means to carry out these objectives”). 34. Karl S. Coplan, Is Voting Necessary? Organizational Standing and Non-Voting Members of Environmental Advocacy Organizations, 14 SOUTHEASTERN ENVTL. L.J. 47, 48–49 (2005) (citing Sierra Club v. Morton, 401 U.S. 727 (1972)) [hereinafter Is Voting Necessary?]. 35. UAW v. Brock, 477 U.S. 274, 290 (1986) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 187 (1951) (Jackson, J., concurring)); see also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) (stating that an association “is but the medium through which its individual members seek to make more effective the expression of their views”). 36. UAW v. Brock, 477 U.S. 274, 289 (1986).
==
AirB&B 14th?
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https://ratical.org/corporations/Dartmouth.html
You've Heard of Santa Clara, Now Meet Dartmouth
by Peter Kellman
By What Authority (Vol. 2, No. 2 - Spring 2000)
from the PROGRAM ON CORPORATIONS, LAW & DEMOCRACY
The purpose of this article is to introduce our readers to a key Supreme Court case from a working class historical perspective. The Dartmouth College case wrote into the Constitution the propertied class's vehicle, the corporation, for concentrating economic and political power. Since few people today examine the Court's actual decisions (which we will do in future BWAs), what counts is how Supreme Courts that followed Chief Justice Marshall's Court of 1819 interpreted Marshall, and Justice Story's supporting opinion, to foster powerful anti-democratic realities:
gifts of special privilege for the rich to organize their own economic and political institutions, fostered and protected by "the entire strength of the nation;"
denials of common people's fundamental right and power to organize their institutions.
WE HAVE A GREAT SYSTEM of government. Amending the Constitution is a very different process for wealthy citizens as opposed to the majority of us. If the common people want to change the US Constitution we lobby Congress and get two-thirds of both houses to propose an amendment which must then be approved by three-quarters of the state legislatures. Interestingly, freedom of speech, freedom of the press, freedom from unreasonable search and seizure, the right to a speedy trial, trial by jury, the ending of slavery, the right to vote, and the requirement that US Senators be elected by the people rather than appointed by state legislatures all came into being through the amendment process.
The wealthy group of white men who gathered in a closed meeting in 1787 to write our Constitution didn't think any of these rights were important enough to be included. It was left to Antifederalists and mass movements of African Americans, Populists, workers and women -- mass movements of the people -- to amend the constitution in ways they hoped would protect the majority of people from a wealthy minority.
There are four ways to change the Constitution: first is by revolution; a second was mentioned above; the third is through a Constitutional convention which can be called by two-thirds of the states; and the fourth is by a process called judge-made law.
A good example of judge-made law is the Santa Clara case of 1886, in which the Supreme Court ruled that a corporation is a person under the law and is therefore entitled to equal protection under the Fourteenth Amendment. [1]
An earlier example of judge-made law is the Dartmouth College case of 1819. [2] The word corporation is not mentioned in the Constitution or in any of its 27 amendments. However, Article 1, Section 10 of the US Constitution, known as the Contracts Clause, declares that no state shall make any "Law impairing the Obligation of Contracts . . ." Chief Justice Marshall, writing for the majority in the Dartmouth case, stated in reference to the corporate status of the college that; "The Opinion of the Court, after mature deliberation, is, that this is a contract, the obligation of which cannot be impaired, without violating the Constitution of the United States." That is, a corporation is a contract and therefore is protected by the Constitution.
BUT THERE IS MORE TO THE STORY, a story which laid the legal groundwork for the growth of corporate power at the expense of public education and with it the future of our democracy.
In 1816, a class of small property owners and skilled artisans, who believed in the vision of Thomas Jefferson and many other founding revolutionaries that the United States should have a republican form of government, elected a like-minded governor in the State of New Hampshire. Now the basis of Jeffersonian republicanism rests on a society primarily composed of small farmers who own their own land. An important component of republican philosophy is that a republican form of government requires an educated populace. These republicans wanted to insure that a college education would be available for their children and that the content of education would be determined by a public process, not a private one.
However, colleges during that period were mainly private schools such as Yale, Harvard and Dartmouth, holdovers from the colonial days. These schools were linked to the past by class and religion. They were, by design, not republican in nature. Their purpose was to perpetuate the monarchy and class structure of the British Empire, impose Christianity on Native populations, train local clergy to keep the new converts in line, and educate the children of the elite.
