VII. Is a corporation a person?

(This post is the seventh in the series on corporations--see links below for previous posts. If you like this or other posts, share it with your friends.)

A corporation is a legal person but not a human one.

Unfortunately, the criticisms of Citizens United that attack the idea that a corporation is a human person miss the point and thereby divert attention away from the real need for campaign finance reform. (See my earlier post, The Misguided People’s Rights Amendment.)

A corporation has never been considered to be the same as a human person. There is a difference between a legal person and a human person. Corporations in U.S. law are legal persons, not human ones. This difference is important and negates the attempts to mock Citizens United as affirming that corporations are the same as people.

An example of the distinction between a human person and a legal person was made evident in the U.S. Supreme Court case of Federal Communications Commission et al. v. AT&T Inc., 562 U.S. ____, 131S. Ct. 1177 (2011).

This case began with an investigation of AT&T by the Federal Communications Commission. The FCC sought certain documents from AT&T under the Freedom of Information Act. The Freedom of Information Act states that the Act does not require the disclosure of certain specified kinds of documents. Among those documents that are excluded from the Act’s disclosure requirement are "records or information compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy" -- §552(b)(7)(C).

AT&T argued that, as a corporate person, it had personal privacy rights. Thus, AT&T claimed that it, as a corporation, did not have to disclose records that invaded its personal privacy. The U.S. Court of Appeals for the Third Circuit agreed with AT&T. The U.S. Supreme Court disagreed and held for the FCC.

The Supreme Court’s opinion was unanimous except for the absence of Justice Kagan who did not participate. Justice Roberts, writing for the Court, stated, “’Personal’ ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities” (my emphasis). Thus, the Court held that corporations do not have “personal privacy” for the purposes of the personal privacy exemption in the Freedom of Information Act.

Note particularly that the Court referred to corporations as “artificial entities.” The Court thus has clearly established that there is a difference between human persons and corporate persons.

As we know, Citizens United did not make use of this distinction. Why? Later in this series I will post an examination of that case. In any event, Citizens United handled difficult legal issues that cannot be easily dismissed by incorrectly mocking the Court for saying that a corporation is a human person. The Court is quite aware that a corporation is a legal person, not a human one.

Thus, those jumping on the simplistic bandwagon of “corporations are not people” are shooting themselves in the foot by not addressing the more difficult constitutional issues that Citizens United present. These are difficult issues that require careful thought, not slogans.

_______________________________________

Links to previous posts this series:

Corporations (Part I of series): Introduction—Why We Need To Know About Them (2/3/12)

                II. Corporations: Their Early Beginnings (2/18/12)

                III. Corporations--an Example of Extreme but Conditional Power (7/3/12)

                IV: The First American Corporations--pre-1776 (12/31/12)
            
                V: The Transformation of the American Corporation (2/24/13)         

            VI. A recent example of potential governmental and people power over corporations

Attack the Myth of “Race” and Keep but Modify Affirmative Action

The Chicago Tribune columnist Clarence Page, on May 5, 2013, noted the absurdity of the question on “race” contained in Question 9 of the U.S. Census: “How to update census’ race question.” (See image of Question 9 below.) In addition to checking “white,” or “black, African Am. or Negro,” or “American Indian or Alaska Native,” there are several additional choices that are Asian nationalities or ethnicities. (The term “Negro” will be dropped.) The question not only confuses “race” with ethnicity and nationality, it also implicitly affirms the false idea that “races” exist as biological entities. This lie is not something that the U.S. Government should be perpetuating.

Mr. Page begins the column by noting the confusion of a woman who considered herself “white” but who recently discovered that she had an African-American ancestor. Was she “white” or “African-American”? Her dilemma was published on TheRoot.com. That website also published a short article linking to Mr. Page’s Tribune column: “The Census Race Question Isn't Working.”

