The Constitution

Citizens United--An Amendment

Words, whether spoken or written, are our primary means of communication. For this reason, even as words evolve, it is essential that we agree on their meaning. No one is above the law of definition. The alternative is an inability to communicate with reason, and confusion more disruptive than Babel.

At the Iowa State Fair on August 11, 2011, Mitt Romney made his now infamous declaration: “corporations are people, my friend.” That statement simply does not pass muster. Romney was roundly
ridiculed by citizens in the crowd. In news reports, members of the media chimed in. However, few people took the time to analyze the danger not only of his idea, but also his misuse of language.

In the Declaration of Independence, we read the following: “We hold these truths to be self-evident, that all men
(sic) are created equal, that they are endowed by their Creator with certain unalienable Rights….” Whether or not one believes in God, the point here is that people, not corporations, are so endowed.

The problem is that Romney equivocates on definition and defies the conventions of logic, for a corporation exists only as a legal entity. As such, its rights and obligations do not accrue naturally, as they do with persons. It is true that a corporation is made up of individuals, but collectively it is not a person.

On the one hand, it is easy to see why Romney thinks corporations are people. He has never had to work a real job in the real world. Almost all of his wealth is derived from sitting in boardrooms and deciding which companies are most attractive for the “purchase, dismantle, sell and workers-be-damned” model of business.

On the other hand, Romney is not entirely to blame. He is not known for original thought, and in this case his idea emanates from Supreme Court and its
Citizens United decision of 2010. Prior to that decision, most rational persons would never have dreamed of calling corporations people. But once one accepted definition is dismissed, it is easy to alter the meaning of other words as well. All of a sudden, money is defined as speech.

I have a friend who suggested the Supreme Court did not anticipate that their decision would undam the flood of corporate money that has so corrupted the current political season. I am a little more cynical. And for good reason. Even if one were to grant a certain naiveté in the
Citizens United case, the Court revealed its true colors this past June by doubling down in another 5-4 decision, the American Tradition Partnership case. In that decision, the court struck down a century-old Montana campaign finance law that prevented corporations from spending money on political campaigns. This may be a terribly disturbing image, but the truth is that the Supreme Court essentially disrobed and flashed American society.

Like elected officials, the Justices are entrusted with protecting the Constitution. As the final arbiter of law, the Supreme Court’s obligation transcends even that of the President and the Congress. What recourse does society have when the Court, itself, tramples the Constitution and substitutes chaos for the rule of law?

The
Citizens United decision necessitates a constitutional amendment. This is a remedy that I recommend with great reluctance. There is always a danger that fanciful ideas rooted in unrestricted emotion might make their way into constitutional law, as happened with the Eighteenth Amendment prohibiting alcohol. To its credit, the United States has passed only twenty six amendments, one of which, the twenty-first, was passed to reverse the foolishness of the eighteenth.

A constitution that is amended too frequently becomes a useless document. Still, a constitution is comprised of words, and the meaning of those words matters. Corporations are not people and money is not speech. If integrity is to be restored to the electoral process, the United States needs a twenty-seventh Amendment that overturns the Citizens United decision.
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The Electoral College at 205 Years of Age

When the Constitution was adopted in 1787, one of the key concerns was the election of the President and Vice-President. Contrary to popular belief, the current electoral system was not established to provide equal representation among sparsely and densely populated states. There were only about 4 million people in the U.S. in 1787. Today the United States of America is the third largest population in the world with over 314 million.

The Electoral College, or “Electors” as it is referred to in the Constitution, was itself a compromise system. The Electoral College is an example of federalism as much by accident as by intent. One suggestion under consideration at the time was that Congress should elect the President. The risk there, of course, is that the President would be beholden to Congress, not to the people. James Madison, among others, favored a direct election by total popular vote. However, as he himself wrote, that was an equally unworkable construct due to the restricted voting rights in slave states. Thus was born a compromise known as the Electoral College.

Query: Is this electoral system relevant in today’s world? Unfortunately, it seems that this question is only raised in earnest every four years, during a presidential election. Yes, this is 2012, an election year. Yes, I am adding my voice to this issue, even though it cannot be resolved at this time.

Therein lies the paradox. It is precisely because we are in the midst of an election that the issue is of concern, and the issue will fade from view once the election is over—unless we have a repeat of the 2000 presidential election. Democrats cried foul when Al Gore won a substantial majority of popular votes, but George W. Bush was elected by a single electoral vote. Would the Republicans not have been just as vociferous had the tables been turned? Of course they would. Such is the disingenuous nature of politics. Nobody wants a repeat of that election. Now, then, is the time to seize upon a public interest, and lay the groundwork for a post-election debate.

Everyone in America is well aware of a troubling fact: There are only a handful of states that will determine the outcome of this election. In principle, every vote counts. In reality, every vote does not count equally.