Dartmouth College had been chartered by the King of England in 1769 as an Indian Charity School "with a view to spreading the knowledge of the great Redeemer among their savage tribes." [3] It soon evolved into a school "to promote learning among the English, and be a means to supply a great number of churches . . . with a learned and orthodox ministry." [4]
After the defeat of the British, American revolutionaries and Jeffersonian republicans led a movement to turn the colonial colleges into public schools. For example, the Colony of Pennsylvania had granted a charter to the University of Pennsylvania in 1755, under which the university would be run by a self-perpetuating board, similar to the Dartmouth College board. Following the revolution in 1779 the legislature revoked the charter of the private University of Pennsylvania and in its place established the public University of the State of Pennsylvania.
In New Hampshire the newly elected Governor William Plumer, an ally of Thomas Jefferson, introduced "An Act To Amend The Charter And Enlarge And Improve The Corporation of Dartmouth College." The text of the law, passed on June 27, 1816, begins:
"Whereas knowledge and learning generally diffused through a Community are essential to the preservation of free Government, . . . extending the opportunities and advantages of education is highly conducive to promote this end . . ."
The legislature made private Dartmouth College into public Dartmouth University and ordered the new university to set up public colleges around the state.
Governor Plumer promoted the change, arguing that the original provisions of Dartmouth College "emanated from royalty and contained principles . . . hostile to the spirit and genius of free government." [5] However, the trustees of Dartmouth objected to the charter change and took the state to court.
The New Hampshire Supreme Court ruled that the legislature had the authority to change the charter of the college,
"because it is a matter of too great moment, too intimately connected with the public welfare and prosperity, to be thus entrusted in the hands of a few. The education of the rising generation is a matter of the highest public concern, and is worthy of the best attention of every legislature." [6]
The decision was appealed to the US Supreme Court, which reversed the state court. As a result, the corporate form was given Constitutional protection and the formation of public colleges in the United States was halted for 50 years.
THE US SUPREME COURT was not interested in education. The Court was set up to be the final protector of a propertied class. Think of it from a working class perspective. A group of wealthy white men goes behind closed doors for a couple of months and comes up with a form of government to protect and promote whom? The people they fear most: slaves, women, indentured servants, Native people and people with little or no property? Not likely.
The founders set up a government with a legislature composed of two bodies: the House of Representatives, elected by the people (the people at that time being, for the most part, white men who owned property), and the Senate with members appointed by state legislatures. So, if the "people's house" passed legislation that benefited the common people at the expense of the ruling elite, it could be prevented from becoming law by the Senate. And, should legislation promoting the interests of the majority over the interests of the wealthy minority be passed in both House and Senate, there was a president elected by an electoral college, not directly by the people, who could veto the legislation. If all this failed, and the House, Senate and president or a state legislature passed laws detrimental to the ruling elite, the case against that legislation could be taken to the Supreme Court. The justices of this court are lawyers appointed for life, lawyers who, for the most part, had distinguished careers representing the wealthy.
Imagine how the Supreme Court would have ruled in Dartmouth if it were composed of shop stewards, teachers, homemakers and librarians. But it wasn't. The Supreme Court delivered for the ruling elite, arguing that a corporation is a private contract not a public law. The Court decreed that although the state creates the corporation when it issues a charter, it is not sovereign over that charter but is simply a party to the contract. All of which means that the corporation is protected from state interference by the Contracts Clause of the Constitution because the relationship is a private not a public one. And so Dartmouth University, a public school, once again became private. The republican notion that "We the People" required an education in order to have a truly republican form of government was defeated, at least temporarily.
TEN YEARS LATER, Pennsylvania workers declared:
"Let the productive classes, then, unite for the preservation of their free institutions, and by procuring for all the children in the Commonwealth Republican Education, . . . Our government is republican; our education should be equally so." [7]
Public education and the ten-hour day were the two goals of the labor movement in the 1830s. These two demands, made by working people, brought to the fore a question we should be asking today: if we have to spend all our hours working to make ends meet, when will we do the work of self-governance?
In 1886 the US Supreme Court ruled in the Santa Clara v. Southern Pacific Railroad case that corporations are persons under the law and are therefore entitled to equal protection under the 14th Amendment to the Constitution. This meant that corporate activity to protect and promote the interests of a wealthy minority was protected activity. This is significant because in 1886, women, Native Americans and, once again, most African Americans were denied the right to vote and equal protection of the law.
