One of the best and the brightest happens to be Ilya Shapiro. With his sterling credentials, surely he must qualify. At the end of my piece today, I will compare his credentials to mine. But for now, I’ll concentrate on two paragraphs of a scholarly article he’d published in the John Marshall Law Review, which were quoted in the Chicago Tribune on 12-22-11. In their entirety:
QUOTE:
While it’s true that corporations aren’t human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights.
It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups.
:UNQUOTE.
Now, I will copy, interspersing my comments [NOTE: All highlights in this post were added by me]:
QUOTE:
While it’s true that corporations aren’t human beings, that truism is constitutionally irrelevant…
COMMENT:
Actually, corporations are constitutionally irrelevant, for nowhere – not even once – within the text of the constitution itself (or in its amendments) does the word “corporation” appear.
QUOTE:
…because corporations are formed by individuals…
COMMENT:
…”formed by individuals” who must apply to the state for a corporate charter, risking revocation if found in violation of that charter.
QUOTE:
..as a means of exercising their constitutionally protected rights.
COMMENT:
Really? I thought corporations were “formed by individuals as a means of” making money. The Constitution (and here I personify) didn’t think it was necessary for corporations to be formed as a means for individuals to exercise their constitutionally protected rights. That’s why a checks-and-balances system of federal government was set up, with pertinent amendments added later.
If anything, corporations are formed by groups of individuals in an attempt to override the wishes, desires, and competitive effectiveness of other individuals or groups of individuals. To limit abuse of this focused power, our system opposes monopolies.
QUOTE:
When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights.
COMMENT:
I’m surprised Mr. Shapiro would use the term “legal fiction” – for that is a term I would have used. Truer to his intentions, Shapiro should perhaps have written “legal entity” or “legal umbrella.” By using the term “legal fiction” (remember, the word “fiction” means “false”), this author undermined his own case. For how could anyone possibly argue that something which is false is worthy of constitutional rights?
Ilya Shapiro chose to overlook the obvious point that, “When individuals pool their resources and speak under the legal fiction of a corporation, they… [in reality, do] lose their rights.” There could very well be shareholders or even (minority) members of the board of directors who (for instance) might be Democrats who would be having their own right to political preference overshadowed by a corporation deciding to support a Republican presidential candidate.
QUOTE:
It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents.
COMMENT:
Ilya Shapiro is guilty of overreach here, to make his point (which I believe to be a silly point, indeed). As a lawyer, Shapiro must surely know the falsity of such a claim – “It cannot be any other way”…indeed! It can “be” whatever the courts or the Congress deem it to be. His claim is simply from a lawyer trying to laughingly dismiss even the thought of a challenge.
It’s not necessary to cite violation of corporate rights to prevent such seizures. The shareholders of that entity could rise up in a class action lawsuit, under the terms of the Fifth or Fourteenth Amendments, by claiming their property was taken from them “without due process of law.” The corporation may well own that property directly, but the shareholders (as owners of the corporation) own that property albeit indirectly.
QUOTE:
The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there.
COMMENT:
This wasn’t a very good choice for an example, since Shapiro felt he had to make the mayor’s action truly despicable by adding “by fiat and without compensation.” In addition, I have to wonder why Shapiro feels the need to “ridiculize” his scenario by suggesting the mayor could take over the entire Rockefeller Center simply because he felt it necessary to move his office, an office which doesn’t require the whole Center.
First of all, at issue isn’t a “world where corporations are not entitled to constitutional protections.” By saying “world” where he meant “country,” I must conclude Shapiro lapses at least occasionally into sloppy writing.
Second, if the mayor were to seize that Center, he’d be seizing assets belonging to individuals. Yes, the corporation would be taking a hit, but so would its stockholders. The defense against the mayor here should be to invoke the individuals’ rights to their property instead of the corporation’s.
QUOTE:
Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations.
COMMENT:
Let’s take the example of media corporations. “Speech” generated by a media corporation is a commodity produced by that entity. That commodity was prepared with the idea of maximizing profits. Should the government try to censor that speech, it would in effect be seizing that commodity and substituting its own of dubious value.
However, it’s not necessary to cite violation of corporate rights to prevent such a seizure (and, therefore, loss of value). The shareholders of that entity could rise up in a class action lawsuit, under the terms of the Fifth or Fourteenth Amendments, by claiming their property was taken from them “without due process of law.”
QUOTE:
In short, rights-bearing individuals do not forfeit those rights when they associate in groups.
