2nd Amendment Question

[Frank Ettin]

Phil, you're way off base.

First you say that corporations have no rights, and that is demonstrably false.

...A corporation ... has no freedom of speech, per se like a natural person....

And that's nonsense. First, a corporation has the rights of a natural person, and that goes back to long before the formation of the United States.

Second, a corporation has a right of free speech under the First Amendment, as demonstrated by the case I cited. In that case the Supreme overturned a State ban on advertising by the plaintiff utility.

Third, the distinction is between commercial and non-commercial speech. Corporations engage in non-commercial speech. Individuals can engage in commercial speech.

...the Constitution is about the rights of natural persons and about the powers granted to government by natural persons...

No, sorry, but that doesn't wash at all. Corporations existed before the formation of the United States and were understood to both have an independent legal existence and to essentially enjoy the rights of a natural person. The Founding Fathers, as educated men of the day, would have understood this. And yet they made no effort to draw any distinction with regards to the rights protected by the Constitution.

 

[Frank Ettin]

...I want you to give me one example (in the past century) of a person (human being) who spoke truth in a political context or other non-commercial speech and was successfully...

I just stumbled upon this. You may be interested. A lobbyist's conviction for failure to register and for failure to report expenditures as required upheld against a First Amendment and Fifth Amendment challenge. He was engaged in political speech, and there is no suggestion that he was in any way untruthful in his speech.

See http://www.jstor.org/pss/1285261.

 

[Phil Lee]

fiddletown points to the example of "A lobbyist's conviction for failure to register and for failure to report expenditures as required" as proof that a natural person can be prosecuted for speech.

Really, fiddletown has a stretch here and seem not to have read his own text (see my quote of it). A federal law requires a person to register as lobbyist and report expenditures in order to do lobbying. While lobbying may involve speech, so does printing and distributing a newspaper, yet no one suggest it would be illegal to require a newspaper to have a business license ("register" with the authorities to do newspapering) in order to be in that business. It is the failure to perform the requirements to be in the business that is the violation, not the speech.

By contrast, I have gone to Congress to speak to Congressmen about my issue and have not registered as a lobbyist and I have reported no expenditures for that purpose. I spent my own money and was paid by no one. I'd like to see them bring a case against me for that activity.

Once again, a person, not engage in commercial activity may speak the truth and not violate any Constitutional law.

If, as fiddletown says "a corporation has the rights of a natural person", then restrictions could be made on a natural person's speech in the same way as made on an artificial commercial entity. That is false -- at least so far as the Supreme Court example fiddletown cites. Even more importantly, a corporation obviously lacks rights of a natural person, for example, a corporation cannot legally vote in federal elections. And, so far as I know, there have been no corporations placed in federal prisons for illegal actions by the corporation.

If I had independently paid to make the same Central Hudson Gas & Electric Corp. advertisement, having no financial interest in company can fiddletown assert the government would have brought a case against me -- a natural person? If so, I'd like to see an example of a similar case being brought.

I agree with legaleagle45 that "An individual--- a natural person--- can engage in "commercial" speech ... happens all the time." If you read back, you see both fiddletown and I have gone through this point -- it is commercial speech that may be regulated to the point that merely being true isn't enough to protect it even for natural persons.

However, the First Amendment was written to protect speech by persons (natural persons) in the political arena including news reporting -- the protecting was from government. So, now the government, in its capacity to regulate commerce, may require more than the truth -- it may require it in a particular form, it may require more than what a commercial entity would like to say, . . . .

All of this commercial regulation doesn't impinge on the right of people, with no commercial interest, speaking the truth and the Courts have been consistent (and correct in this instance) in resisting prior restraints on non-commercial speech by individual natural persons.

The people made the constitution and property didn't. The bill of rights nowhere mentions rights of commercial entities but does mention rights of people, although owners, being people, do have rights protected by the bill of rights. For my education, I would welcome any discussion by the founders specifically discussing protection of the bill of rights for artificial entities. Please, give me some discussion by a founder of a topic other than protection for the property rights of people which is different.

 

[Frank Ettin]

[1] The laws relating to the registration of lobbyists have been challenged on First Amendment grounds. Indeed, in the case cited, the lower court overturned the conviction. The Supreme Court upheld the conviction.