If there remains any question in your mind as to the role the Courts have played in advancing the preeminence of the Constitutional rights of a propertied class over the human rights of everyone else, consider the following:
The 14th Amendment specifies, "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 any person within its jurisdiction the equal protection of the laws." This amendment was added to the Constitution in 1868 to protect freed slaves, but as Supreme Court Justice Hugo Black pointed out, "Of the cases in this court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of one percent invoked it in protection of the Negro race, and more than fifty percent asked that its benefits be extended to corporations." For Black, this was undeniable evidence that "the judicial inclusion of the word `corporation' in the Fourteenth Amendment has had a revolutionary effect on our form of government." [8]
In Minor v. Happersett (1975), the women of Ohio argued that under the Fourteenth Amendment's protection of due process, the US Constitution established that their right to vote could not be denied by the state. [9] The US Supreme Court rejected that argument. Women received Constitutional protection for the right to vote 48 years later when a people's movement for equal rights was instrumental in the enactment of the 19th Amendment to the Constitution in 1920. It established that the right to vote could not be denied on the basis of sex and that the Congress had the power to enforce the amendment by passing appropriate legislation.
While the courts were extending "rights" to corporate "persons" and denying them to women, they had, by 1920, struck down roughly 300 labor laws, laws that were passed by state legislatures for an eight-hour day, laws against requiring people to work on Sunday, and laws against the payment of wages in company scrip.
More than 1800 injunctions against labor strikes were issued by the Courts between 1880 and 1931. [10] An injunction is a judge's order prohibiting a party from a specific course of action. In the labor cases referred to here, it usually meant that workers would break an injunction if they went on strike. Many labor people at the time considered injunctions against striking to be a violation of the 13th Amendment to the US Constitution which states, "Neither slavery nor involuntary servitude . . . shall exist within the United States . . ."
Of the 118 labor injunctions "heard" in Federal courts between 1901 and 1928, 70 of them were issued ex parte, i.e., without hearing the defendants, never notified of the hearing process. [11] Of course, all defendants in these cases were labor unions, union officials, and union members.
The Dartmouth College case put the corporation on the legal map. Subsequent Supreme Court decisions protected and promoted "rights" for the institutions of the rich and consistently suppressed the rights of all other people, including the right to vote, the right to organize their institutions, and the right to work no more than eight hours a day. So which class had a head start? Why should inequalities today be a surprise?
A future issue of By What Authority will take on later critiques of the Dartmouth case. For those of you who can't wait, go to the nearest law library and dig out The Bank of Toledo v. The City of Toledo and John R. Bond (1853) -- 1 Ohio St. 622. In this case the Ohio Supreme Court took on the Dartmouth decision and how it was interpreted, finding both the decision and its interpretations wanting. This case is a must read for anyone who wants to challenge the legal concept of the corporation.
Endnotes
Santa Clara County V. Southern Pacific Railroad (1886), 118 U.S. 394.
The Board of Trustees of Dartmouth College v. Woodward (1819), 17 U.S. 518.
Elsie W. Clews, Education, Legislation and Administration of the Colonial Governments, New York: Macmillan Company, 1899, p. 171.
Clews, p. 173.
Governor Plumer's message to the New Hampshire legislature, June 6, 1816.
Reports of Cases Argued and Determined in the Superior Court of Judicature, State of New Hampshire, 1816-1819, p. 135.
"Circular to the Working Men of the City and County of Philadelphia," issued by the Working Men's Republican Association of the Northern Liberties, Mechanics' Free Press, April 17, 1830.
Connecticut General Life Insurance Company V. Johnson, Treasurer of California (1938), 303 U.S. 77.
Minor V. Happersett (1875), 88 U.S. 162.
For a listing of the court cases and statistics on labor injunctions, see William E. Forbath, Law and the Shaping of the American Labor Movement, Harvard University Press, 1991, Appendix A & B.
Leon Fink, from the article "Labor, Liberty and the Law: Trade Unionism and the Problem of the American Constitutional Order," Journal of American History, 74 (December, 1987), pp. 904-25.
Copyright © 2000 by Peter Kellman
Reprinted for Fair Use Only.
By What Authority, the name of our publication, is English for quo warranto. Quo warranto is the sovereign's command to halt continuing exercise of illegitimate privileges and authority. Evolved over the last millennium by people organizing to perfect a fair and just common law tradition, the spirit of By What Authority animates people's movements today.
We the people and our federal and state officials have long been giving giant business corporations illegitimate authority. As a result, a minority directing giant corporations privileged by illegitimate authority and backed by police, courts and the military, define the public good, deny people our human and constitutional rights, dictate to our communities, and govern the Earth. By What Authority is an unabashed assertion of the right of the sovereign people to govern themselves. A publication of the Program on Corporations, Law and Democracy.
POCLAD is a project of the nonprofit Council on International and Public Affairs.
no lnx
https://ccrjustice.org/home/what-we-do/our-cases/al-aulaqi-v-panetta
Al-Aulaqi v. Panetta Historic Case
At a Glance
Date Filed:
July 18, 2012
Current Status
The case was dismissed on April 4, 2014, and the families made the decision not to appeal.