The all-important swing states are created because states like California and Texas are solidly Democratic and Republican, respectively. At least for now. These two most populous states in the nation, together representing 89 electoral votes, are not “in play”. All the attention of the Obama and Romney campaigns is on nine states, each with only a handful of electoral votes: one with only four, and two with only six.

Proponents of the current system suggest that this balances the influence of smaller states; the presidential campaigns must visit these states regularly to court their votes. These states cannot be treated as “fly over” states during the election process. That suggestion does not hold up to scrutiny. There are several other sparsely populated that also possess only a handful of votes each. Yet, these are not swing states. New York and Florida each have 29 votes. Florida is a swing state. New York is not.

What would be the advantage of a popular election? Actually, it would balance the needs and interests of the entire electorate much more than the current system. Each candidate would obviously need to campaign in the large states. To begin with, even though these safe states lean predominantly one way or the other, their votes would be tallied collectively with every other state.

It is conceivable that Republican votes in a Democratic-leaning state might “swing” the election as much as the nine states do under the current system. The same holds true in reverse. The smaller states could not be ignored, because the total of their votes also might alter the outcome of the election. That evens the importance and power of every voter in every state.

I live in California. I am grateful everyday. For one thing, I am not subjected to the barrage of campaign ads that citizens in swing states must bear. And yet, whether my candidate wins or not, I want to know that my vote counts in this presidential election. I suspect that many citizens in Texas, New York, Massachusetts, Alaska, etc. think the same.

The Electoral College system may have been historically necessary, even if only to secure passage of the Constitution. This process of indirect election of the president is no longer viable. Regardless of how politically divided the country may be today, whoever is elected President of the United States must represent all the people. Maybe all the people should have a voice in who wins.
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Full Circle: Apartheid Returns to America

The word apartheid was never used in America to describe the era of segregation, nor was it used to describe race relations in general. It is a word sprung from the heart of the Afrikaans language to express a deep-seated prejudice against non-white South Africans, primarily blacks. What many do not know is that the South African system of Apartheid was directly modeled on the American system of segregation.

During its 40-year history, Apartheid came to be vilified as one of the most despicable institutional government policies of the modern world. Even before formally establishing this horrendous system, South Africa created legislation known as “pass laws” to regulate the movement of non-whites. These laws required non-whites to carry passbooks that proved they had a right to travel within certain areas of the country.

Not only an implement to control the movement of non-whites
within an area, these pass laws were also used to keep them completely out from others. For example, Indians were not allowed in the Orange Free State (one of the four provinces that comprised South Africa before the new constitution was established in 1996).

The United States of America became the recipient of a dubious gift from the U.S. Supreme Court in late June. Apartheid has returned to the nest. There is no other conclusion to be drawn from the Court’s decision on the Arizona anti-immigration law (SB 1070).

Given that Apartheid was such a disaster in South Africa, the chick was clever enough to return masquerading under a new name: Arizona v. United States, No. 11-182. Admittedly, it is not as simple or catchy as Apartheid, but it is just as effective.

It is true that the Supreme Court does not incorporate the word Apartheid into its decision. But that is just an insidious affront to the intelligence of U.S. citizens—or an acknowledgement of the lack thereof. It is almost as if they know, or inherently suspect, that their decision is a violation of human rights, dignity and justice.

It has almost become trite and tiring to reference Emma Lazarus’ poem at the foot of the Statue of Liberty whenever immigration comes up for debate. And yet, that poem should be as foundational in American life as the Constitution, itself. For, not unlike the Declaration of Independence, the poem enlists words of profound beauty to enshrine the values that define the new America. Values that underpin the Constitution and make it possible. Indeed, the poem appeals to and calls forth our better selves.

Most people find familiar the lines beginning with, “Give me your tired, your poor, your huddled masses yearning to breathe free.” They are the great rallying cry, proclaiming to all the world: Here lies a land of freedom and equality. We have always struggled to live up to the challenge. Sometimes we simply refuse to heed the call. Three sentences earlier in the poem, we read about the statue herself: “From her beacon-hand glows worldwide welcome.” That simply is no longer true.

Some might suggest that poetry is not law. Fair enough. But we are not just a nation of law. The constitution was not created in, nor does it exist in, a vacuum. If poetry espouses the values upon which the law is founded, then the law should reflect back those same values. On this point the Supreme Court failed.

The issue at hand is not whether someone entered the United States legally or illegally. If officers can demand papers when they stop someone, then people who are here legally will not be afforded the rights that are legitimately theirs. Let us at least be honest about two things. First, just as in the South Africa of old, the only people who will be questioned will be people of color. Secondly, the United States is no longer a land where everyone is welcome.

As the right wing xenophobes in more and more states seek to turn this national disgrace into law, the courts become the only recourse for a society seeking to regain its moral balance and sanity.

The justices on the Supreme Court swore to uphold the Constitution. Perhaps they should look not just to the letter of the law, but the principles that breathe spirit into the law.
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