[2] The First Amendment says, among other thing, that "Congress shall make no law ...abridging the freedom of speech...." According to the Oxford English Dictionary, in the late 18th century the word "abridge" meant, among other things, "To curtail, lessen or diminish (rights, privileges, advantages or authority)." It is a flat, unequivocal and unqualified prohibition directed against Congress. It makes no distinction regarding the content or type of speech. It makes no distinction as to who or what the "speaker" is.

[3] The First Amendment, on its face makes no distinction among commercial speech, political speech, artistic speech or any other kind of speech. It is entirely content neutral.

[4] Nonetheless, legislative bodies have enacted laws, and administrative bodies have adopted rules, that abridge free speech on the basis of content (for example by distinguishing between commercial and non-commercial speech) or in content neutral ways (such as laws regulating the time, place and manner of speech or assembly -- such as requiring that a permit be obtained before holding a public assembly or limiting places at which activities protected by the First Amendment may be conducted).

[5] Some of these abridgments have been sustained by courts as being within the scope of permissible regulation of a Constitutional right. Some have not, and have been overturned as exceeding the scope of permissible regulation of a Constitutionally protected right. An example of a regulation that was overturned as exceeding the permissible scope of a Constitutionally protected right was the advertising prohibition at issue in Central Hudson Gas & Electric Corp. And in that case, the Court found the the First Amendment rights of the corporation were violated.

[6] With regard to regulation of time, place and manner of First Amendment protected activities, see Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981). In that case, the Supreme Court upheld the authority of the Minnesota State Fair to restrict the fairground distribution activities of the Krishna religious sect to certain specified locations on the grounds. Also, the in the case of Madsen v. Women's Health Center, 512 U.S. 753, the Court upheld against a First Amendment challenge an injunction requiring that demonstrators at an abortion clinic be no closer than 36 yards (but overturned other portions of the injunction).

[7] The overarching principle is that Constitutionally protected rights may be regulated. The regulation of Constitutionally protected rights will be subject to strict scrutiny by courts. Any such regulation must serve a compelling or substantial governmental purpose, must reasonably serve that purpose and must be no broader nor invasive than necessary to serve that purpose. It is neither easy nor necessarily common to regulate Constitutionally protected rights, but it can be, and is from time to time successfully done.

 

[ConstitutionCowboy]

Remember this, folks. A corporation may only do those things for which the power to do has been specifically granted by law. Corporations are a construct that are allowed to be created by law and have no inherent rights - or powers for that matter; corporations only have those powers granted by the law allowing for the creation of those corporations.

For all intents and purposes, all people are equal under the law and all have the same inalienable rights and powers. There are many different forms of corporations, and certain corporations have powers other corporations might not in the law.

There can be no inherent rights in a corporation, only those powers granted by the law.

Whether it's a lawyer, a layman, a corporate president, or a panel of justices; whomever says a corporation has rights is misspeaking.

Woody

 

[Frank Ettin]

...Whether it's a lawyer, a layman, a corporate president, or a panel of justices; whomever says a corporation has rights is misspeaking...

I see you're starting Saturday morning in Fantasyland again. But no matter. This, in the final analysis has nothing to do with the overarching principle that Constitutionally protected rights can be subject to some regulation on certain terms and under certain conditions (see post 106).

The question is finally irrelevant because the regulation under the First Amendment makes no distinction with regard to the speaker, be it a natural person or corporation. Such regulation may make a distinction based on the type of speech (commercial or non-commercial). But such distinction itself is, on its face, not permitted under the First Amendment. What part of "no law abridging" don't you understand?

 

[7.62X25mm]

The rationale behind the Second Amendment is to provide the People with the means to defend themselves against a tyrannical government.

You don't allow the government to regulate that means.

 

[legaleagle_45]

Originally Posted by ConstitutionCowboy
Corporations are a construct that are allowed to be created by law and have no inherent rights - or powers for that matter; corporations only have those powers granted by the law allowing for the creation of those corporations.

Very close Woody... at least that was the concept under common law. I assume that in your statement, the powers include not only those of the general law allowing for the creation of artificial entities, but also those specifically provided for in the corporate charter granted to the artificial entity providing for its existence... as the powers and priviledges were primarily related to the terms of that charter, contractual in nature and binding the government to the incorporators, their successors and assigns.