Counsel:
Pardiss Kebriaei
Maria LaHood
Co-Counsel
The American Civil Liberties Union
Client(s)
Nasser Al-Aulaqi, father of Anwar and grandfather of Abdulrahman Al-Aulaqi, and Sarah Khan, mother of Samir Khan
The bigger picture
Drone Killings
Al-Aulaqi v. Panetta is a case challenging the drone killings by the United States of three U.S. citizens in Yemen. In 2010, after reports that Anwar Al-Aulaqi had been placed on CIA and military “kill lists,” the Center for Constitutional Rights and the American Civil Liberties Union filed suit on behalf of his father, Nasser Al-Aulaqi, challenging the government’s authorization for his son’s killing. That case was dismissed by a district court. On September 30, 2011, U.S. drone strikes killed Anwar Al-Aulaqi, along with Samir Khan and two other men.
Two weeks later, the U.S. launched another drone strike at an open-air restaurant in Yemen, killing Anwar Al-Aulaqi’s 16-year-old son, Abdulrahman, and six others, including Abdulrahman’s teenage cousin. CCR and the ACLU filed a second case charging that these killings, undertaken without due process, in circumstances where lethal force was not a last resort to address a specific and imminent threat and where the government failed to take required measures to protect bystanders, violated the deceased Americans’ fundamental rights under the Constitution. This case is part of CCR’s work challenging unlawful drone killings by the United States and other rights violations being committed in the name of national security.
Defendants were former Defense Secretary and CIA Director Leon C. Panetta, former Commander of the U.S. Special Operations Command William H. McRaven, former Commander of the Joint Special Operations Command Joseph Votel, and former CIA Director David Petraeus.
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winkler
https://kpfa.org/episode/letters-and-politics-may-16-2018/
--> brown v, lgbt
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A growing number of constitutional challenges to reasonable regulations
In recent years, large corporations have been emboldened to argue that corporate speech rights entitle them to strike down state health care prescription information laws — those forbidding pharmaceutical companies from selling information about the prescribing patterns of individual doctors, for example. They have argued that speech rights forbid certain securities regulations — specifically, those requiring investigation and disclosure of whether a company sells “conflict minerals” from the Democratic Republic of Congo. They have said that the First Amendment gives them a right to decline to say on product labels that the meat they sell comes from foreign countries, or that food products contain genetically modified ingredients.
In a related egregious constitutional expansion, corporations have even attacked minimum wage laws as violating their rights under the 14th Amendment’s equal protection clause — when, as is typical, such laws treat firms differently based on size (or form of organization). The corporate misuse of the First Amendment and the Constitution more broadly, has gone viral. It now might be considered corporate legal malpractice not to take a swing at challenging, on constitutional grounds, any law that gets in the way of the largest corporate profits.
Investigations by public agents, including attorneys general, are a necessary component of law enforcement. Efforts by public agents to ascertain facts in such investigations should not create constitutional controversy, provided the agents respect due process and other constraints on how they perform these duties. If corporations can invoke “free speech” as a way to conceal relevant information about allegedly false statements — if they can effectively create immunity from investigation by playing a constitutional trump card — then we are on a slippery slope to the civic incapacity and relative weakness in both rule of law and economic growth that characterizes Russia and other regimes that collapse the distinction between economic and political power.
That’s why Exxon’s attack on the state investigations says so much about the damage to our constitutional framework wrought by the Supreme Court’s invention of these new corporate rights. In our federal system, attorneys general are the highest law enforcement officers in the state, generally elected directly by people, and charged with protecting the public interest and checking the abuse of corporate power. Yet in the post–Citizens United world, Exxon — with a virtually unlimited budget — can summon any officials with the temerity to do their job into physically distant courts. Trumped-up “civil rights” litigation of this kind has self-evident potential for the harassment and intimidation of would-be investigators.
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ref
http://blogs.reuters.com/great-debate/2014/10/06/the-fight-for-living-wages-is-for-workers-not-corporations/
The Great Debate
‘Living wage’ law is unconstitutional – if you ask lobbyists
By Ron Fein October 6, 2014
Industry trade groups are now challenging Seattle’s new minimum wage law as unconstitutional. They claim the city’s $15 an hour rate violates the 14th Amendment. Passed just after the Civil War to ensure equal rights for the newly freed slaves, that amendment says no state may “deny to any person . . . the equal protection of the laws.”
