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Free speech, general welfare, power to tax and national debt

Basic Constitutional Law 101

Part 1 of 4

You are probably surprised at times, as I am, how often many Americans, including some Supreme Court Justices, claim to worship the U.S. Constitution, apparently without having actually read it, or if they had, without having understood it. The purpose of this four-part column, “Basic Constitutional Law 101,” is to provide a remedial catch-up summary of what the Constitution says and means, starting with free speech.

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It is not by coincidence that “freedom of speech” and “free exercise of religion” appear together in the same constitutional provision. What they both protect is your right to have an opinion, a belief, an idea, or a cause, and your right to express it. Your right to express your convictions also extends to the related rights “peaceably to assemble” and “to petition the Government for a redress of grievances.” These four basic rights are intimately related to each other.

Profanity is speech, yes, but it is not constitutionally protected free speech. It doesn’t represent a protected opinion, belief, idea or cause. Hate speech is not protected free speech. It harms others and has no protected place in a constitutional democracy. Shouting “Fire!” in a crowded theater when there is no fire is not protected free speech. Supporting or bribing your elected legislator, office holder or candidate with money is not protected free speech. It is what it is: payment of money. Campaign contribution limits do not limit your right to hold and express your opinions, beliefs, ideas or convictions. It just limits your money. Just because the Supreme Court got it wrong doesn’t mean we can ignore what’s right.

A key question is this: Whose speech is constitutionally protected by the Bill of Rights? The answer, of course, is “people” and “persons.” There is no constitutional requirement that the person be a U.S. citizen. Nor is there any provision for constitutional rights of an artificial legal entity such as a corporation.

The word “corporation” appears nowhere in the U.S. Constitution. Nor is it to be found in the previous writings of Voltaire, Rousseau, Thomas Paine, Franklin, Washington, Adams, Jefferson or any of the framers of our Constitution. The omission of the word “corporation” from the Constitution was intentional. The false argument that corporations are “associations of persons” (i.e. shareholders who are “people”), and therefore must have all the constitutional rights of individual persons, is belied by the fact that corporations practically never ask the shareholders which candidate for election the corporation should contribute to and which they should not.

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The reason the Constitution talks about “persons” is because the framers actually meant “persons” when they wrote “persons.” (Please refer to the Oxford, Webster and American College dictionaries for the definition of the word “person:” A person is “a human being, whether man, woman or child.” No mention of corporations.) In constitutional terms, “persons” means “persons” as distinguished from corporations. That’s the whole point. So much for Citizens United (2010). The decision was dead wrong.

At the time of the adoption of the U.S. Constitution in 1787, there was not the slightest doubt that the constitutional definition of “person” was a flesh-and-blood human being. Three-quarters of a century later in 1871, Congress adopted a so-called “Dictionary Act” which indicated that in future legislation, particularly of a business nature, the word “person” could sometimes be interpreted for practical or judicial purposes to include corporations. Needless to say, this did not somehow “amend,” “add to” or “re-interpret” the U.S. Constitution, and it most certainly did not change the scope and meaning of a person’s right to “free exercise of religion.”

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One reason for the confusion about corporate “personhood” may perhaps lie in the fact that a corporation is an artificial legal entity, but one which the legislative and judicial branches of government have given “standing” as that of a “person” to sue and be sued in the courts of law, and also to benefit from some elements of “due process” that actual “persons” are entitled to. But that corporate standing does not derive from the U.S. Constitution. Corporations can do what “We the People” grant them the power to do, but those rights and powers are not at the same level as constitutional rights. The U.S. Constitution is about human rights, not corporate rights. The Supreme Court seems to have missed this distinction entirely.

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How about limits on individual campaign finance contributions of money (as distinguished from opinions, beliefs and ideas) to candidates for federal office? Going beyond Buckley v. Valeo (1974), the majority of the Supreme Court in McCutcheon v. FEC (2014) struck down the aggregate legal limits an individual may contribute over a two-year period to all federal candidates. Justice Roberts intoned that the right to contribute money is the very essence of the First Amendment. Justice Breyer, in dissent, concluded, more accurately, that the majority ruling (5 to 4) “undermines, perhaps devastates, what remains of campaign finance reform.” By failing to consider what the framers actually wrote, and why they wrote it, the Court effectively undermines democracy and furthers plutocracy, that is, rule by wealth.

Social rights and programs are central to the very purpose and being of the United States and our Constitution. It’s why “We the People” decided to “ordain and establish the Constitution.” The U.S. Constitution is all about how to establish a federal government, not how to dismantle it. The Constitution guarantees democracy, not capitalism. If we choose capitalism, it’s our choice to make. But it is not mentioned in or required by the Constitution. It’s a work in progress, seeking balance and a “more perfect Union.”

Social Security, Medicare, Medicaid, and the Affordable Care Act (ACA or “Obamacare”) are constitutional because they serve the General Welfare, that is, the well-being of the American people. Those who object to “welfare” haven’t read the Constitution.

The U.S. Constitution asserts that the very purpose of constitutional government is “to provide for the Common Defense and promote the General Welfare.” It is unnecessary, therefore, to refer to the Interstate Commerce Clause to justify Social Security, Medicare or Affordable Health Care. Yes, these social programs do involve inter-state commerce, but that is irrelevant to their constitutionality, provided they serve the General Welfare.

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The constitutionality of the ACA has absolutely nothing to do with whether the act does or does not mandate a tax. The majority of the Supreme Court seemed to find “Obamacare” by itself to be unconstitutional, but was saved by the fact it incorporated a “tax.” Of course, the Constitution says quite the opposite. In deciding on the constitutionality of the ACA, the Supreme Court reached the right result for exactly the wrong reason.

It is rather the power to tax, not the power to promote the General Welfare, that is constrained by the Constitution. Specifically, “Congress shall have power to lay and collect taxes ... to pay the Debts and provide for the Common Defense and General Welfare of the United States.” (Translation: Congress has the power to tax people, but only if it is for constitutional purposes or to pay for existing debts.)

As to paying those debts, the Constitution asserts: “The validity of the public debt of the United States, authorized by law ... shall not be questioned.” So much for the false, obstructionist debate over “debt ceiling” limits on expenditures and debts already incurred by Congress. Those who would impose debt ceiling limits on existing obligations are asking Congress to violate the U.S. Constitution.

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The Constitution states that “Congress has the Power ... to coin Money (and) regulate the Value thereof.” So much for Bitcoin. Anyone, even a bank, can buy, sell, and invest in baseball cards at any price. But when a bank gives customer dollars for Bitcoin, or carries them as bank accounts, or treats them as assets backing loans and derivatives, or for purposes of window dressing, or for purposes of passing banking stress tests, the bank has effectively coined money, regulated value and endangered the credit worthiness of regular bank customers’ dollar accounts, in violation of the U.S. Constitution. So, why do we tolerate it?

Part 2 next time.

Anthony Piel is a former director and general legal counsel of the World Health Organization.