While Mr. Page criticizes the old “race” boxes, I did not think his critique went far enough. Thus, I posted the following comment to TheRoot.com article:

Yes, the Census form question on “race” makes no sense. But it needs more revision than you suggest. Genetically, there is no such thing as a “race.” (Even if they existed, most Americans are mixed with one thing or another--as the young “white” woman discovered.) “Races” are not biological realities but are mythical social constructs that falsely impose rigid categories on a continuum. It is a very powerful and harmful myth that we must expose as nothing but a myth. (This does not mean that “affirmative action” has to be ended--the harm that the myth has done needs to be remedied.) Thus, the census question should not ask about anyone’s “race,” but instead should ask, “What ‘race’ or ethnicity do others generally consider you to be?” That gets the information needed to monitor discrimination without affirming the myth. 
--John L. Hodge (author--JohnLHodge.com) 

A reader replied to my comment by noting the harm of affirmative action programs. This is my reply to his reply:

. . . affirmative action does not have to be based solely on color. It should take into consideration other factors and shift its focus to impoverished backgrounds regardless of color, but still address the past adverse effects of racism where appropriate. AA needs to change but not be abandoned.

As I argued in Chapter 5 of my book, How We Are Our Enemy--And How to Stop, the concept of affirmative action should not be abandoned. We cannot ignore the immense harm the false concept of “race” has inflicted on us. It is wrong to close our eyes and just say, “Too bad, but there is nothing we can do now.” Nonetheless, a shift needs to be made from a purely “racial” or gender-based affirmative action to focus more on remedying the effects of poverty and poor education regardless of the color, ethnicity or gender of the victims.

The point is that we can attack the myth of “race” and at the same time find ways to address the immense harm that the myth of “race” has caused and continues to cause.

The parenthetical statement in my comment, “Even if they [races] existed, most Americans are mixed with one thing or another,” is based on a book, DNA USA: A Genetic Portrait of America by Bryan Sykes .

Here is the absurd Question 9 on the U.S. Census Form:

Also see my previous post,  It’s Past Time to Relegate “Race” to History .

Confusing Science and Faith

One sure way to destroy the separation of church and state is to treat science as a “faith.” I caught a Boston Globe columnist making this mistake and today (April 6, 2013) the Globe published my response (page A8):

Don’t confuse science with faith

KEVIN LEWIS (“Uncommon Knowledge,” Ideas, March 31 [Boston Globe]) seems to misunderstand science when he asks, “Could a faith in science similarly guide your values?” The question assumes that faith underlies science in the same way that it underlies religion.

The difference between science, properly understood, and faith is that science looks to experience to challenge and modify its own concepts, whereas faith is adherence to given ideas regardless of experience.

John L. Hodge

Jamaica Plain

As I’ve argued before, the survival and growth of democracy depend on getting religion out of politics. Politics needs to be based on facts (whether certain or probable), reasoned arguments and agreements. Science belongs in politics; faith does not.

_____________________________

Links to the author's related posts and writings:

• Fight Against Religion's Continuing Intrusion Into Politics

• Get Religion out of Politics: Part I
• Get Religion out of Politics: Part II
• What's God Got To Do With It?
• Towards—Or Away From—American Theocracy?
• Dialogues on God: Three Views
• An explanation of why the values of democracy require separation of religion from government is contained in Chapter 4 of How We Are Our Enemy—And How to Stop.
• A thorough analysis of President George W. Bush’s belligerent views connecting God to the United States is contained in Chapter 3 of How We Are Our Enemy—And How to Stop.

VI. A recent example of potential governmental and people power over corporations

(This post is the sixth in the series--see links below for previous posts)

A recent event in Switzerland illustrates the continuing role of government and the people in managing corporate power. On March 3^rd, in a national referendum, 68% of Swiss voters approved a measure that gives corporate shareholders the right to vote annually on senior managers’ pay and appointments. Corporate executives who do not comply with this measure are subject to a penalty of up to three years in jail or the forfeiture of up to six years’ salary. This new measure will be written into the Swiss constitution.

Also in Switzerland, the left-center Social Democrats are pushing another measure that would cap the pay of senior corporate executives at twelve times that of the lowest paid worker. At the moment there is not a likelihood that such a measure will pass, but if it did, it would create a major upheaval in the corporate world. Nonetheless, the threat of such a measure illustrates the power the people of Switzerland can have over their corporations.

The potential danger to Switzerland of measures like these is that Swiss corporations will pull out and incorporate elsewhere, analogous to what happened in the United States beginning in the late nineteenth century when companies sought to incorporate in the states with the fewest restrictions. (See previous post: “V: The Transformation of the American Corporation”.) Corporate executives in Switzerland are making such threats in an attempt to prevent such measures from passing.