According to the industry lawsuit, the minimum wage law violates this Equal Protection Clause because it phases in the higher wage at a different schedule for franchised companies than for small local businesses.
But the trade groups’ argument twists the real intent of the 14th Amendment. Its drafters had a special interest in whether workers could earn “fair, living wages,” our research has revealed. That phrase was often used by Senator Jacob Howard, a staunch Republican who served as the 14th Amendment’s Senate floor manager in 1866.
During congressional hearings, Howard repeatedly asked witnesses whether employers were paying the newly freed slaves “fair, living wages.”
Howard had reason to emphasize this point. Even before the Civil War ended, the Union Army was deeply concerned about whether freedmen were receiving fair wages. An 1865 Army work plan, for example, instructed officers to assist freedmen in obtaining “fair wages for their labor.”
Sometimes it was a struggle to achieve this. When employers in two recalcitrant South Carolina counties persisted in underpaying the freedmen, one Army general contemplated moving those counties’ entire freed population to areas that would pay them “fair wages.” By 1866, a special military unit established to assist freedmen during the post-Civil War Reconstruction had resorted to distributing standard labor contracts, with fixed labor rates, that would promote “prosperous relations between capital and labor” and be “satisfactory to the freedmen.”
Many Americans viewed “fair, living wages” as an integral part of the struggle from slavery to full citizenship. The influential abolitionist editor Horace Greeley — famous for his 1865 editorial that advised “Go West, young man” — wrote a widely reprinted open letter to “the Colored People of North Carolina” on September 14, 1865. He urged them to take immediate steps to demand “fair, living wages” as part of their larger struggle for equal rights.
So when members of the special congressional committee asked whether freedmen could earn fair or living wages, they understood the issue as intimately connected with the equality that the 14th Amendment ultimately enshrined.
That wasn’t the only concern behind the 14th Amendment, of course. But, unlike protection of the economic advantages that franchised businesses have over small local businesses, it was part of the 14th Amendment’s overall goals.
Given how important obtaining “fair, living wages” was to the 14th Amendment’s authors, industry lawyers have no basis to argue that the Equal Protection Clause protects the companies, rather than the workers. But it’s not surprising. Ever since the 14th Amendment was passed, corporate lawyers have tried to leverage it to strike down laws like Seattle’s.
In 1938, a frustrated Supreme Court justice complained that of the cases in the court in which the 14th Amendment was applied during the first 50 years after its adoption, “less than one-half of 1 percent invoked it in protection of the negro race, and more than 50 percent asked that its benefits be extended to corporations.”
Just this year, the Equal Protection Clause has been invoked on behalf of coal companies and multinational agribusiness conglomerates.
We need to put a stop to this unfounded constitutional argument. The businesses had their opportunity to make their case to the city of Seattle — and they lost. They shouldn’t be allowed to run to court under the banner of the 14th Amendment.
When Abraham Lincoln was just a rookie congressman, he wrote that securing “to each laborer the whole product of his labor, or as nearly as possible, is a most worthy object of any good government.” That’s what Seattle’s law does. Sixteen years after Lincoln wrote that, he vowed at Gettysburg to preserve a “government of the people, by the people, [and] for the people.” That’s what the industry’s lawsuit threatens.
The congressmen of Reconstruction sought to carry forward Lincoln’s legacy with the 14th Amendment. Their vision of full equality is not yet realized. But if they could see what Seattle is trying to achieve, they would be proud.
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ref
303 U.S. 77
58 S.Ct. 436
82 L.Ed. 673
CONNECTICUT GENERAL LIFE INS. CO.
v.
JOHNSON, Treasurer of State of California.
No. 316.
Argued Jan. 14, 1938.
Decided Jan. 31, 1938.
Messrs. Wm. Marshall Bullitt, of Louisville, Ky., and B. M. Anderson, of Hartford, Conn., for appellant.
Mr. Neil Cunningham, of San Francisco, Cal., for appellee.
Mr. Justice STONE delivered the opinion of the Court.
1
Appellant is a Connecticut corporation, admitted to do an insurance business in California. In addition to its business conducted within that state it has entered into contracts with other insurance corporations likewise licensed to do business in California, reinsuring them against loss on policies of life insurance effected by them in California and issued to residents there. These reinsurance contracts were entered into in Connecticut where the premiums were paid and where the losses, if any, were payable. The question for decision is whether a tax laid by California on the receipt by appellant in Connecticut of the reinsurance premiums during the years 1930 and 1931, infringes the due process clause of the Fourteenth Amendment.
