Wednesday, November 30, 2011

How Corporate Personhood Came into Being 3/3

by Nomad

In the previous two posts, I have charted the rise of the modern corporation in the United States and, how they quickly collected power into the hands of a few. I also attempted to show how that power was used to eliminate its rivals, namely the Southern Confederacy and to corner the market on America’s most valuable commodity, cotton.
Now it’s time I returned to my original question. How did corporations come to be thought of as equal to human beings, in terms of civil rights? Where did this strange notion that “corporations are people too (my friends)” originate?
To that question, I was offered this single clue, but from an unquestionable source.

Sotomayor’s Remark
A news item about a “provocative” comment during the discussion on the Citizens United decision from one of the dissenting Supreme Court justices, Sonia Maria Sotomayer, recently caught my eye. While debating the issue of corporations, specifically, about imposing limits on political spending, the conservative members of the bench were in agreement about the corporations’ right to freedom of speech. This was based on the supposition that corporations are endowed with the same rights given to citizens, according to earlier precedent rulings. Here is the report of the remark:
The court’s majority conservatives agreed that corporations have broad First Amendment rights and that “recent precedents upholding limits on corporate political spending should be overruled.” However, Sotomayor disagreed, and said the court should reconsider the 19th century rulings that first afforded corporations the same rights as real, live people.
Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.” [emphasis mine]
The word “provocative” never fails to pique my interest so I began hunting down the 19th century the Justice was referring to. It may surprise you- as it did me- to learn that the judicial scaffolding upon which the Citizens United case is supported is in fact quite flimsy.

The main precedent which has been referred to time and time again when considering corporate personhood dates back to a Supreme Court case in 1886. Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 , was a matter of corporate tax law. Specifically whether, in light of certain changes to the California constitution, a corporation had "the right to deduct the amount of their debts [i.e., mortgages] from the taxable value of their property, a right which was given to individuals."

Fascinating? Well, no, not really.

When the California authorities, namely California Board of Equalization, attempted to impose and to recover the delinquent taxes on the Southern Pacific Railroad, the directors of the corporation blankly refused. It was not a small matter to the county- as well as other counties in similar circumstances with the railroad. Any success at recouping the massive losses in tax revenue stemming from Southern Pacific's refusal to pay would have been a substantial windfall. When the lower courts ruled in favor of the railroad, Santa Clara County filed a writ of error to the federal court and pursued the case all the way to the Supreme Court. It seemed like a wise move for the county; the local courts were tainted with the kind of cozy relationships in which justice is suffocated in its crib.

For example, Charles Crocker had been President of Southern Pacific Railroad prior to this case coming to the courts. Later, while the Central Pacific was still under construction, Crocker and his associates acquired control of the Southern Pacific Railroad in 1868.

Charles Crocker was the younger brother of Edwin B. Crocker, who in 1863 was appointed Justice of the California Supreme Court by the then-governor Leland Stanford (California’s first Republican governor). A year later, Justice Crocker agreed to serve as legal council for Central Pacific. If that doesn’t make a convincing case of conflict of interest, then consider this: When Central Pacific and Southern Pacific became one and the the same, the former governor Stanford would later take over as president of Southern Pacific Company from 1885 until 1890. Later, he served in the United States Senate from 1885 until his death in 1893.

When corporations, politics and the justice system are so tightly interwoven, how could anybody expect a fair decision?

Corporations, Roscoe Conkling and the Fourteenth Amendment
And so the debate moved to the Supreme Court. On one side, S.W. Sanderson, a former judge, who had made a fortune by litigating for the railroads, was matched on the opposing side by Delphin M. Delmas, who, as one source notes, had always worked on behalf of local California governments and, later, as a criminal defense attorney. Incidentally, he had passionately and single-handedly argued pro bono before the California legislature for a law to protect the nation's last remaining redwood forests.

Testifying in behalf of the railroads was the one of the most powerful politicians of his time for the most powerful state in the Union, Roscoe Conkling. His name may not mean too much today but in his time, Conkling was a man whose name carried weight. I compiled this information from his biography:
Conkling served in both the U.S. House (1859–63 and 1865–67) and the U.S. Senate (1867–81). Conkling twice turned down nominations to the U.S. Supreme Court, including a confirmed nomination in 1882. In the Senate, he fought ferociously for the continuation of political patronage—the system whereby elected officials appoint individuals to positions in the civil service and other areas of governments—and against the civil service reform efforts that would have ended it. It's that crony capitalism Palin talks about. His political machine in New York State was, according to his principal biographer, "one of the wonders of the age."

As he had done in testifying for preceding railroad cases, Conkling attempted to convince the court that railroads should be allowed equal protection under the law as guaranteed by the Fourteenth Amendment. The Equal Protection clause applied, he argued, applied to corporate entities as well as natural persons. The amendment, which had always appeared to have been written in regards to the newly freed slaves, states:
Section 1. 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.
This amendment to the Constitution gave the rights of citizenship- with all its protections- to all persons born or naturalization in the United States. Clearly there is no direct mention of corporations. Despite that, The corporation owners, mostly from the railroads, decided that the power that they possessed was too limited. So, according to the theory, they devised a rather remarkable plan to subvert the amendment protecting the rights of the freed slaves. William Meyers in The Santa Clara Blues: Corporate Personhood versus Democracy, gives this excellent summary of the background:
Their lawyers came up with the idea that corporations, which might be said to be groups of persons (though one person might in turn belong to (own stock in) many corporations), should have the same constitutional rights as persons themselves. If they could get the courts to agree that corporations were persons, they could assert that the States, which had chartered the corporations, would then be constrained by the 14th Amendment from exercising power over the corporations.