That was, or used to be the primary view, however it is clear that the framers of the 14th intended to include artificial entities within the scope of the protections provided for in the 14th. As such, the courts have consistantly held that corporations, by virtue of the 14th have some "rights" identical to natural persons, including freedom of speech. Some rights that they do not have include the right to vote and the right to sit on a jury... but perhaps more essential, and getting back to "inalienable rights", corporations do not have key protections of the "right to liberty", which can be loosely defined as freedom of movement... the ability to go from one geographical location to another. Corporations only have legal existence in the jurisdiction wherein they are granted a license. A foreign corporation may not maintain a presence in a jurisdiction without obtaining the permission of the jurisdiction. Not so with a natural person... I can move to any state without obtaining the permission of that state, because that is my natural right as an individual and that right is protected by the Constitution.

Finally, I agree with your assertion that corporations do not have "inherent rights". Corporations were not created by God and were not present in nature. Their "rights" are a construct of man... of course man has the ability to provide these artificial constructs with "rights" that are identical to some of the rights contained in the BoR's... and that is the case with freedom of speech.

Wow Woody, we are not too far apart, if at all, on this issue...

 

[legaleagle_45]

The rationale behind the Second Amendment is to provide the People with the means to defend themselves against a tyrannical government.

That is only part of it. Blackstone asserted that the right to arms connsisted of two components:

1.) The right of resistance;
2.) The right of self preservation.

The first component falls within your description, but the second component is a pure self defense right and is not dependant upon the existance or non existance of a tyranical government.

This "expansion" is crucial if we wish to prevail in the courts regarding the individual right nature of the 2nd... however, and for a variety of reasons, that is beyond the scope of this board and is more adequately addressed in law review articles and briefs to the courts.

 

[Phil Lee]

It is pretty obvious that fiddletown and I (and maybe fiddletown and woody) are speaking past each other. Maybe this will provide fiddletown with some necessary insights.

First, the use of rights in the Constitution and the use of rights in law are distinct on many grounds. The bill of rights addressed rights held by the people when the Constitution was drafted and supposedly well understood at that time. The Constitution prohibits in various ways government from infringing on these rights. In order to legally do away with any of these rights, at minimum, the Constitution should be amended.

There is some question whether even an amendment would suffice since the some of these rights are "inalienable". Amending such a right out of the Constitution would only permit the right to be infringed, not eliminated. I suspect that fiddletown regards this last statement is distinction without a difference, but woody and I wouldn't.

Rights defined in law are different. They may be altered by an act of the legislature or a decision by the Courts. Your right to be given a Miranda warning when arrested isn't in the Constitution and isn't protected by that document. This legal right can be extinguished by another case decided by the Supreme Court.

But saying an artificial person, a corporation, has a first Amendment right to speech must be wrong. I'm willing to be convinced to the contrary if anyone can show me a single instance of any founder writing of an intent to extend bill of rights protection to artificial entities. fiddletown points to the lack of limits on speech to deduce that it applies to any entity capable of speech (anyone for protecting the right of speech by parrots?). I think this fails unless fiddletown can present a common understanding written by the founders that the rights presented in the bill of rights applied also to non-natural persons (e.g., parrots, corporations, . . . ). Show me a single example of a founder writing that speech would be protected even for natural persons who were slaves or any other entity considered in the Constitution as property.

Now, one difference between fiddletown and I (and, I guess, fiddletown and woody) seems to be along the lines of a theory of an extensible Constitution. If, it seems that a right was left out of the Constitution, fiddletown seems to believe it can be added by act of the legislature or by a Court decision. So, the US Supreme Court says corporations have a first amendment right to speech means that it is a right protected by the Constitution. Really, such a right from an extension of the Constitution is a right protected only by legal inertia.

I believe it to be sloppy thinking (lacking precision) to assert that rights obtain by the extensible Constitution are Constitutional rights. BTW, that isn't to say that we don't have other rights to be discovered under the Ninth Amendment. But, if a Court wishes to assert under the Ninth Amendment that artificial entities have some of the rights of natural persons, they should invoke the Ninth Amendment in their conclusion and explain better than they have in the cases cited by fiddletown.

Again, I await a real education pointing to any writing by a founder saying corporations have protected rights in the Constitution.

We know that the US Supreme Court makes mistakes and misstates cases -- otherwise how do you justify Brown v Board and the selective overturning by the Court of its prior holdings in U. S. v. Cruikshank, 92 U.S. 542 , 553.