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3 pp
https://money.howstuffworks.com/corporation-person2.htm
What's strange, Hartmann points out, is that the justices hadn't ruled that way at all. Even fishier, the court reporter was a former railroad president [source: Hartmann]. Ultimately, since it was a headnote (a commentary prefix to the court record) written by the reporter, it didn't constitute law. But it did set precedent. Two years later, this idea was upheld in another case: Pembina Consolidated Mining and Milling Co. v. Pennsylvania [source: Aljalian]....404 waybck
{In Santa Clara County v. Southern Pacific Railroad Co.,4 the Court declared that a corporation is protected by the same rights as natural persons for purposes of the Fourteenth Amendment Equal Protection Clause, thus eliminating any uncertainty and providing an anticlimactic end to the debate.42
Chief Justice Morrison R. Waite 3 stated: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to... corporations. We are ... of [the] opinion that it does.4
Two years later, in Pembina Consolidated Silver Mining & Milling Co. v. Pennsylvania,45 the Court reaffirmed corporate personhood under both the Due Process and Equal Protection clauses of the Fourteenth Amendment.46 Did the members of the Court exercise legal reasoning, understanding the purpose and conforming to the spirit of the Fourteenth Amendment? Chief Justice Waite was the very justice who stated that to deny women the right to vote was not a violation of the Fourteenth Amendment,47 and authored opinions which limited the protection of newly-emancipated slaves.48
...48? See United States v. Cruikshank, 92 U.S. 542 (1875) (refusing to allow federal intervention into various state actions that allegedly breached Fourteenth Amendment protection); United States v. Reese, 92 U.S. 214 (1875) (upholding the dismissal of one of two indictments against Kentucky election inspectors for violating...the Fifteenth Amendment by not allowing an otherwise qualified citizen of African descent to vote); see also OXFORD, supra note 43, at 906. }
https://web.archive.org/web/20070319225921/http://findarticles.com/p/articles/mi_qa3735/is_199904/ai_n8836370/
very long
Fourteenth Amendment personhood: Fact or fiction?
St. John's Law Review, Spring 1999 by Aljalian, Natasha N
The United States Constitution "has stood the test of over two hundred years [and has] preserved and protected our basic rights and liberties."1 The interpretation of this governing document must be limited to ensure uniformity of law and equality of rights.2 Such limitation becomes crucial, particularly when considering the social, moral, religious, political, and economic evolution of our country since the drafting of the Constitution.3 The United States Supreme Court, and the judicial branch in general, have nevertheless created legal fictions to afford select groups constitutional rights that neither the Constitution nor the amendments thereto specifically guarantee.4
Part I of this Note will explore the original purpose of the Fourteenth Amendment. Part II will examine the concept of the legal fiction and the Court's employment of it to grant rights to groups and entities that are not explicitly granted rights under the United States Constitution. Parts III to VII will address corporate and fetal life, provide an overview of the judicial treatment of such lives, and consider the greater concept of life by examining the lack of constitutional protection in the fetal abortion context. Analogies will be drawn between the fetus and the human being, comparing this relationship with that between the corporation and the human being.
This Note does not attempt to argue that the corporate entity should be denied constitutional personhood. Likewise, it does not purport to address the right to choose an abortion, abortions in the context of rape and incest, nor when the mother's health is in jeopardy. The dilemmas raised by abortion are indeed personal and appropriate for another forum. This paper does address the blatantly illogical reality of including a corporation in the definition of personhood and granting it expansive rights while denying a fetus the same treatment. At a minimum, the fetus is due, and must be granted, the same constitutional protections as the corporation.