Beginning in the 1870's corporate lawyers began asserting that corporations were persons with many of the rights of natural persons. It should be understood that the term "artificial person" was already in long use, with no mistake that corporations were claiming to have the rights of natural persons. "Artificial person" was used because there were certain resemblances, in law, between a natural person and corporations. Both could be parties in a lawsuit; both could be taxed; both could be constrained by law. In fact the corporations had been called artificial persons by courts in England as early as the 16th century because lawyers for the corporations had asserted they could not be convicted under the English laws of the time because the laws were worded "No person shall..."
The need to be freed from legislative and judicial constraints, combined with the use of the word "person" in the U.S. Constitution and the concept of the "artificial person," led to the argument that these "artificial persons" were "persons" with an inconsequential "artificial" adjective appended. If it could be made so, if the courts would accept that corporations were among the "persons" talked about by the U.S. Constitution, then the corporations would gain considerably more leverage against legal restraint.
These arguments were made by corporate lawyers at the State level, in court after court, and many judges, being former corporate attorneys and usually at least moderately wealthy themselves, were sympathetic to any argument that would strengthen corporations. There was a national campaign to get the legal establishment to accept that corporations were persons. This culminated in the Santa Clara decision of 1886, which has been used as the precedent for all rulings about corporate personhood since then.
Conkling, in particular, had an unquestionable influence on the court because of his direct involvement in the drafting of the amendment some 20 years earlier in the years following the Civil War. As a congressman, Conkling served on the Joint Committee on Reconstruction which rafted the Fourteenth Amendment to the United States Constitution back in 1868. That committee had been controlled by the Radical Republicans and had required southern states to approve that amendment before being readmitted to representation in Congress.

And this is where suspicious begin to creep in to the story.

To support his claims Conkling even brought what he claimed to be notebooks written by the framers of the amendment. However, in “The ‘Conspiracy Theory’ of the Fourteenth Amendment” in The Yale Law Journal in 1938, Howard Jay Graham wrote that the notebook evidence Conkling offered the court, which purported to show that that the committee had vacillated between the terms “citizen” when referring to the non-economic Privileges or Immunities clause, and “person” in reference to Due Process and Equal Protection. The impression he tried to create in the minds of the judges was that the framers had finally settled on “persons” in an effort to cover corporate “persons.”

However, what Graham discovered was that the word “citizen” had never been used in any of the due process-equal protection drafts, and that “person” had been used throughout. Graham concludes: “This part of Conkling’s argument was a deliberate, brazen forgery” The notebook used in his argument was displayed but never entered into evidence, nor apparently was it shown to anyone, nor was it saved.

On the whole, Conkling’s testimony might have been an interesting one but the court hesitated to take the bait. Unlike the Supreme Court of our times, the court of that day was not quite prepared to go beyond the issues brought before it. (Dissenting judges in the Citizens United case made this charge against the decision.)

In any event, The Court agreed with the railroad that the county had no jurisdiction and cited that the California constitution had denied "railroads and other quasi public corporations" equal protection of laws as guaranteed by the Fourteenth Amendment to the Constitution. They did not wish to debate the details of the amendment on what they considered a matter of tax law.

Nevertheless, the decision-making process was deeply flawed. Up until that time, there had been no ruling formally accepting that corporations would retain Fourteenth Amendment rights. Thus, when Supreme Court Chief Justice Morrison Remick Waite announced orally, (before the arguments were ever even presented) that the Court then unanimously conceded corporations to be persons within the meaning of the Equal Protection Clause, his remark had no legal basis.
The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.

That’s it. That’s where corporate personhood began.

The matter was apparently never openly discussed. Neither side of the issue was weighed nor fairly represented. It might well have been decided by a toss of a coin for all we know. This crucial point- upon which the whole personhood debate rests- is all merely a matter of a private, undocumented agreement between judges. We must accept, then, that the matter was discussed privately among the justices but there is no record of it.
As Thom Hartmann uncovered in his book, Unequal Protection: The Rise of corporate Dominance and Theft of Human Rights, the task of giving a summary of the decision for the headnotes for the case fell to a man named John Chandler Bancroft Davis. He was no doubt confused about one fine point that had to be included in the headnote.

As Wikipedia informs us:
Preceding every case entry is a headnote, a short summary in which a court reporter summarizes the opinion as well as outlining the main facts and arguments. For example, in United States v. Detroit Timber Lumber Company (1906), headnotes are defined as "not the work of the Court, but are simply the work of the Reporter, giving his understanding of the decision, prepared for the convenience of the profession.
Bancroft Davis asked the Chief justice for clarification from the leader of the court,
"Please let me know whether I correctly caught your words and oblige."
The reply was as remarkable as it was brief. Justice Waite responds:
"I think your mem. in the California Rail Road tax cases expresses with sufficient accuracy what was said before the arguments began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the Constitutional question in the decision."[emphasis mine]
Thus the matter of corporate personhood left up to the discretion of a minor court reporter writing a summary headnote for a rather unremarkable case.
Later would come other cases to support what corporate lawyers took to be a precedent. Minneapolis & St. Louis Railroad Co. v. Beckwith (1889) Supreme Court ruled a corporation is a “person” for both due process and equal protection, for example, and Noble v. Union River Logging R. Co. (1893) corporations. for the first time, had claim to the Bill of Rights. The 5th Amendment says: “. . . nor be deprived of life, liberty, or property, without due process of law.”And these cases, apparently, like Citizens United, were all based on a non-existent precedent, only referenced in a brief summary by a Court reporter.