Amar, in a recent paper, makes a point in his discussion of the obligation of the Supreme Court to "follow the Constitution, not . . . [a prior] case" if the Court thinks the prior case was decided from less understanding of the Constitution than available today. Put it simply, the Constitution is the core law and precedent Court cases (or legislative acts) can be overturned.

So, what fiddletown describes as "rights", for the most part, are rights protected by legal inertia in the extensible Constitution that he cites. Yet, he immediately cites cases where courts are infringing or regulating these rights as justification that the rights of a natural person may similarly be infringed. That is wrong.

And, he talks about these extensible-Constitutional rights in way that confuses himself on the issues. For example, "The laws relating to the registration of lobbyists have been challenged on First Amendment grounds" is his example trying to argue that lobbyists have had their right to speech infringed. fiddletown would recognize at once the absurdity of an appeal by a person that some act of murder was protected by first Amendment grounds. It isn't a right to speech that would be protected no matter what the appeal said. Likewise, prosecuting for the crime of lobbying without registering or filing required reports isn't infringing the criminal's first Amendment rights either.

Most of the many other points made by fiddletown seem similarly unrelated to the real Constitutional issue of government prosecution of people for the content of their speech.

But, I'm still waiting for instruction with an example writing by a founder who has said that the First Amendment speech protection applies to artificial entities and not just natural persons.

Legaleagle45, on the other hand, cites the change in the Constitution presented by the 14th Amendment. I think this is wrong too since that Amendment begins

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 to any person within its jurisdiction the equal protection of the laws.

Again, I await instruction, but it seems to me that artificial entities are not protected in this Amendment since they aren't born or naturalized, so can't be citizens, and aren't persons protected by this Amendment.

That is not to say that the Courts didn't extended the Constitution once again for the 14th Amendment to artificial entities and then infringed the extension in some way as applied to artificial entities.

As I recall, there is a pretty good discussion in Congress of the legislative intent behind the 14th Amendment (most of which was ignored by the Court in Cruikshank). If these congressmen intended the 14th to apply to artificial entities, I would love to be instructed by their writings.

 

[Cyborg]

Re: Phill Lee's Posts

There is a mentality that the law is what the Supreme Court says it is.

No there is a realization that, theories aside, in practical terms the law IS EXACTLY what the SCOTUS says it is. You and I can believe what we wish but that does not change the way things ARE!

Reminds me of the story about the little boy whose parents were Christian Scientists - the folks who do not accept the objective reality of evil. Little boy is sitting in class and the teacher notices how sad he looks. When she asks the little boy what's wrong he replies that his father thinks he is sick. The next day the boy looks even sadder and when the teacher asks about his dad, the boy replies that his dad thinks he's getting worse. A couple of days go by and each day the boy tells the teacher that his dad thinks he is getting sicker and sicker. Finally the little boy comes to school with puffy eyes and a runny nose and when the teacher asks about his dad the boy replies, "Teacher! He thinks he's dead! And if he doesn't change his mind real quick they're gonna BURY him!"

Believe what you want about different theories of the law. In practical terms the law - especially the constitution - is exactly what SCOTUS says it is. But then I believe that nothing is illegal unless someone is prosecuted for it and a jury finds him guilty. It's like that great line in the miniseries "Shogun" where Anjin is describing the political situation in Europe to soon to be Shogun Toronaga. Toronaga asks if, given the current state in Europe, what the English and other Protestant countries were doing wasn't treason. Anjin replies, "Only if THEY win."

Now, one difference between fiddletown and I (and, I guess, fiddletown and woody) seems to be along the lines of a theory of an extensible Constitution. If, it seems that a right was left out of the Constitution, fiddletown seems to believe it can be added by act of the legislature or by a Court decision.

Ah, Mr. Lee, can you spell "right to privacy"? I can't find it anywhere in any copy of the constitution I can get my hands or browser on but IMS SCOTUS has made rulings based on that "right". Would that not be an example of a right being "added by <snippage> a Court decision"??? Looks like it to me.

 

[akodo]

We cannot yell "fire" in a theater but isn't that an infringement of the right to free speech?

no, that is criminlizing an action.

The equivalent would be 'no target shooting on a public street'

here's how to make the 'free speech fire/theater' equal the demand for training before getting a CCW

Because yelling fire in a theater would cause crowd to panic, and people would get trampled, before you can buy movie tickets you must take a course on 'logicstics of crowd movement' and 'human psychology 101' and 'fire spread rates in typical urban buildings'

Only with this knowledge will you know how to properly judge if the size and location of a fire justifies calling out and causing a panic.

