The Huffington Post

Ben Clements

February 13, 2012

The People’s Rights Amendment recently proposed by Congressman Jim McGovern and backed by Free Speech for People and other groups would reverse the Supreme Court’s decision in Citizens United, reinstate the traditional understanding that corporations are not people for purposes of the Constitution, and restore the power of Congress and the states to regulate corporate spending in elections. Professor Kent Greenfield, in his Huffington Post piece opposes the People’s Rights Amendment as unnecessary because, he says, “corporate personhood” is a “red herring” that plays no role in constitutional analysis or in the Court’s decision in Citizens United. At the same time Greenfield claims that the People’s Rights Amendment is “dangerous” and that by eliminating corporate constitutional rights, it would somehow undermine the constitutional rights of real persons acting in groups or in the setting of a non-profit or commercial corporation. Aside from the internal contradiction in Greenfield’s position (if corporate personhood is a “red herring,” how can its elimination be so dangerous?), his argument mischaracterizes both the reasoning of Citizens United and the purpose and effect of the People’s Rights Amendment.

Corporate Personhood Is at the Core of the Citizens United Ruling

Greenfield insists that corporate “personhood” is a “red herring” that “is neither here nor there in constitutional analysis.” But in support of that assertion, Greenfield refers not to the constitutional analysis that was actually employed by the Supreme Court majority in Citizens United, but, instead to Justice Stevens’ dissent. Greenfield says that under Justice Stevens’ approach, “the outcome in constitutional cases does not depend on personhood but on whether protecting artificial entities benefits real people.” That may be, but, unfortunately, Justice Stevens’ approach was emphatically rejected by the majority in Citizens United, for whom the corporate status as human “speaker” was the beginning and end of the case. For the majority, whether striking down a campaign finance regulation “benefited real people” was beside the point because any distinction that treated the corporate entity differently than real people would improperly discriminate against the corporation as “a disadvantaged person or class.” Once the majority adopted the fiction that a corporation is a “speaker” — constitutionally equivalent to a human “speaker” — no analysis of the effect of the regulation on real people was necessary, because, the Court reasoned, the government may not “impose restrictions on certain disfavored speakers.” It is no surprise then that Justice Stevens devoted much of his dissent to challenging the “majority’s unwillingness to distinguish between corporations and humans,” and to reminding us that corporations “are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

The People’s Rights Amendment Specifically Protects the Constitutional Rights of Groups of Natural Persons

Relying on the erroneous assumption that the People’s Rights Amendment would only protect the constitutional rights of natural persons acting in solitude, Greenfield insists that the Amendment would “cut off rights to groups,” eliminate “freedom of association,” and eliminate freedom of the press, save for lonely reporters distributing “homemade handbills” or orating “from a soapbox.” Greenfield misreads the People’s Rights Amendment. The Amendment specifically states that the Constitution is intended to protect the rights of “natural persons” – plural; it does not distinguish between an individual “natural person” and groups of “natural persons” and it expressly states that it shall not 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… ” All that the People’s Rights Amendment does not protect are contrived constitutional rights of artificial government-created entities: “corporations, limited liability companies, and other corporate entities, created by the laws of any state, the United States, or any foreign state.”

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