Reactions and Objections
One obvious question is whether Chief Justice Waite’s statement whether it actually was unanimously agreed among the other judges that corporations were considered- according to the Fourteenth Amendment- “persons.” There’s no record of it except for the mention of it in the memo. The text of the decision, itself, refers only the corporations have similar rights as citizens in the matter at hand, property tax law, not in a civil context. It reads:
That the provisions of the constitution and laws of California, in respect to the assessment for taxation of the property of railway corporations operating railroads in more than one county, are in violation of the fourteenth amendment of the constitution, in so far as they require the assessment of their property at its full money value, without making deduction, as in the case of railroads operated in one county, and of other corporations, and of natural persons, for the value of the mortgages covering the property assessed; thus imposing upon the defendant unequal burdens, and to that extent denying to it the equal protection of the laws. [emphasis mine]
Another-perhaps more obvious- point:

If the Reconstruction committee (which had originally drafted the amendment) had wished to include the word "corporations" in their amendment, there was nothing obstructing them from doing so. Such divination might be perfectly acceptable for readings of the ancient texts like the Bible, or in documents that pre-dated the context, like the Constitution, but in this case, all of the members of the committee were familiar with corporations. And yet they did not see fit to mention them while composing the draft. So, there is really no valid reason for attempting to read other meanings into the choice of words, and no need for later re-interpretation.

In fact, as Graham pointed out, John A. Bingham, principle framer, employed these guarantees specifically and in a context which suggested that free Negroes and mulattoes (rather than corporations and business enterprise) unquestionably were the persons' to which he then referred. Whatever the lawyers for the railroad companies might have argued, there is no evidence to support their views.

If one wishes to pick at the amendment and attempt to divine secret messages in the text unnecessarily, it can easily work in the opposite direction. As the amendment states that "All persons born or naturalized.." and that opening definitely calls into question whether corporations were ever intended to be included since corporations are neither born nor naturalized, but chartered and founded. They are, after all, man-made creations made by individuals with individual civil rights. Corporations are not born any more than a foundation or a workers' union is born.

Would Republicans, like Mitt Romney, be willing to argue to a snickering crowd that other human-formed organizations are people.. like unions? The Miner's Union is a person? The Teamsters Union is person? 
So was this a case of conspiracy or merely an failure of the court? The whole matter of leaving a court reporter’s note as the only record of such an important issue seems highly suspicious.

The first direct charge of a conspiracy came in 1927 by historians Charles and Mary Beard in The Rise of the American Civilization. They proposed that, back in 1866, the certain members of the Joint Congressional Committee which drafted the Fourteenth Amendment, namely Ohio Congressman John A. Bingham, had conspired on behalf of corporations and with the careful use of terms has widened the scope well beyond its intended purpose. The evidence is not all that convincing; it is a charge which would certainly involve some impressive long term planning.

Still, it’s worth a closer look. The same people who demanded the harshest possible terms for the South, The Radical Republicans, were in control of the Commission that drafted the amendment. This faction, at least by the records available to us, seem to have been motivated by the highest ideals of abolishing slavery. Thaddeus Stevens, leader of the faction, had defended and supported cases involving various minorities, Native Americans, blacks and women. His out-spoken stand against slavery was well-known to all who knew him. His desire for the emancipation of the slaves, the desire to abolish slavery as a institution in the United Sates was genuine. The history of this movement began some thirty years before as ethical, moral and religious argument.

There is not enough evidence to indicate a conspiracy among the drafters of the amendment, as far as I can detect.

Of course, had they desired to assist corporations, they could easily have been more direct about it. The ambiguity of the amendment might merely represent a method of reaching a majority, conclusive decision or approval by Congress. To the Beard conspiracy theory, I will, therefore, apply the Scottish verdict: Neither Guilty or Innocent, Unproven. There’s no argument that the Fourteenth Amendment- no matter how it might have been abused later- is a noble document.

Not every Supreme Court Justice was so easily convinced that corporation deserves to be considered “persons,” with constitutional citizen rights. For example, Justice Hugo Black, former Alabama senator turned Supreme Court Judge did not mince words about his feelings on this interpretation of the Constitution.
I do not believe the word 'person' in the Fourteenth Amendment includes corporations... This Court has many times changed its interpretations of the Constitution when the conclusion was reached that an improper construction had been adopted...When a statute is declared by this Court to be unconstitutional, the decision until reversed stands as a barrier against the adoption of similar legislation. A constitutional interpretation that is wrong should not stand. I believe this Court should now overrule previous decisions which interpreted the Fourteenth Amendment to include corporations.
Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection.

...Certainly, when the Fourteenth Amendment was submitted for approval, the people were not told that the states of the South were to be denied their normal relationship with the Federal Government unless they ratified an amendment granting new and revolutionary rights to corporations.
As Justice Sotomayor has correctly observed, the decision, which has formed the basis for over a century of corporate law, is questionable, to say the least, being based merely on an answer to a court reporter's summary, on false testimony from an unreliable witness and on contestable court procedure.

