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A Constitutional Amendment to do Away with Citizens United Decision?

On Behalf of | May 28, 2014 | Blog, Uncategorized |

“Or . . . Corporations still aren’t people.”
A New Jersey Employment and Civil Rights Attorney Discusses:

As a Constitutionally inclined and trained attorney, I’m never a big fan of Constitutional Amendments. The more you “tack on” ideas to a document as important as the Constitution, the more impliedly “patch-worky” it becomes. It’s not good to have a Constitution that’s “patch-worky.” Constitutional Amendments ought to be fixes to holes in the original Constitution, or “add-ons” that were initially forgotten. We also might fix with an amendment items which weren’t imagined at the time the document was written, but which issues now confront modern life.

It’s not such a good idea to use the Constitution as a platform to embody philosophical beliefs, whether progressive or conservative.

I remember as a child the “debate” over the Equal Rights Amendment for women. I also remember the more recent push from the neo-conservative and tea party nuts to define marriage as a union between one man and one woman. These are politically motivated movements based on philosophical beliefs. The Constitution is not the place for them.


I’ve made no secret in previous blogs that I’m no fan of the Citizens United decision from the US Supreme Court. I believe that our Supreme Court is conservatively biased and unapologetic about that bias. I believe that the conservative wing of the Court smirked its way through the Citizens United decision with every sense that they knew that they were doing something which offended the ideas upon which the Constitutional democracy they serve was based. I think they did this wanting to give something to the right wing and to corporate America. I’ll go to my grave believing that, no matter what they say and no matter what anyone else says. I’ve read too many of the decisions by the Justices responsible for Citizens United to not be convicted in my belief. The decision is a black mark on America. It’s something over which the Country should always be embarrassed, regardless of direction in which the Country moves for the next 100 or even 1000 years, whether Citizens United is eventually “fixed” or not. Even as a historical footnote in a hopefully future time when it’s nothing but a bad memory, it’ll be a black mark.

But should we use a Constitutional Amendment to fix it?

That’s the current debate. Should we use the very significant instrument of Constitutional Amendment to say that corporations aren’t citizens and that they don’t have the rights of citizens? Why is this important? Only for the most fundamental reason of all – our Freedom is at stake.

We as individuals can never allow the corporate fascist philosophy to advance further. Right now, they control most Republicans and a significant number of Democrats, but if corporate fascism is allowed to roll forward unchecked – and Citizens United is absolutely the engine grease that is allowing this – then eventually they’ll own all of the Republicans and most of the Democrats. The few lone progressive, socialist and green party candidates and independents will be viewed as crackpots who don’t “go along with” how things are done in America; an America in which you don’t want to live.

It will be a bad, bad day when corporations entirely run the Country.

Citizens United and McCutcheon, the companion horror, allow corporations “free speech” rights in the form of billion dollar contributions to candidates who can’t help but be bought, sold, and paid for with such numbers before them. As a consequence, corporations get what they want to a degree that’s never been the case before. The Will Ferrell Movie The Campaign pokes fun at the McCutcheon and Citizens United decisions, but because it is a comedy, it’s easy to mistake the very serious reason why the movie is tragically funny.

One of the groups involved in pushing for this Amendment is “Public Citizen,” a progressive advocacy group.

I plan to support them. I plan to do this because I think that a Constitutional Amendment is the right decision to fix Citizens United. The Constitution, when drafted in 1789, did not contemplate the power of corporations as the modern molochs they’ve become. The framers could not have imagined the world of 2014 and how corporations have their tendrils not only in politics and information management, but in popular culture, medicine, etc. This isn’t something for which we can look back to the state of affairs in 1789 and find an answer without an Amendment. Even the case law which developed after the Constitution was drafted, but before the corporate hegemony of 2014 evolved, there were decisions that suggested that a “business” could be a person. The reason for these early decisions, however, was simply a practical one. Businesses had a legal responsibility to not commit wrongs, just like people didn’t. They had a responsibility to people in their business dealings, and so it made sense to treat corporations as “people” for the purpose of efficient administration of justice. That’s why businesses first became “people.”

It was never intended by the framers of the Constitution or by the writers of early decisions in which businesses became “people,” that businesses should have the fundamental and cherished Constitutional rights of people. Recent decisions have suggested that corporations have “religious rights” which allow them to discriminate on the basis of sexual orientation and gender, and of course Citizens United and McCutcheon have suggested that the corporations have the most precious right that individuals cherish, the right to free speech – in the form of money to buy elections.

This is a nightmare that needs to be fixed by a Constitutional Amendment. As a Civil Rights Attorney, I support it.