COMMENT:
Rights-bearing individuals should not have to forfeit their rights or have them diminished due to the machinations of groups of other rights-bearing individuals. That’s why we have social mechanisms in place to level the playing field. But, somehow, I don’t think Ilya Shapiro is much interested in leveling the playing field.
Additional Analysis
“A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members” - *
This is a good starting point, for it makes clear that corporations are not simply (in Mr. Shapiro’s words), “…formed by individuals as a means of exercising their constitutionally protected rights.” These individuals already have rights which they can exercise to their hearts’ content, with or without being incorporated. But, as cited above, the corporation has rights “that are distinct (therefore, different) from those of its members.”
The Tenth Amendment doesn’t deal with the powers, rights, and relative standing of various “groups” of people (including corporate groups). It states quite simply: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth deals with three entities:
· “the United States” – referring to the national government;
· “the States” – referring to local governments;
· “the people” – referring to all US citizens (please note: no further subdivisions are mentioned – corporate or otherwise).
I could even segue from the Ninth Amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Mr. Shapiro believes that “corporations are…entitled to constitutional protections [that is, ‘rights’].” But (again) corporations are not mentioned at all within the Constitution nor are any rights enumerated for them in particular.
Corporations can’t share the same rights as human beings who are US citizens, simply because corporations cannot be citizens. And not even Mr. Shapiro is pretending that they are – thank God! The Supreme Court was long ago persuaded to declare that corporations are persons under the meaning of the Fourteenth Amendment. But so far, SCOTUS has never pronounced this death sentence upon the Republic: “Corporations are citizens…therefore they can vote in elections.”
And why not? If a corporation is to be deemed a citizen, why shouldn’t it have the right to vote? Indeed, why not allow wealthier corporations to have a vote in proportion to their wealth? Not all people are treated equally in this country, anyway. For instance, the retarded and felons are denied the right to vote. So why should corporations (which are really just another form of citizen) be denied the maximum exercise of their powers?
But of course I digress
QUOTE: Ilya Shapiro: Senior Fellow in constitutional Studies and Editor-in-Chief, Cato Supreme Court Review…He holds an A.B. from Princeton University, an M.Sc. from the London School of Economics, and a J.D. from the University of Chicago Law School (where he became a Tony Patiño Fellow). Shapiro is a member of the bars of New York, the District of Columbia, and the U.S. Supreme Court. He is a native speaker of English and Russian, is fluent in Spanish and French, and is proficient in Italian and Portuguese.:UNQUOTE.**
Wow! What can I say? Ilya Shapiro appears to be a very intelligent fellow indeed. Which isn’t to say, though, that he’s intellectually honest or moral in any way. In fact, he seems exactly like the type of apparatchik who could have written the Torture Memos for the Bush Administration; the kind of man who, if followed with any degree of seriousness, could lead this country into a wide variety of messes.
The fact that he’s part of the Cato Institute, a fascist front if ever there was one, is also cause for concern. Groups like Cato exist to lend an aura of respectability to genuinely loathsome ideas and people. Billionaire Charles Koch, much in the news, comes readily to mind:
QUOTE: [Charles] Koch provides financial support for a number of libertarian organizations, including the Institute for Humane Studies and the Mercatus Center at George Mason University. He also co-founded the Cato Institute.:UNQUOTE.***
According to its website, the Cato Institute promotes “individual liberty, free markets, and peace.” This is what I think they really mean:
· We promote individual liberty, while holding fast to the idea that superior people must hold power, unrestricted by common men;
· We promote free markets, which means a cut-throat capitalism unaccountable to anyone but its own barons;
· We promote peace, until it becomes time for the occasional necessary war to boost profits and thin an overpopulating herd.
Who are these people kidding? Like we don’t really know what they’re up to?
Such silk-gloved villainy begs to be countered by plain-spoken folks like me who are willing to think through their bull shit. Unlike Mr. Shapiro, who speaks six languages, I only speak one – but I speak it plainly and honestly, with no ulterior motives, no master to serve, no hidden agenda. I do not have an advanced degree, having only an Associate’s degree to my credit. Frankly, I found college to be boring and a colossal waste of time.
But that doesn’t mean I can’t think or see through lies and deceptions. For I am a very patient person – that is, until I figure out how I’m being lied to. Then I become not so patient. As should you.
Steven Searle for US President in 2012
Founder of The Independent Contractors’ Party
“We must stand united against the Best and the Brightest who think they’re so much better than we are.”
Contact me at bpa_cinc@yahoo.com
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