The fact that so many other later decisions regarding corporate personhood were based on this decision presents something of a nightmare for the courts.
For example, as author, William Meyers points out,

Corporate personhood is at the root of such Supreme Court rulings as First National Bank of Boston v. Bellotti [435 U.S. 765 (1978)], which equate corporate donations to political campaigns with free speech. They allow corporate money to govern the political process. These rulings can be reversed once the 1886 decision is reversed, since they are directly dependent upon it. Then we should be able to force corporations out of the political process. We could do this through legislation or through the chartering process. Without personhood the corporations are not entitled to First Amendment rights; they will have only what privileges the people, through our government, give them.

We can and should prohibit them from making any kind of contribution to politicians, to lobbying groups, or to campaigns involving referenda. Any advertising that does not sell products — that is, any advertising not presenting factual information about the products or services a corporation offers — should be prohibited.

Decision after decision would have to be revisited but, by repealing corporate personhood it would also allow the government to return to its proper place as protector of living citizens and not the slave of artificial persons.

Just because the same mistake is repeated over and over, it doesn't make it any less wrong. Look where it has led our country, after all. This is an issue that will not go away. It has brought millions out into the streets to protest and millions more will follow them if some kind of just and impartial review of the issue is ignored. This matter threatens to ruin the nation. We have become the very empire our own founding fathers fought and died in an effort to repulse.

I think this will soon become one of the most important issues of our time, given the national or should I say, international revolt against corporate encroachments, against the widespread thoughtless destruction of the environment and against the victimization of weaker but resource-rich nations, including our own, for the sake greater profits for our corporate slave masters.


If you’d like more detailed information about this subject, I invite you to read Unequal Protection: The Rise of Corporate Dominance and Theft of Human rights,” by Thom Hartmann.

Addition information can be found (full text) at The Santa Clara Blues: Corporate Personhood versus Democracy, by William Meyers.
Here's a important (and entertaining) documentary. If you have not yet watched it, I'd highly recommend it.

Tuesday, November 29, 2011

Herman Cain denies 13-year-affair with Ginger White on Wolf Blitzer CNN - His lawyer, however, doesn't deny the allegations - UPDATE

By Patrick

The next bombshell accusation against Herman Cain: Atlanta businesswoman Ginger White claims that she had a 13-year-affair with Herman Cain.

From Fox 5 News Atlanta:

ATLANTA, Ga. - An Atlanta businesswoman is breaking her silence, claiming she has been involved in a 13-year-long affair with Republican presidential candidate Herman Cain.

Over the Thanksgiving weekend, FOX 5 senior I-Team reporter Dale Russell sat down with Ginger White, who had a story to tell.

“I'm not proud,” White told Russell. “I didn't want to come out with this. I did not.”

White was worried a political tsunami was headed her way. So, she decided to head it off, by confessing she was involved in a 13-year-long affair with presidential hopeful Herman Cain.

“It was pretty simple,” White said. “It wasn't complicated. I was aware that he was married. And I was also aware I was involved in a very inappropriate situation, relationship.”

Ginger White says she met Herman Cain in the late 90s in Louisville, Kentucky, when as president of the National Restaurant Association, he made a presentation. She was impressed. She says they shared drinks afterwards and he invited her back to his hotel room.

“’I'd like to see you again,’” White said Cain told her. “’You are beautiful to me, and I would love for us to continue this friendship.’”

She says in his hotel room, he pulled out a calendar and invited her to meet him in Palm Springs. She accepted, and she says the affair began.

“He made it very intriguing,” White told FOX 5. “It was fun. It was something that took me away from my humdrum life at the time. And it was exciting.”

She says he gave her his newly-published book, Leadership is Common Sense, and he wrote: “Miss G, you have already made a 'big difference!’ Stay focused as you pursue your next destination."

She says during the next 13 years, he would fly her to cities where he was speaking and he lavished her with gifts. She says they often stayed at the Ritz Carlton in Buckhead and dined at The Four Seasons restaurant. She says he never harassed her, never treated her poorly, and was the same man you see on the campaign trail.

“Very much the same, very much confident, very much sure of himself,” White said, describing Cain. “Very arrogant in a playful sometimes way. Very, ah -- Herman Cain loves Herman Cain.”

When his new book, CEO of SELF, came out in 2001, she says Cain once again autographed it for her writing, "Friends are forever! Everything else is a bonus."

When asked if it was fair to say the relationship is going on even now, White said, “I think it is safe to say that after this interview, that will be the end of it. Yes, we have a friendship now.”

She says the physical relationship ended about eight months ago, right before Cain announced he was running for president. But the communication did not. When we asked for any corroborating evidence, she pointed us to her cell phone contacts. One name: Herman Cain.

She showed us some of her cell phone bills that included 61 phone calls or text messages to or from a number starting with 678. She says it is Herman Cain's private cell phone. The calls were made during four different months-- calls or texts made as early as 4:26 in the early morning, and as late as 7:52 at night. The latest were in September of this year.

“We've never worked together,” said White. “And I can't imagine someone phoning or texting me for the last two and a half years, just because.”

We texted the number and Herman Cain called us back. He told us he "knew Ginger White" but said these are "more false allegations." He said she had his number because he was "trying to help her financially.”