I. FOURTEENTH AMENDMENT: PURPOSE AND INTERPRETATION
Various interpretations exist for the true purpose of the original enactment of the Civil Rights Amendments and the Fourteenth Amendment.5 It is widely accepted that the Fourteenth Amendment was intended to be "a civil rights amendment,"6 designed to safeguard newly emancipated blacks from unfair governmental treatment.7 Adopted in 1868, the Fourteenth Amendment was enacted to give Congress the power to counter the "black codes" established following the passage of the Thirteenth Amendment-codes aimed at limiting the civil rights of the newly emancipated black slaves.8 Not coincidentally, the Fourteenth Amendment was enacted the year following the culmination of the Civil War "to prevent the South from terrorizing and tyrannizing the new freedmen and the white unionists who had opposed secession in several Southern states."9
The Fourteenth Amendment's Due Process Clause has served as a medium for creating rights not guaranteed by the text of the Constitution.10 As a result, we have witnessed the expansion of the umbrella of constitutional protection to cover groups never originally intended to be guaranteed protection.11 Reflecting this notion, the intent to empower or personify the corporation cannot be found anywhere in the original adoption of the Fourteenth Amendment.1l2 Corporations, notwithstanding that reality, have long used the Fourteenth Amendment as a weapon to secure rights.13 Even more ironic is that "of the cases in [the Supreme] Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of one per cent [had] invoked it in protection of the negro race."14 This irony is particularly noteworthy as the adoption of the Fourteenth Amendment was completely void of an intent to include corporations within the scope of constitutional protection.15
II. LEGAL FICTIONS
The legal fiction is a tool employed by the courts to create rights and is used both for convenience and to serve the ends of justice.16 This is particularly troublesome when one considers that the judicial branch, which is to interpret laws17 and which was originally described as "the least dangerous to the political rights of the Constitution"18 and the "weakest"19 branch, has come to be described as "an important legal and political institution."20 Employing various tools including the legal fiction, the judiciary is now creating laws, a function that it is performing in a dangerous and alarming manner.21 The courts, which are now seemingly completely unchecked, have created justifications to rationalize this behavior.22 It is posited that, "judicial lawmaking is part of the very constitution of American democracy, albeit an extremely controversial part."23 The Court has manipulated the Constitution and "use[d]. . . constitutional text as a springboard for announcing new rights not expressly mentioned in the text."24
III. CONSTITUTIONAL PERSONHOOD AND RIGHTS
all:
https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1478&context=lawreview
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ties to corp personhood:
Well, some people, realizing that in the long run local communities prosper with locally owned businesses, have tried to limit the corporate chain's right unlimited expansion. In the case of Liggett v. Lee [288 U.S. 517 (1933)] the State of Florida had imposed a filing fee for licenses for stores that was progressive: a person opening one store would pay a $5.00 fee, whereas a large chain was required to pay $30.00 per store. J. C. Penny Company challenged the law and the Supreme Court of the U.S. ruled that this law violated the 14th Amendment's principle of equal protection. This was at a time when the Jim Crow system of discrimination against blacks was at its height; blacks were still not considered persons protected by the 14th Amendment, but corporations were. Judge Brandeis's dissent in the case is well worth reading for anyone interested in a critique of the growth of corporate power up to 1933.
If terrorists had tried to bomb independent bookstores out of existence in the 1990's, people would have been demanding police protection for our neighborhood bookstores. Instead the independents, which had survived fairly well against the earlier versions of bookstore chains, were bombed (economically) by Barnes & Noble and Borders. Now independent book publishers, who had long struggled to survive against the big corporate publishing empires, can have their books effectively censored by two "buyers", one working at each of the chains. Now the dream of owning a small bookstore and carrying the books that you love has been replaced by the nightmare of being a low-paid clerk in a chain bookstore. Corporate personhood offers little or no advantage to small, local stores and businesses: it is of advantage only to the national and international corporations.
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Agricultural company plaintiffs claim that a law regarding use and disclosure of pesticides and genetically-modified crops violates their rights under the Equal Protection Clause of the Fourteenth Amendment.2
http://freespeechforpeople.org/sites/default/files/FSFP%20Kauai%20Amicus%20Brief.filed_.pdf
http://www.law360.com/cases/52d3d2593fdd846f1b000001
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Should McDonald’s & Monsanto Have the Same Rights as People? A Debate on Corporate Personhood
Five years ago, the U.S. Supreme Court handed down its Citizens United v. FEC decision striking down the prohibition on corporate expenditures in federal elections. In a 5-to-4 decision, the Supreme Court ruled that corporations are people, with the same right to influence politics as voters. Meanwhile, many corporations including McDonald’s, Monsanto and Peabody Energy have cited the principle of corporate constitutional rights in recent efforts to fight back against new laws. McDonald’s and other franchises are suing the city of Seattle over its new $15-an-hour minimum wage law, arguing it violates its corporate personhood rights. They are basing their case on the 14th Amendment, a constitutional provision written to protect newly freed slaves after the Civil War and ensure equal rights for all people. Monsanto is challenging Vermont’s recently passed GMO-labeling law under the First Amendment, claiming that it forces them to "speak" against their will. We host a debate on the movement to draft a constitutional amendment to overturn the doctrine of corporate constitutional rights with two guests: Ron Fein, legal director at Free Speech for People, and Kent Greenfield, professor of law and Dean’s Research Scholar at Boston College Law School.
http://www.democracynow.org/2015/3/13/should_mcdonalds_monsanto_have_the_same
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takings: This power is limited in the Fifth Amendment to the United States Constitution, and extends to the states under the Due Process Clause of the Fourteenth Amendment. (The Fifth Amendment prohibits the federal government from taking property for public use without "just compensation," which American courts have interpreted in the usual case to mean "fair market value".) This prohibition is deemed incorporated in the Due Process Clause of the Fourteenth Amendment (which bars state governments from depriving people of their property without due process of law.)
