[-empyre-] empyre Digest, Vol 62, Issue 22

[John Haber]

I must say I'm a little appalled at the idea that the problem is the 
14th amendment itself and, in particular, that it must be challenged 
because it's inherently unfair to single out former slaves, whereas a 
better legal framework would guarantee protection for all.  There's a 
lot wrong here. 

First, the 14th amendment already does say plain and simply that all 
persons deserve equal rights under the law.  Its only mention of slavery 
is in the last clause, to state that we didn't have to reimburse former 
slave owners.  It's the 13th amendment, freeing the slaves, and the 
15th, giving them the vote, that mention "race, color, or previous 
condition of servitude," and I trust we don't wish to rescind those.

Second, what if it had specifically addressed the rights of African 
Americans?  It's disgusting to think that there's anything wrong with 
that.  It sounds like the right wingers complaining that whites are 
suffering from civil rights.  In fact, it sounds like the position of 
the faction of the court that reached this awful decision. 

Third, one could, I suppose, argue that the amendment could have been 
phrased differently to make clear that persons were, well, people.  The 
trouble is that the current interpretation is so ludicrous that no one 
would ever have thought of that before. 

Now, it's not easy to explain how the idea of corporations as persons 
under the 14th amendment came to be, along with the second plank, of 
money as speech.  It would not have occurred to a nation after the Civil 
War, when corporations were relatively rare, less powerful, and often 
nonprofit.  It would seem to be denied by the text of the amendment 
itself, which starts with the phrase "born or naturalized," thus, at 
least to me, implying that "persons" are going to be life forms. 

It's a long history, and I'm not really qualified to tell it, so I'll 
let you look it up.  It started with a mere aside or note in a decision 
largely unrelated to the point from a conservative court.  Even then, it 
only slowly attained much value as precedent.  It certainly didn't imply 
all this till this week.  I recommend Stevens's dissent, in fact, where 
he starts right in by pointing out that, whatever value we agree to give 
to corporate rights as persons, they're not the same as human rights 
since, for example, corporations can't vote or hold office (his 
examples).  Then he notes the 100 years of precedent that this decision 
broke. 

Anyhow, we could blame the American legal system, but I suggest we start 
blaming the Republicans.  I know it's hard for us liberals to organize 
rather than mourn (or backbite).  I sure felt that this week, with the 
reaction to the Massachusetts election and the readiness to blame those 
who actually supported a more liberal health-care bill rather than scum 
like Nelson, Landrieu, Snowe and the fiercer rest of her party, and the 
media network putting out their lies.  But consider it.  Had Bush not 
got a second term, with Alito and Roberts appointed to the court, this 
decision would not have happened, and indeed no one would ever have 
dreamed it would happen. 

To put it another way, perhaps more relevant to Empyre, this isn't about 
legal or critical theory.  It's about politics and power, and the bad 
guys won.

John