She says she planned on keeping the relationship a secret while Cain made his run for the White House until she and her family watched reports of different women who had accused Herman Cain of sexual harassment. She says she was not surprised by the allegations, but was bothered by the way Cain fought back, attacking the woman, including during an appearance on Late Show with David Letterman.

“It bothered me that they were being demonized, sort of, they were treated as if they were automatically lying, and the burden of proof was on them,” White said. “I felt bad for them.”

We received a phone tip from someone who knew Ginger White. That person claimed Ms. White was having an affair with Herman Cain. The tipster also called a number of other national media outlets who reached out to her. White told FOX 5, she felt trapped.

“I wanted to give my side, before it was thrown out there and made out to be something filthy,” said White. “Some people will look at this and say that is exactly what it is. I'm sorry for that.”

Wolf Blitzer already confronted Herman Cain today on his show with the allegations, and Cain denied them, saying:

"I wanted to get out in front of it, I have nothing to hide,
I have done nothing wrong"


Late this afternoon, Cain’s attorney, Len Wood, sent FOX 5 the following statement, which curiously is NOT a denial:

"Mr. Cain has been informed today that your television station plans to broadcast a story this evening in which a female will make an accusation that she engaged in a 13-year long physical relationship with Mr. Cain. This is not an accusation of harassment in the workplace – this is not an accusation of an assault - which are subject matters of legitimate inquiry to a political candidate.

Rather, this appears to be an accusation of private, alleged consensual conduct between adults - a subject matter which is not a proper subject of inquiry by the media or the public. No individual, whether a private citizen, a candidate for public office or a public official, should be questioned about his or her private sexual life. The public's right to know and the media's right to report has boundaries and most certainly those boundaries end outside of one's bedroom door.

Mr. Cain has alerted his wife to this new accusation and discussed it with her. He has no obligation to discuss these types of accusations publicly with the media and he will not do so even if his principled position is viewed unfavorably by members of the media."

Herman Cain is as guilty as a puppy sitting next to a pile of poo. His fifteen minutes are over.

I think he should start a pizza chain next after the end of his political career. He has this wonderful "I lie to you straight to your face and don't bother about it" attitude which is just great for selling pizzas. Oh, wait...





Ginger White tells her story on Fox 5 News:

Monday, November 28, 2011

Weekly Roundup, November 21-27, 2011

by Blueberry T

Tuesday, November 22, 2011

The Birth of Corporate Personhood

Nomad offers us a primer on the rise of the corporation in the United States. Given the Founding Fathers’ deep distrust of abuses of power by the East India Company and its connections to British politicians, it is especially ironic that the GOP continues to base many of its claims on the Founders, and even more ironic that the Citizens United decision undoubtedly has those same Founders turning over in their graves. Originally, corporations were formed to carry out strictly limited public functions, and were barred from making any political contributions. Once the corporate purpose was fulfilled, the corporation disbanded. This model drastically changed in the 19th Century, especially with the rise of the railroads from which the modern corporation evolved. The First Transcontinental Railroad amassed tremendous wealth and power, not the least because it gained rights to public lands and destroyed the Native American culture that stood in the way of the railroad. This corporation was also a case study in corruption, including speculation to manipulate stock market prices. Hmm, that sounds almost like current events in the oil industry.

Wednesday, November 23, 2011

Corporate Personhood, Part 2

Nomad continues his excellent report on the rise of corporations. The industrialization of America concentrated people, and poverty, in the Northern cities, with a huge disparity in wealth between workers and the railroad barons and bankers. At the same time, the South’s economy was dominated by cotton produced by slave labor – a huge competitive advantage – and included direct trade with Britain, leaving Northern manufacturers and merchants with limited access to this profitable enterprise. In the midst of growing tension, the Supreme Court issued one of the worst decisions in U.S. history, the Dred Scott decision, which foreclosed any possibility of a political settlement of the growing rift between North and South. The Civil War allowed for the rise of corporate financiers and its aftermath, with the destruction of the South, led to further consolidation of power among the Northern industrialists. This set the stage for further expansion of corporate influence in government.

Thursday, November 24, 2011

Happy Thanksgiving!

Patrick put together quite an interesting potpourri for the U.S. holiday, starting with some amazing photos and video of polar bears playing with dogs! (I am thankful that this does not appear to be analogous to cats playing with mice…) More treats: Leonard Cohen’s new song, Kristan Cole’s new breast implants (now we know where the Dairygate $ went), a bizarre Thanksgiving missive from Sarah Palin, and some comraderie at OWS on Thanksgiving.

Saturday, November 26, 2011

Police Abuse vs. “You are free. You will live free. You will die free.”

After reading this post from guest Mike Czech, I don’t know whether to laugh or cry. The video clip of Danny Shine with his megaphone brilliantly shows how utterly ridiculous and hypocritical these police actions are that we are witnessing daily – he is really articulate and spot on. The quote that’s highlighted is inspiring, and he also points out the continual barrage of messages in favor of commercialism and stirring up fear. Then, of course, we witness more scenes of protesters in the U.S. being punched, shoved, pulled by their hair and otherwise assaulted – by the police. The police are our own worst enemies, and eventually they will find out that they are their own worst enemies, as well. Capping it off, based on its recent decision regarding police entry into private homes without a warrant, it sounds like three of the five justices on the Indiana Supreme Court failed their courses in constitutional law. Hopefully this decision was appealed.