 

[legaleagle_45]

Originally Posted by Phil Lee
Again, I await instruction, but it seems to me that artificial entities are not protected in this Amendment since they aren't born or naturalized, so can't be citizens, and aren't persons protected by this Amendment.

That section deals with "citizens"... a corporation is not a "citizen". That particular section of the 14th was designed and intended to over rule by constitutional amendment the decision by SCOTUS in its infamous Dred Scott decision, which held that blacks could never be citizens of the United States...

The operative section in which SCOTUS applies the Bill of Rights to the states is the Due Process clause. Take a look at this carefully:

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 to any person within its jurisdiction the equal protection of the laws.

Do you see where privileges and immunities portion protects citizens, yet the due process and equal protection clauses protect persons? The legislative history shows that the original form had citizen throughout this amendment, but in deliberate attempt to expand the protections offered thereby, the word "citizen" was changed to the more general term "person" for purposes of the Due Process and Equal Protection clauses. See Graham, The "Conspiracy Theory'' of the Fourteenth Amendment, 47 Yale L. J. 371 (1938).

SCOTUS concurs with this interpretation. Munn v. Illinois, 94 U.S. 113 (1877). In an interesting case arising under the Fifth Amendment, decided almost at the same time as Munn, the Court explicitly declared the United States "equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law.'' Sinking Fund Cases, 99 U.S. 700 (1879). I say interesting, because it is a quasi reverse incorporation case, wherein the prohibitions of the 14th were reflected backwards to impose identical restrictions upon the feds with respect to corporations.... but perhaps that is only interesting to those who are familiar with incorporation theory...

 

[Phil Lee]

Aha! Cyborg claims

No there is a realization that, theories aside, in practical terms the law IS EXACTLY what the SCOTUS says it is. You and I can believe what we wish but that does not change the way things ARE!

So, those persons appealing in Brown v. Board were engaged in a futility since it had all been settled by Plessey v. Ferguson (1896). And, the Heller effort was previously settled in Miller. And that is just the cases that produced changes via Court actions. I suppose I shouldn't mention cases where Presidential threats or actions produced a legal result contrary to decisions by the US Supreme Court -- nah, forget Roosevelt's threat to pack the Court and its backtracking or Jackson's declaration when told of decision by the US Supreme Court "now let them enforce it"! Of course, ignore abolitionists that opposed the well settled Constitutional principle of slavery.

I know it is unpopular with the lawyer class and those willing to rent their thinking out to courts, but history shows that "well settled principles of law" are respected when not opposed by a determined people (blacks, gays, maybe even gun owners) with power. Such power may be worked to reverse decisions of the Supreme Court even if it is exercised by a minority of the people provided they have enough determination.

To legaleagle45: A person isn't a corporation but a natural human being who might not be a US citizen. Now, please tell me that you have researched the legislative history of this amendment to find that congress intended to include corporations as persons.

You haven't yet given me any convincing evidence the framers of the 14th amendment intend that purpose. If the US Supreme Court holds without some documentation of framing intent for an equivalence of persons with corporations for a taking of property, then I'd suggest this is just one more example of the extension of the Constitution. I really don't object to extending the Constitution in some cases, but I really do object to pretending, with next to no analysis, that the extension has a rational emanation from the Constitution.

BTW, pray how can you deprive a corporation of property without depriving natural persons of property? The Court might have over reached to declare the principle that an artificial entity such as a corporation is entitle to due process protection for property, when depriving a corporation of due process deprives the stockholders of the same due process.

In any case, the Supreme Court may declare Lincoln's dog to have 5 legs, but the dog still has four legs.

 

[Frank Ettin]

Phil, the real problem is that you are stuck in your alternate reality. You are looking at the Constitution, and the law in general, in a vacuum. Your analysis is completely divorced from the history of the application of the law in real life.

The law does not exist in a vacuum. It exists in this, the real world, where it is used as a tool by which courts decide the outcome of disputes. Just as a musical score is just marks on paper until it is realized by the playing of it, the law derives its meaning from its application by the courts to real life matters.

And at the end of the day, the opinions of the courts as to what the law is will trump yours. Because the opinions of the courts affect the lives and property of real persons (including corporations) in the real world. Your opinions, on the other hand, do not.

Enjoy your alternate reality and please give Schrodinger's cat a scratch behind the ear for me.