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5th 14th often work in tandem: eg
With Powell on the bench, after confirmation hearings in which he portrayed
himself as a moderate, the Court turned right in First National Bank of Boston v.
Bellotti (1978). Writing for the majority, Powell opined that a bank had a
Fourteenth Amendment right to use its treasury funds to oppose a state
referendum for a state income tax. To limit the political speech of a corporation
would be to violate the First Amendment, because the latter was meant to protect
political speech, whether the speaker was a natural person or a corporation. The
important thing was to protect the listener’s right to hear a vigorous debate. As far
as corporations were concerned, that was what the First Amendment was about."
"Powell did not explain why it was not sufficient to protect the free speech of
corporate officers as ordinary individuals. He did not explain why my listener’s right
to receive information should give a corporate director the right to take from
shareholders the money needed to send me that information.
The dissenters were strong and clear, but only dissenters. Powell and his four
colleagues ignored nearly 200 years of constitutional limits on corporate participation
in elections because they chose to do so. However, they did not go all the way:
They withheld their blessing from corporate interference in the election of
candidates for political office. Referenda were fair game, but candidates taboo.
The Court went back and forth on this issue for several years, until another
election installed another conservative president, who turned the Court hard right
with two new appointments. The president was George W. Bush; the
appointments, John Roberts and Samuel Alito. This new Court headed off toward
the U.S. Chamber of Commerce and its own Lochner era (Constitutional
Accountability Center, 2010). It crossed the line in 2010 with its Citizens United
decision.
The new era started in the 2008 primary season with a video-on-demand
movie against Hillary Clinton. Citizens United was the corporation that planned to
release the film. The impediment was the Bipartisan Campaign Reform Act (BCRA),
which kept corporations from spending treasury funds on corporate electioneering
ads for broadcast shortly before any federal election. In court, Citizens United asked
that its anti-Hillary film be exempted as a feature-length movie seen only by those
willing to pay. The case made its way to the U.S. Supreme Court.....
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sludge: Packer Township adopted its ordinance in 2008 to prohibit sludging on farmland, knowing that the law might be challenged. Residents decided that a ban was their only choice. They had seen the impacts of sludging directly, as the ordinance describes:
"In 1994, eleven-year-old Tony Behun from Rush Township, Centre County, Pennsylvania, died from a staphylococcus infection shortly after being exposed to sewage sludge. The following year, seventeen-year-old Daniel Pennock from Reading, Pennsylvania, died from a staphylococcus infection shortly after being exposed to sewage sludge. The U.S. Environmental Protection Agency (EPA) recognizes staphylococcus as a potential pathogenic component of sewage sludge."
The ordinance further states, "The land application of sewage sludge in Packer Township poses a significant threat to the health, safety, and welfare of the citizens and environment of Packer Township."
And: "In April 2002, the Inspector General of the Environmental Protection Agency (EPA), which oversees state sewage sludge regulations, issued a report in which it concluded, 'EPA cannot assure the public that current land application [of sewage sludge] practices are protective of human health and the environment.'"
A key piece of the Packer ordinance is found in Section 8.12, which eliminates corporate constitutional "rights" and protections within the township. By taking this step, the township is, in effect, stripping away the waste haulers' court-conferred rights, including Fifth and 14th Amendment rights to due process and equal protection, as well as powers under the Commerce Clause of the U.S. Constitution.
http://celdf.org/article.php?id=410
http://www.celdf.org/section.php?id=199
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Packer Township wins Round One of AG's sewer sludge suit | Times ...
https://www.tnonline.com/2010/.../packer-township-wins-round-one-ags-sewer-sludge-s...
Mar 24, 2010 - Round one of Packer Township's fight to regulate the use of sewage sludge within its boundaries has been won by the township, though the ...
Missing: 14th ?| Must include: 14th
East Penn Twp. prepares for sludge court battle | Times News Online
https://www.tnonline.com/east-penn-twp-prepares-sludge-court-battle
May 9, 2018 - The East Penn Township supervisors are gearing up for a legal battle to prevent the use of treated sewage sludge on a farm in the township.
Missing: 14th ?| Must include:
14th
COMMONWEALTH v. PACKER TOWNSHIP | FindLaw
https://caselaw.findlaw.com/pa-commonwealth-court/1623095.html
PACKER TOWNSHIP and Packer Township Board of Supervisors, Respondents. ... the Packer Township sewage sludge ordinance” filed by the Commonwealth ...
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