Sunday, November 27, 2011

New Occupy Anthem, Plus Emma Sullivan’s Right to Free Speech

This rollercoaster week continues, with inspiring music and video counterbalanced by yet another attack on free speech, this time by Kansas Governor Sam Brownback’s office. Chloe Cornelius is a new talent with a great voice, a great message and the savvy to put them together on youtube – very inspiring! The Brownback blowback will hopefully make him look like a petty fool, as his office tries to limit the free speech rights of a high school student. For those who thought the Republicans liked the First Amendment, they do when they are the ones speaking, but not so much for those who disagree. Patrick does a great rundown of key SCOTUS rulings on this topic. Let’s give Emma the support she’ll need to hold strong amid all the pressure she will undoubtedly feel in the coming days.

Some Comments and Links:

Leadfoot (on cancellation of Bristol’s “reality TV” show): Shocker. You mean nobody wants to watch a racist, homophobic, tragically plastic, teenage mother of 2 pretend to be normal on TV?

Sunnyjane shared this pearl of wisdom: If both of us were the same, one of us would be unnecessary.

[And this] I’ve created a new and exciting dish for your Thanksgiving menu.
Presidential Candidate Soufflé, GOP Style
Into two cups of Bachmann’s Chopped History and Wifely Submission, stir a generous tablespoon of Santorum Sauce (Google it if you have to) and sauté until translucent. Add half a cup of Romney’s Flip-Flop or Lie Seasoning and three tablespoons of Gingrich’s Family Values Special Sauce. Whisk vigorously until you’re ready to scream.
Toss together with two teaspoons of Cain’s 9-9-9 Tax Plan & Sexual Harassment goop, three teaspoons of (no, use two…forget the third one) Perry’s Smaller Government Spices, a quarter cup of Paul’s Libertarian Logic (paying taxes is voluntary), and just a dash of Huntsman’s Common Sense (any more than that and the whole thing might explode).
Pour a generous amount of Failed Reaganomics into the whole thing and top it off with a healthy spritz of Lt. Pike’s Essentially a Food Product Pepper Spray.
Cook in a hot oven until you can no longer stand the stench, take it out and throw the whole thing in the trash. Warning: Do not pour it down the garbage disposal, as it has a tendency to corrode home plumbing.

JCos: Palin, who again mentions Tri-G's birth in her Thanksgiving message, as if it happened last week, fails to point out that in the hours prior to the announcement of Tri-G's birth, if you believe she gave birth at all, she did everything in her power to murder him. Pardon me, if I'm being too subtle.

Psalm023: It's a See-See-See the wonderfulness of me. Very disturbing and sad. Who keeps harping about what someone may or may not have said in regards to "he never should have been born". In all my life, I have never heard anyone say such a thing to any mom, ever. It appears that she is projecting her own feelings on to anonymous others.

NomadicView: Seems like she is trying to create a strawman thing. Nobody every said TriG shouldn't have been born- but a lot of people have said that TriG couldn't have been born the way Palin claims… The great tragedy, as far as I can see, is Sarah Palin is apparently surrounded by crowds of people who claim they love her, but not one them love her enough to tell her the truth that she need to find a therapist and commit to weekly sessions hashing whatever issues she has about needing attention.

Here is a good article picked up from Twitter:

The Last Word (with H/T to wooljunkie): Pete Seeger and Bruce Springsteen, leading the crowd singing “This Land is Your Land” at President Obama’s inauguration.

Sunday, November 27, 2011

"I'll Occupy" by Chloe Cornelius - The song of the OWS-movement / 18-year-old Emma Sullivan embarrasses Kansas Governor Sam Brownback - UPDATE!

By Patrick

Never say that ordinary, unknown citizens cannot achieve great things. They can, if they know how to use the internet!

The internet, this amazing tool which is available for all of us, reveals its power every day. Two examples:

Chloe Cornelius is a young woman who previously posted a few self-made music videos on youtube which got very little attention. However, these videos already proved that she has very good skills for example as far as singing and video editing are concerned. Now she combined her skills and created a new powerful video which has already received quite a lot of attention - the "hymn" for the OWS-movement: "I'll Occupy" (full title: "I'll Occupy" Recruitment Song: The 99 is Pissed and We Will Not Be Dismissed!).


Hopefully this excellent clip will be spread far and wide!


Then there is the huge story regarding a young teenager from Kansas which descended over the last few days like a thunderstorm on Kansas-Governor Sam Brownback.

The young woman, 18-year-old Emma Sullivan, committed a serious crime: She tweeted.

She had about 60 followers on twitter, when she sent out the following tweet:

Governor Brownback can now change his name to Governor Blowback.

"The Wichita Eagle" reported what followed next - America has the next "first Amendment" issue (they follow in quick succession these days):

On Tuesday, Sullivan was called to her principal’s office and told that the tweet had been flagged by someone on Brownback’s staff and reported to organizers of the Youth in Government program.

The principal “laid into me about how this was unacceptable and an embarrassment,” Sullivan said. “He said I had created this huge controversy and everyone was up in arms about it … and now he had to do damage control.

“I’m mainly shocked that they would even see that tweet and be concerned about me,” she said. “I just honestly feel they’re making a lot bigger deal out of it than it actually was.”

Sullivan said the principal ordered her to write letters of apology to Brownback, the school’s Youth in Government sponsor, the district’s social studies coordinator and others.