 

[Frank Ettin]

...pray how can you deprive a corporation of property without depriving natural persons of property? The Court might have over reached to declare the principle that an artificial entity such as a corporation is entitle to due process protection for property, when depriving a corporation of due process deprives the stockholders of the same due process...

There are corporation that are not owned by anyone. With a charitable corporation, for example, such as may be organized as a California non-profit, public benefit corporation, there are no shareholders, and no one has a claim on its assets.

 

[legaleagle_45]

Now, please tell me that you have researched the legislative history of this amendment to find that congress intended to include corporations as persons.

I researched it. Excerpts from my previous citation:

In an argument before the Supreme Court of the United States in 1882 Roscoe Conkling, a former member of the Joint Congressional Committee which in 1866 drafted the Fourteenth Amendment, produced for the first time the manuscript journal of the Committee, and by means of extensive quotations and pointed comment conveyed the impression that he and his colleagues in drafting the due process and equal protection clauses intentionally used the word “person” in order to include corporations “at the time the Fourteenth Amendment was ratified,” he declared, “individuals and joint stock companies were appealing for congressional and administrative protection against invidious and discriminating State and local taxes. One instance was that of an express company, whose stock was owned largely by citizens of the State of New York...” The unmistakable inference was that the Joint Committee had taken cognizance of these appeals and had drafted its text with particular regard for corporations.

Conkling’s argument has figured prominently in historical writing since 1914 when B.B. Kendrick unearthed and edited the manuscript copy of the Journal which Conkling used in court. Checking the record in the light of his major propositions, historians became convinced of the fundamental truth of Conkling’s story. Repeatedly, it appeared from the Journal, the Joint Committee had distinguished in its drafts in the use of the words “person” and “citizen.” Under no circumstances could the terms have been confused. Moreover, as the Committee had persistently used the term “person” in those clauses which applied to political rights, the force of this distinction seemed plain: corporations as artificial persons, had indeed been among the intended beneficiaries of the Fourteenth Amendment.

 

[Phil Lee]

Thanks legaleagle45 for the incentive to educate myself. In your research, you must have missed Ted Nace's book or you might not have quoted from Roscoe Conkling's who used a secret journal in an argument to deceive the Supreme Court.

The full reference to Nace is Gangs of America, The Rise of Corporate Power and the Disabling of Democracy, Ted Nace, Berrett-Koehler, 2003. On pp 113-115 you will find the selections of text (please excuse the typos from my retyping):

Corporate lawyers were indeed trying to make inroads into the Constitution. That had been going on even before the Civil War, as shown in cases stretching back to the 1819 Dartmouth decision and in various legislative maneuvers at both the state and federal levels. Many of these bids for power ended up in front of the Supreme Court. But the particular conspiracy that the Beards fingered -- the Committee on Reconstruction plotting to use the word persons in a particular way that would allow corporations to claim coverage under the Fourteenth Amendment -- actually appears to have been a fabrication. The evidence, as it turns out, says it didn't happen.

But what about the documentary evidence -- specifically, the journal quoted by Conkling? Misplaced for three decades afther Conkling appeared before the Court, the Journal of the Joint Committee of Fifteen on Reconstruction was finally located and published in 1914 by Princeton professor Benjamin Kendrick. No one actually sat down to compare the journal, word by word, with the quotations from it that Conkling had used in his arguments before the Court. It was generally assumed that the discovery of the journal confirmed what Conkling had said.

Finally, twenty years after the journal was made public, a Stanford University law librarian named Howard Graham took the time to study it closely. Graham did not initially set out to disprove the Conkling-Beard claim that Congress secretly intended the Fourteenth Amendment to include corporations. But as he began routinely checking the quotes cited by Conkling in his Supreme Court testimony against the journal uncovered by Professor Kendrick, Graham made an interesting discovery. Roscoe Conkling, it appeared, had deceived the Supreme Court, deliberately switching key words here and there to "prove" his point about the intent of the committee that drafted the Fourteenth Amendment.

Conkling's main fabrication was his claim that in drafting the Fourteenth Amendment, the Joint Committee on Reconstruction had gone back and forth between using the word person and using the word citizen, settling finally on the word person because the broader legal meaning of that word would include corporations.

. . .

