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Democracy Amendments

What will the People’s Rights Amendment say and what will it do?

The People’s Rights Amendment will overrule the Citizens United v. FEC case and return the First Amendment to its longstanding purpose as a guarantee of the fullest rights of a free people and the press. The People’s Rights Amendment will overrule the fabrication by activist judges of a “corporate rights doctrine” to defeat democratically enacted laws, and will restore the First Amendment to its meaning and intent for two centuries.  The Amendment will ensure that all people have the most robust freedom of conscience, speech and debate and that a vibrant, diverse press remains free and unfettered, thus strengthening, rather than weakening, democracy.

The Free Speech for People Campaign will work with others to develop specific language for the People’s Rights Amendment. Here is one example of language for the People’s Rights Amendment:

Amendment XXVIII

Section 1.  We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2.  People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3.  Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

What is a corporation anyway? Isn’t it like any other association of people?

A corporation is not just like any other association of people. A corporation is a specific creation of state or federal statute that may only be used for purposes defined by the state or federal statute that permitted the creation of the corporation. While Justice Scalia has claimed that corporations are like other associations of people, this is wrong. “Those who feel that the essence of the corporation rests in the contract among its members rather than in the government decree . . . fail to distinguish, as the eighteenth century did, between the corporation and the voluntary association.”[1]

That distinction has always been true and remains valid now. A corporation is a government-created structure for doing business, and is available only by statute.[2] The structure has state-created advantages (shareholder limited liability, for instance) and disadvantages (taxation of corporate profits and shareholder dividends, for instance) as compared to other structures. Non-profit corporations have other statutory advantages (such as the ability to raise tax deductible money) and disadvantages (such as various compliance requirements and restrictions on political activity).

The corporate legal form remains today not simply an association of people but a pure creation of statute that, unlike associations of people, may or may not be permitted by law. Indeed, a corporation is not fundamentally different now than in 1819 when Chief Justice Marshall writing for the Court explained that a corporation, as a “mere creature of law . . possesses only those properties which the charter confers upon it. . . .”[3] Corporations remain creatures of statute, subject to various government compliance requirements.[4]

[1] Oscar Handlin & Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy, Massachusetts, 1774-1861, 92 & n.18 (New York Univ. Press 1974).
[2] Harry G. Henn & John R. Alexander, Law of Corporations, West Hornbook Series, 14-35 (3d ed. 1981).
[3] Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 636 (1819).
[4] CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 89-91 (1987) (“state regulation of corporate governance is regulation of entities whose very existence and attributes are a product of state law.”).

What about the press?

The People’s Rights Amendment will do nothing to infringe freedom of speech or of the press. The First Amendment clearly prevents government suppression of “the press,” whether a corporation or not, and that is as it should be.

Regardless of whether the New York Times, Fox News, and other media are operated by people using the corporate form, the media are “press” under the First Amendment, and are not subject to restriction of expression or press activities. These corporations that meet the constitutional definition of press, of course will need to comply with laws regulating corporations, just as they do today. It is not an infringement on the freedom of the press to make the New York Times Company or Fox News’ parent corporation file SEC statements, obey securities “black-out” rules about public statements, and comply with other corporate regulations.

The American people, legislatures and the Court all are perfectly capable of distinguishing between corporate-funded campaign electioneering communications and the content, whether political or not, of the press and media. We do not need to pretend that all corporations become “press” whenever their executives want to influence the outcome of our elections or evade regulations.

Can Congress fix it?

Congress can begin to fix the decision by approving a Constitutional amendment proposal and sending it to the States for ratification.

Short of disregarding the Supreme Court’s decision – – which would undermine the Court’s very legitimacy – – Congress cannot overrule the Supreme Court’s interpretation of the Constitution without moving to amend the Constitution. That is why the Constitutional amendment process has been necessary to correct egregiously wrong decisions of the Supreme Court, from deciding that African Americans, “whether emancipated or not,” are not citizens and “had no rights which the white man is bound to respect” (Dred Scott v. Sandford, 60 U.S. 393 (1856)) to deciding that even if women were citizens under the 14th Amendment, they had no right to vote because the Constitution, according to the Court, did not guarantee the right to vote as among the fundamental rights, privileges or immunities of citizenship (Minor v. Happersett, 88 U.S. 162 (1874)).

Congress and the States can and should take many steps short of amendment to make elections more fair and to improve the likelihood that legislatures will reflect the will of the people, from approving public funding mechanisms to eliminating barriers to registration and voting. None of these will be sufficient, however, if we do not correct the Court’s perversion of the First Amendment and the Constitution into a corporate protection device.

What can people do?

The American people can and should overrule the Citizens United decision, and restore the Constitution and fair elections to the people. The way to do that is by enacting and ratifying the 28th Amendment to the Constitution, which we call the People’s Rights Amendment.

Isn’t amending the Constitution to change a Court decision an extreme step?

Whenever the American people have realized that our democracy is threatened, and voting and elections are no longer fair, we have always amended the Constitution to fix it.

Proposing to amend the Constitution is significant but that is how the American people have always sought to perfect our democracy. It has been done 27 times. Even if we don’t count the first 10 amendments (the Bill of Rights) that were enacted at the same time as the ratification of the Constitution in 1789, the American people have amended the Constitution 17 times since then.

Most of these Amendments corrected what the American people understood were improper restrictions on fair elections or the right of all people to participate in self-government on equal terms. The 13th Amendment ended slavery, the 14th guaranteed liberty, due process and equal protection of all, and the 15th guaranteed the right to vote could not be abridged on account of race. With the 17th (1913), the people took back the right to elect Senators, who previously were elected by the state legislatures. With the 19th, the people guaranteed the right of women to vote, overruling the Supreme Court’s view that equal protection of all persons under the 14th amendment did not mean all persons but only men. The 24th Amendment was adopted in 1964 to eliminate the poll tax, which was used to block poor people, often African Americans, from voting. The 26th Amendment in 1971 ensured that the right to vote included men and women age 18 and older.

Here are actions you can take.

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