Karl Krawitz, the school principal, did not return calls or e-mails Wednesday. Brownback spokeswoman Sherriene Jones-Sontag said her office had forwarded a copy of Sullivan’s tweet to organizers of the school-sponsored event “so that they were aware what their students were saying in regards to the governor’s appearance.

“We monitor social media so we can see what Kansans are thinking and saying about the governor and his policies,” Jones-Sontag said.

“We just felt it was appropriate for the organizers to be aware … because of what was said in the tweet.”

Sullivan, 18, said she posted the comment because she doesn’t agree with Brownback’s policies, particularly recent cuts in state aid to schools. She is a registered Democrat.

“Some of my friends were joking about what they’d really like to say (to Brownback), so I just took out my phone” and tweeted, she said. “I guess it was kind of a heat-of-the-moment thing.”

She didn’t think much about it, Sullivan said, because her Twitter page – @emmakate988 – had only about 60 followers and was “pretty anonymous.”
Brownback’s office discovered the tweet via a Web search for his name, officials said.

Niomi Burget, Brownback’s scheduling secretary, e-mailed a screen shot of the tweet to the Youth in Government sponsor at Shawnee Mission East, writing: “I don’t know if this was someone with your group, but thought if it was, you might want it brought to your attention.”

The Shawnee Mission school district was not in session Wednesday. Leigh Anne Neal, spokeswoman for the district, said that district officials were not aware of the incident, but would look into it after the Thanksgiving break.

“In general,” she wrote, “students on school-sponsored field trips, in which they are representing the school, would be expected to conduct themselves in accordance with school district policies, including use of electronic devices. Students may express their personal beliefs, views, and opinions, as long as they do so appropriately and in accordance with school policies.”

So is the first amendment really just a privilege? Is free speech for a young student dependent on whether the statement in question is "appropriate" and "in accordance to school policies?"

Free speech is never without any limits, not in the USA nor anywhere else. Wikipedia gives a very good overview showing how the first amendment has been interpreted by courts in the past. However, if one takes a look at the mentioned court cases within the section "Speech critical of the government" it becomes perfectly clear that public or government authorities have no right whatsoever in restricting Emma Sullivan's freedom of speech, and that school policies certainly cannot rule with regard to the question whether a student is entitled to criticize her Governor or not. It is long established that the First Amendment also applies to local government.

On April 26, 1968, Paul Robert Cohen, 19, was arrested for wearing a jacket bearing the words "Fuck the Draft" inside the Los Angeles Courthouse. Inside the court room he had the jacket folded over his arm, only after exiting the room he put the jacket on and was then arrested. He was convicted of violating section 415 of the California Penal Code, which prohibited "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by] offensive conduct,"and sentenced to 30 days in jail.

The conviction was upheld by the California Court of Appeal, which held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace."

"Offensive conduct" - I guess that this was also the reason why the Governor's staff complained to Emma Sullivan's school.

The California Court of Appeal got a slap in the face by the US Supreme Court:

The Court, by a vote of 5-4, per Justice John Marshall Harlan II, overturned the appellate court's ruling. First, Justice Harlan began by emphasizing that this case concerned "speech," and not "conduct," as was at issue in United States v. O'Brien. Harlan then stated that any attempt by California to abridge the content of Cohen's speech would no doubt unconstitutional except in a few instances, like, for example, if California was regulating the time, place, or manner of Cohen's speech independent from the content of the speech.

Second, Harlan also expressed the concern of the Court that section 415 was vague and did not put citizens on notice as to what behavior was unlawful. Indeed, the words "offensive conduct" alone cannot "be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created."

Third, the mere use of an untoward four-letter word did not place the speech into a category of speech that has traditionally been subject to greater regulations by the government, as in Roth v. United States, for example. Similarly, Harlan and the Court refused to categorize the speech at issue as a "fighting word" under Chaplinsky v. New Hampshire, because no "individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult." Finally, the Court was unwilling to give credence to the idea that the government could suppress the type of speech at issue here in order to protect the public at large.

Having discarded what was not at issue in this case, Harland stated that the issue was "whether California can excise, as "offensive conduct," one particular scurrilous epithet from the public discourse, either upon the theory ... that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary."

The states could not. As to the first theory, the Court stated that it was not presented with any evidence suggesting that the speech was likely to cause an incitement to violence. As to the second theory, the Court stated that while it was a closer call, the rationale was not sufficient.

Specifically, Harlan, citing Justice Brandeis' opinion in Whitney v. California, emphasized that the First Amendment operates to protect the inviolability of the marketplace of ideas imagined by the Founding Fathers. Allowing California to suppress the speech at issue in this case would be destructive to that market place of ideas.

"To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance," Justice Harlan wrote. "These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength."

"[A]bsent a more particularized and compelling reason for its actions," Harlan continued, "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense." In his opinion Justice Harlan famously wrote "one man's vulgarity is another's lyric."

Thus, Harlan’s arguments can be constructed in three major points: First, states (California) cannot censor their citizens in order to make a “civil” society. Second, knowing where to draw the line between harmless heightened emotion and vulgarity can be difficult. Third, people bring passion to politics and vulgarity is simply a side effect of a free exchange of ideas—no matter how radical they may be.

The USA still has a number of freedoms that most people in the world can only dream about. However, these freedoms are now under attack virtually on a daily basis. Americans should speak up against these abuses of power which have become commonplace, and Emma Sullivan should definitely not apologize to the Governor or anyone else for her tweet. It's time for Americans to fight for their rights. The internet is a very effective tool for this fight, and we see the first attempts in the USA to restrict internet freedom as well. The battle to preserve the freedom of speech and other rights by the US Constitution is only beginning.

