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Michael Jedson recently offered a list of reasons why he is not going to vote for Mick Mulvaney in his letter “Why I’m not voting for Mulvaney,” in the Oct. 21 edition of The Lancaster News.
While I firmly support his right to vote for the candidate of his choice, I will argue that citing Rep. Mulvaney’s opposition to a constitutional amendment to overturn the decision of the U.S. Supreme Court in Citizens United vs. Federal Election Commission indicates a lack of understanding of the issues involved.
In the 112th Congress, the Citizens United ruling has resulted in 11 proposed amendments in the House of Representatives, and three proposed amendments in the Senate. In my opinion, none of the proposed amendments are viable.
In many cases, the effect of the proposed amendment would be to destroy the very freedoms that comprise the core of our democracy.
For the purpose of this column, I shall specifically address one of the more atrocious examples (H. J. Res. 90, S. J Res. 33), which is largely based upon the proposed constitutional amendment put forward by the “Move to Amend” organization.
In this proposal, corporations have no rights under the Constitution.
The 4th Amendment would not apply to a corporation. A government entity (federal, state, or local) could therefore move in, without a warrant, at any time, and for any reason, and seize records from that corporation, and use those records in any way that government entity sees fit. You must understand that your bank, doctor, and lawyer are each corporations. Legal papers maintained at your lawyer’s office about you, your family, your assets, etc., could be seized because a government official does not happen to like you, and then published on the Internet. Neither you nor your lawyer’s corporation would have any legal recourse against this action.
The Fifth Amendment would be decimated. This amendment provides, among other things, that the government must compensate a person for property taken by the government. Under this proposal, corporate assets, including business personal property, buildings and land could be seized without compensation. You have spent your entire life building a business and a government entity could simply seize everything you have built. There would be no requirement that the stockholders of the corporation be compensated. There would be no requirement that a reason be given.
The Sixth Amendment would be moot. A corporation could be accused of a crime and tried in secret, with no right to be informed of the charges against it, no right to a speedy trial, no right to confront witnesses for the prosecution, and no right for compulsory process to obtain witnesses for the defense.
The Seventh Amendment right to a trial by jury would not apply to a corporation.
The Eighth Amendment prohibition against excessive fines would not apply when the target of the fine is a corporation.
In summary, this proposal would make the Bill of Rights meaningless.
Many individuals and groups have argued that the Citizens United case was wrongly decided. I strongly disagree. The case was correctly decided. However, what the case has revealed is that the Constitution, as amended, suffers from a defect in that the framers failed to distinguish between rights, protections and privileges.
I agree that “rights” should apply to natural persons.
The problem is that many of the “rights” enumerated in the Bill of Rights are actually “protections.”
“Protections” should apply to both natural persons and to corporate persons.
“Privileges” are another matter. I will make the case that “privileges” are “rights” that apply not to “all” persons, but rather to a well-defined subgroup.
For example, I suggest that the “Privilege to Vote” should apply to the subgroup consisting of all natural persons who (1) are citizens of the United States, (2) have attained a minimum age (currently 18 years), and (3) have not forfeited the privilege to vote by virtue of having committed (a) a felony, (b) election fraud, or (c) malfeasance in public office.
I agree that we need a constitutional amendment to address the some of the concerns at issue in the Citizens United ruling.
However, we need drafters, who like the framers of 235 years ago, understand the English language, and can put together a draft constitutional amendment that is not so obviously defective as that I have cited above. All of the various proposed constitutional amendments seeking to address to Citizens United ruling suffer from similar defects. In short, if Congress is going to put forward a proposal, Congress should find someone who can draft a proposal that is well structured and well thought out.
I am supporting Mick Mulvaney. I am not supporting him because we agree on everything. To the contrary, we do not agree on everything. However, I consider the defense of the Constitution to be the most critical aspect of a congressman’s job.