NRO on "People's Rights Amendment"

Keep the First Amendment

(from the editors at National Review Online)

The phrase “stunning development” is used far too often in our politics, but here is an item that can be described in no other way: Nancy Pelosi and congressional Democrats, frustrated by the fact that the Bill of Rights interferes with their desire to muzzle their political opponents, have proposed to repeal the First Amendment.

That is precisely what the so-called People’s Rights Amendment would do. If this amendment were to be enacted, the cardinal rights protected by the First Amendment — free speech, freedom of the press, freedom of assembly, freedom to petition the government for redress of grievances — would be redefined and reduced to the point of unrecognizability. The amendment would hold that the rights protected by the Constitution are enjoyed only by individuals acting individually; individuals acting in collaboration with others would be stripped of those rights.

The Supreme Court and U.S. law have long held that Americans do not surrender the rights they enjoy individually when they act in association with one another. This has been a fundamental feature of U.S. law since the very beginning, and even before that, inasmuch as the notion that collective action does not deprive us of our rights goes back into the Common Law as well. U.S. court cases going back to the 18th century recognize that fact, as does federal statute: 1 U.S.C. §1 reads in part: “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

Strange things give the Left the heebie-jeebies, and “corporate personhood” seems like a strange thing. But “corporate personhood” is simply the notion that incorporated groups — businesses, political parties, unions, nonprofits, etc. — are single entities under the law. One would think that the Left would find this convenient: If Monsanto is not a “person” under the law, it cannot be regulated, taxed, sued, or fined, because for the purposes of the law it does not exist. Without the ability to treat enterprises as a single legal entity, there would be no redress for damages caused by a defective GM vehicle except to file claims against each individual owner of the 1.57 billion shares of GM stock outstanding.

But if GM and Monsanto can be sued, then they can defend themselves from suits. If they can be taxed on their property, then they can own property. If they have liabilities under contracts, then they have rights under contracts, too. If they have liabilities under the law, then they have rights under the law.

But the Occupy Left and the Democrats who sympathize with those ignorant misfits resent the fact that some business enterprises oppose their political agenda and support their opponents. (And some don’t: Wall Street gave generously to the Democratic party, and to Barack Obama particularly, in the 2008 election cycle.) The Left controls the unions, the government bureaucracies, most of the media, and the educational establishments, but its dreams of taxation and regulation do not sit particularly well with many who have to pay those taxes and suffer the regulation. The answer, in the mind of Pelosi et al., is to strip those opponents of their political rights.

The so-called People’s Rights Amendment would have some strange consequences: Newspapers, television networks, magazines, and online journalism operations typically are incorporated. So are political parties and campaign committees, to say nothing of nonprofits, business associations, and the like. Under the People’s Rights Amendment, Thomas Friedman would still enjoy putative First Amendment protection, but it would not do him much good inasmuch as the New York Times Company, being a corporation, would no longer be protected by the First Amendment. In short, any political speech more complex than standing on a soapbox at an intersection would be subject to the whims of Nancy Pelosi.

Representative Donna Edwards, a Maryland Democrat, nonchalantly concluded that the amendment would of course strip even political campaigns of the First Amendment rights: “All of the speech which, whether it’s corporations of campaign committees and others engage in, would be able to be fully regulated under the authority of the Congress.” The entire point of having a Bill of Rights is that there are some things Congress may not do. “Congress shall make no law” is a phrase that Democrats cannot abide, apparently.

One of the great dangers of such efforts to regulate political speech is that it puts incumbents in charge of setting the rules of the game under which their power and their position may be challenged. That is a recipe for abuse and corruption, and for smothering those critics who would draw attention to abuse and corruption.

Nancy Pelosi proposes to amend the Constitution the way the iceberg amended the Titanic. The First Amendment has served us well. Nancy Pelosi has not, but she has led her Democrats to a disturbing place in their quest to secure power, even at the cost of cashing in the Bill of Rights.

(for the text of the proposed amendment, click here)