Friday, June 21, 2013

Constitutional amendment would strip churches of rights under law

They are at it again, this time in the US Senate.

I wrote at length in 2011 of US Rep. Jim McGovern's (D.-3rd District, Mass.) proposed "People's Rights Amendment" to the US Constitution that would define "person" or any part of "the people," as the Constitution uses the term, to mean only human beings. 

That means, as McGovern stated explicitly, that any kind of corporation, including incorporated churches (which almost all are), would have no standing in courts as possessing rights under the law. So if, for example, your city government wanted 30 feet of your church's property to widen a road, the city can just show up one morning and start bulldozing. As the church is a legal non-entity regarding property rights, the legal doctrine of eminent domain would not apply. 

And your church would not be able to contest the taking in court since, as a Constitutionally-defined non-person, the church would have no legal standing to file a suit, anymore than could a bird whose nest was destroyed by the bulldozers.

Before you say I am going overboard, go to the 2011 post and read the analyses of Constitutional scholars I quoted at length, especially UCLA Law School Prof. Eugene Volokh, one of the most-frequently cited legal scholars in America (including by US Supreme Court justices). 

Well, as we used to say in the Army, "BOHICA!" - Bend Over, Here It Comes Again. U.S. Sen. Jon Tester (D.-Mont.), is sponsoring essentially the same amendment in the US Senate, though without the Leninist title McGovern gave his version. Senator Chris Murphy (D-Conn.), is co-sponsor.

Tester's web page about the amendment is here.

The full text of the resolution to Congress proposing the amendment is here: Tester's Constitutional Amendment.

Here is Prof. Volokh's commentary on the Tester amendment, with a key phrase boldfaced and super-sized.
The proposed amendment would authorize Congress, states, and local governments to, for instance, (1) restrict what most newspapers publish, (2) restrict what most advocacy groups, such as the ACLU, the Sierra Club, and the NRA, say, (3) restrict what is said and done by most churches, and (4) seize the property of corporations without just compensation. (It might also allow restrictions on the speech of unions, depending on whether they are seen as “corporate entities.”) 
Nearly all major newspapers and magazines are owned by corporations; the same is true of book publishers, movie studios, record labels, and broadcasters. Indeed, if you want such entities to be able to raise money for their operations through the stock market, you have to have them be organized as corporations. Likewise, most nonprofit organizations are organized as corporations — that, too, makes sense, since it makes sense to have the ACLU run as a corporate entity rather than as a sole proprietorship owned by one person, or a partnership owned by a few people. Churches are likewise often organized as corporations, sometimes with a special sort of corporate status. 
Under the proposed amendment, all these groups — as well as ordinary businesses — would lose all their constitutional rights. Instead of “strict scrutiny” for content-based regulations of the press or of nonprofit advocacy groups, Congress and state and local governments would be free to impose any restrictions they “deem reasonable.” 
And section 3 will do nothing to reinstate any such rights, because it protects only “the people’s” rights, and “the people” is defined in section 2 to expressly exclude corporations. Nor would section 3 protect corporate-run newspapers or advocacy groups on the theory that restriction those organizations’ speech would deny the constitutional rights of individual reporters or organization leaders. The government would still be freed to restrict those reporters and leaders from speaking using corporate resources, which is to say speaking in the pages of the newspaper or using the offices or assets of the organization. (After all, when corporations speak about elections — the thing that the Senators are, I assume, trying to stop — it is also individual managers who speak using the corporate form; but the argument for restricting such speech is that the managers should speak only using their own resources, not corporate funds.) 
So goodbye, First Amendment protection for the New York Times, CNN, the ACLU, the NRA, and the Catholic Church. Goodbye, any right to just compensation when a corporation’s property is taken — whether the corporation is a large business or a small mom-and-pop company. Goodbye, any rights to due process when a corporation’s property is seized. Goodbye, any protection for corporations (again, even small family-run businesses) from unreasonable searches and seizures, or excessive fines. That’s what Senators Tester and Murphy’s amendment calls for.
So: am I too paranoid, or not paranoid enough?

Here is Tester's own explanation:

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