Fortunately, Emma Sullivan is rethinking whether she should write the apology - for which her school principal even gave her "talking points":

Brownback's office, which monitors social media for postings containing the governor's name, saw Sullivan's post and contacted the Youth in Government program. Soon, she was in the principal's office for an hourlong scolding and a demand she send Brownback an apology letter.

The principal, who later called the situation a "disciplinary issue" that was not a public matter, even suggested talking points for the letter she was supposed to write.

Many have urged the 18-year-old to not write the letter, suggesting instead that Brownback or his representatives need to apologize to Sullivan for reporting her to school officials.


Sullivan, who plans to study psychology next year at the University of Arkansas, said Friday she is "leaning toward" not writing the apology letter that's due to the principal by Monday.

"The part I'm most nervous about is going back to school and facing him," she said. "After learning more and kind of talking to people about it and seeing how much support I have, that definitely helps."

Emma Sullivan posted her email address on twitter:

Write to her and give her your support!


PLEASE RE-TWEET THIS STORY - Links to my tweets can be found in the sidebar at the right or in our Politicalgates twitter account.



"Think Progress" pointed to a US Supreme Court case that established that students have a freedom of speech at their schools unless it is "disruptive of school activities." The US Supreme Court decided in 1969:

As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.

We have the first TV-interview by Emma Sullivan - she states that she has not decided yet whether she will write a letter of apology to Governor Sam Brownback:



Great news! Emma won't apologize - just in, via New York Times:

KANSAS CITY, Mo. (AP) — A Kansas teenager who wrote a disparaging tweet about Gov. Sam Brownback is rejecting her high school principal's demand that she apologize.

Emma Sullivan told The Associated Press on Sunday that she's not sorry and an apology letter wouldn't be sincere.

Saturday, November 26, 2011

Law Enforcement Excess and Danny Shine's Megaphone

by Mike Czech
"Isn't it amazing that when people are in a uniform they completely lose their minds." Danny Shine
Ladies and gentlemen, The true thing is I know we are creating a scene but creating a scene is not illegal. You are born free, you will live free and you will die free. You are allowed to make a scene, you are allowed to scream for joy. You are allowed to complain. You are allowed to cry.You're allowed to love people. You're allowed to hug people. and we are starting to live in a world where we are staring to feel scared, starting to forget how divine and special we are as human beings. Every single one of you is the only example of you that will ever exist and there's not a single authority in this world- especially private security men- who can tell you how to behave at any time, at any place and anywhere. You are free. You will live free. You will die free. The only chains that exist are in your mind. You can do anything you want if you put your mind to it.
There seems to be a trend I've noticed these days that law enforcement officers seem to make up rules as they go along. I was watching the NYPD earlier telling demonstrators they were not allowed to be in the park making noise, despite the fact that judges had given them that right (between certain hours). The gang of police came en masse and confiscated all the drums and music instruments and refused to return them. When it was pointed out to them they had no legal right to do this, they suddenly switched to another made up law that they weren't allowed to bang their drums on Thanksgiving. Lawyers were on hand to communicate with the police but it didn't really seem to matter at all. And this is happening all over the country on a daily basis.

Unlike the British police in the video above, the American versions seem positively eager to use pepper-spray or batons to any resistance. Not as a last resort. Not when all else has failed. It appears to have suddenly become the first option.

It is really astonishing and disturbing to watch brute force in action, law enforcement acting lawlessly. Here's an example. I don't know the full details about why the police are arresting this girl - and that's part of the problem too- but, just looking at what the video shows us we need to ask: is this really the proper conduct for a public servant? Is this really what we expect from the people we have chosen to uphold the law?

"Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us."- William O. Douglas

Hats off to Mr. Danny Shine for his courage in speaking up. However I am not sure if that type of sarcastic intelligence and those kinds of pleas for the respect for the law would really work in the USA anymore.

"What you need is sustained outrage..there's far too much unthinking respect given to authority." Molly Ivins
"We must not confuse dissent with disloyalty. When the loyal opposition dies, I think the soul of America dies with it." - Edward R. Murrow
But there's one point these policemen have failed to consider, for every act of brutality and excess they commit (especially in front of the thousand virtual eyes of cameras) they are giving birth to countless new radicals.

Open disregard for justice and human dignity generally has that effect. The court justices, who should be there to prevent this sort of thing from happening, are either strangely silent or siding inexplicably with authorities. For example, in May of 2011, Indiana's Supreme Court declared in a 3-2 decision that citizens have "no right to reasonably resist unlawful entry [to their homes] by police officers." Say what? That's right. look at this news report:
..Justice Steven David, writing for the court, said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry."We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."
So, in effect, when being violated by authority, citizens must simply lay back and enjoy it. It's a problem only if you resist. There's really no legal justification for the decision. The Constitution is absolutely clear about this issue. It require no judicial interpretation at all. Wikipedia states:
The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonablesearches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and arrest should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it.
The dissenting judges in the Indiana court wrote this scathing rebuke :
In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.
It's really nothing short of an overthrow of the American Republic and all it has stood for. Every American should be outraged by these assaults on the foundations of liberty.
Be Sweet, please tweet and retweet.!/ANomadicView/status/140494549188485120