As presented by Conkling, the story was plausible. But, in fact, as Graham discovered when he read Conkling's "secret journal," the switch from persons to citizens and back to persons had not actually occurred. All ddrafts of the amendment had used the word person consistently. In his argument to the Supreme Court, Conkling had made a great show of emphasizing the switch, first to citizen and then back to person. To Graham, the evidence was clear that Conkling's argument was not only wrong but was intended deliberately to deceive the Court.

It is wrong to argue a secret intent behind the use of "persons". No contact should be enforced if the terms used have a meaning understood by only on one side of the contract. If the terms of a contract are not applied as they are used in common practice, the term can't be enforced -- (e.g., But Judge, I know the contract called for 100,000 dollars for the work, but I meant 100,000 Australian dollars even though I didn't say so specifically. I had a secret meaning. Now I want my full payment in those more valuable dollars.) Hugo Black had a comment about secret meanings, but I'll leave that to you to find.

If Conkling and the drafting committee had a secret meaning not revealed to the ratifiers, the plain meaning is what was ratified. But, . . ., Conkling lied about the drafting committee's intention. There was no secret intent. Persons were not intended by the drafting committee in Congress to include corporations and the US Supreme Court decision making that holding was based on a lie.

Gosh, lying to a Court -- who would have suspected an upright former Senator and lawyer would lie to the Court to earn a $10,000 fee (comparable to roughly $500,000 today) from his corporate employer.

 

[gc70]

I know it is unpopular with the lawyer class and those willing to rent their thinking out to courts, but history shows that "well settled principles of law" are respected when not opposed by a determined people (blacks, gays, maybe even gun owners) with power. Such power may be worked to reverse decisions of the Supreme Court even if it is exercised by a minority of the people provided they have enough determination.

Behold, the malleable, extensible Constitution.

 

[Ieyasu]

That is fascinating (and amazing) Phil.

After reading your post and doing a little Googling I ran across this link which I also found interesting:
http://www.bloomingtonwilpf.org/localagenda/howardjaygraham.pdf

An excerpt:

It was not the decision [Santa Clara Co. v. Railroad Co], but the headnote to the decision, written later by Court Reporter Davis, that gave corporations the personhood protections they had sought in vain for so long.[emphasis mine]

Even though I have little knowledge of 14th-Amendment jurisprudence, what I have read rather disgusted me and this certainly adds to it.

 

[Ieyasu]

This appears to be a link to Graham's original article in 1938, although there are grammatical errors in the text (obviously either the original was poorly edited or this page poorly transcribed): http://section520.org/conspiracytheory.html

 

[Phil Lee]

Thank you Ieyasu and thanks for adding real content.

fiddletown says

Phil, the real problem is that you are stuck in your alternate reality . . . .

I'm not sure why fiddletown posts and debates here. If he wants discussion of legal issues, I'm sure he can read case decisions where the people he respects give their opinions or he can submerge himself in law review articles.

But, I know why I'm here. Franklin said at the close of the Constitutional convention that we had a republic if we can keep it. I'm here to do my part in keeping the republic.

The republic won't be kept by the likes of Judge Reinhardt of the 9th Circuit who let an case opinion he drafted be influenced by the lies of Michael Bellesiles in Arming America. Nor will the republic be kept by Chief Justice Morrison Waite who let his opinion be influenced by Senator Conkling's lies.

I'm fully aware of the power of the state to apply force to maintain their concept of the law and my more limited influence. But liberty cannot be maintained if government is ignored by everyone and while I can do little, that little isn't nothing.

I participate here so that government will not be ignored by me. I count on enough people having similar attitude like me to bring pressure to correct wrong decisions -- at least in the cases concerning rkba.

The alternate reality I occupy, fiddletown, is one of learning and educating others in order to influence politics and I'm quite happy to occupy this alternative reality to create problems for lawyers and Judges who neglect their obligation to the Constitution -- as the Constitution is, rather than as corrupt or lazy judges claim it is.

 

[ConstitutionCowboy]

But, I know why I'm here. Franklin said at the close of the Constitutional convention that we had a republic if we can keep it. I'm here to do my part in keeping the republic.

The republic won't be kept by the likes of Judge Reinhardt of the 9th Circuit who let an case opinion he drafted be influenced by the lies of Michael Bellesiles in Arming America. Nor will the republic be kept by Chief Justice Morrison Waite who let his opinion be influenced by Senator Conkling's lies.

I'm fully aware of the power of the state to apply force to maintain their concept of the law and my more limited influence. But liberty cannot be maintained if government is ignored by everyone and while I can do little, that little isn't nothing.

I participate here so that government will not be ignored by me. I count on enough people having similar attitude like me to bring pressure to correct wrong decisions -- at least in the cases concerning rkba.

The alternate reality I occupy, fiddletown, is one of learning and educating others in order to influence politics and I'm quite happy to occupy this alternative reality to create problems for lawyers and Judges who neglect their obligation to the Constitution -- as the Constitution is, rather than as corrupt or lazy judges claim it is.

Amen, brother!

I have asserted that the right to arms is auxillary right to an underlying natural, or God given right, to self defense. Even a prisoner in a correctional institution is entitled to exercise the right to self defense. Do you think a prisoner in a correctional institution is entitled to exercise his right to arms? Notice the distinction, Woody. The right to self defense remains, but the auxillary right to arms is not allowed while incarcerated. That would not be the case if your postulate was correct...

You're right. A prisoner has the right to self defense. The state will provide that for him. The prisoner is a ward of the state. As for the prisoner's RKBA, he still has it. He is deprived his ability to exercise it while incarcerated(See the Fifth Amendment). When he gets out, his arms should be waiting for him to keep and bear. If he can't be trusted with them, he needs to be kept incarcerated until he can be trusted. Sucks to be him.

Woody, actually the Constitution does say (in Article III), "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ... establish...." And, "...judicial power shall extend to all cases, in law and equity, arising under this Constitution...."

See that word "under"? It has meaning. Plug in that meaning and it all becomes clear that the Court has no power over the Constitution.

At the same time, I didn't see anything in the Constitution about Woody having authority to decide the extent of the judicial power of the federal courts.

Oh, but indeed there is! I am one of We the People and We the People outlined the power of the Court. It is the same as if I was there writing the Constitution along with the Founding Fathers. The same goes for you and every other citizen of this great Union.

So it does seem that the courts have a better claim than you do.

As shown; sorry, no. They have no more power to say what the Constitution says than you or me beyond the scope that they are ones of We the People as well.

It is in the Penumbras and Emanations Clause...

I think you have the wrong spin on that. Those penumbras emanate from the Constitution's Sphincter Clause.

Some of these abridgments have been sustained by courts as being within the scope of permissible regulation of a Constitutional right.

In the case of the Second Amendment, any such "abridgment"(infringement) would be a usurpation.

... Any such regulation must serve a compelling or substantial governmental purpose, must reasonably serve that purpose and must be no broader nor invasive than necessary to serve that purpose. ...

In the case of the Second Amendment, the keeping and bearing of arms is benign and innocuous. Aside from the absolute prohibition upon government to infringe the right, there could be no compelling governmental purpose other than as a prerequisite to tyranny.

As for the "citizens" and "person(s)" dichotomy in the Fourteenth Amendment, their use is clear. "Citizens" refers only to citizens, and "person(s)" would apply to everyone who is here legally including citizens.

Woody

I see it clearly as fact. Words mean things. Just as numbers have value, you can add, subtract, multiply and divide them. I just do the math. B.E. Wood

 

[Frank Ettin]

We shall see. And I suspect that we shall see some real progress in the courts for the RKBA with the foundation provided by Heller. But I also predict that we well see many existing, and new, limitations on the RKBA sustained by the courts. You, Phil, and you, Woody, and some others here, will object, and claim the courts' decisions to be Constitutional violations or usurpation of power they don't have. But those decisions will nonetheless operate to affect peoples' lives and change or order conduct in the real world. And we should hope that they will be skillful and knowledgeable lawyers who understand and can work the system to represent our side and gain us the most favorable decisions reasonably possible in real life.

...See that word "under"? It has meaning. Plug in that meaning and it all becomes clear that the Court has no power over the Constitution....

Actually Woody, the operative word is "arising."

 

[gc70]

Originally Posted by ConstitutionCowboy:
Oh, but indeed there is! I am one of We the People and We the People outlined the power of the Court. It is the same as if I was there writing the Constitution along with the Founding Fathers. The same goes for you and every other citizen of this great Union.

Amazingly, I am in total agreement with ConstituionCowboy.

We the People outlined the power of the Court.
We the People have endorsed the actions of the Court.
We the People have accepted the Court's interpretations.

Of course, "We" is plural and represents at least a majority of the People, although individual People may hold differing opinions.