For now, however, the newly approved measure will probably have little effect on the location of corporations in Switzerland. Corporations are already drawn to the country by its low taxes, stable politics and business-friendly laws. In other words, Switzerland may be somewhat like the Delaware of Europe. But the measure approved on March 3^rd suggests that this could change.

Switzerland is not alone in seeking greater governmental control over corporate executive pay. Reuters reports, “Brussels agreed [to] a cap on bankers' bonuses last week and countries including the United States and Germany have introduced advisory ‘say on pay’ votes. Britain also wants to give shareholders a binding vote on pay and ‘exit payments’ at least every three years.” (See link below.)

However, the Swiss measure goes further than any of these proposals. In addition to enabling shareholder control over executive pay, the approved measure also requires pension funds to vote in the interest of its members and make their votes public, and also restricts the financial dealings of Board members.

Unlike the ill-advised “People’s Rights Amendment” being circulated in the U.S. (see my earlier post: The Misguided People’s Rights Amendment), the measures taken in Switzerland and under consideration elsewhere target particular problems with corporate power rather than attack corporations as a whole as though they are all alike.

The Swiss measure opens the mental door to consideration of other measures that could regulate corporate financing of elections in the U.S.

_______________________________________

References:

Reuters online: http://www.reuters.com/article/2013/03/03/us-swiss-regulation-pay-idUSBRE92204N20130303

“Executive Pay: Fixing the fat cats,” The Economist, March 9, 2013, p. 64.

Links to previous posts this series:

Corporations (Part I of series): Introduction—Why We Need To Know About                                                   Them (2/3/12)

                II. Corporations: Their Early Beginnings (2/18/12

                III. Corporations--an Example of Extreme but Conditional Power (7/3/12)

                IV: The First American Corporations--pre-1776 (12/31/12)
            
                V: The Transformation of the American Corporation (2/24/13)

V: The Transformation of the American Corporation

(This post is the fifth in the series--see links below for previous posts)

During the second half of the nineteenth century, the American corporation underwent a dramatic change.

The early American corporations, while important, were not going to dominate business. The reason: the existence of a corporation required a specific grant from a governmental body, called a “charter.”

Since a corporation is a legal entity, not a natural one, its existence requires a legal act. “The charter is a grant of authority from the sovereign. It specifies the powers, rights, and duties of the corporation.” (2), p.129.

The nature of that legal act, the charter, changed dramatically toward the end of the nineteenth century. Until this change occurred, charters were granted one by one, by legislative acts, to establish corporations to do particular things. “Approval of a charter was a political issue, involving lobbying, campaign contributions, and worse.” (3), p. 13.

Yet, corporations had an advantage over other business forms. A corporation could raise capital quickly from a wide variety of sources. The purchasers of a corporation’s shares risked no more than the cost of the shares, while they stood to gain from the corporation’s success. The corporation did not need to rely solely on the wealth of a few people. Instead, it could obtain capital from numerous less wealthy sources, and the accumulated amount of this capital could easily exceed that available from one or two wealthy investors. To fund the industrialization of the nineteenth century, such capital was essential.

In the eighteenth century, most corporations were chartered for educational, religious or charitable institutions, or to create municipalities: cities and boroughs. (See the previous post.)  In that entire century, only 335 business had received charters in the U.S. (2), p. 129.

Industry in America began its enormous growth beginning around 1825, not coincidentally the year the Erie Canal was completed. Transportation and banking infrastructure were essential to this growth. Railroads began to expand, eventually connecting the Atlantic and the Pacific coasts. Banks went from small clubs of merchants providing credit to one another to chartered institutions that were essential players in the industrial expansion. The chartering of corporations one by one was a clumsy process that needed streamlining to keep up with and expand this growth.

This need was met by state legislatures, which, beginning around 1850, began to replace the one-by-one chartering process with general laws that simply required that a corporation can be created by filling out and filing the appropriate forms. “Under a general corporation law, anybody who wanted to could incorporate, and without wasting the time of the legislators.” (2), pp. 390-91. Any restrictions on the corporation were stated in the general law for all to see. Different states imposed different restrictions, but in the beginning of this process, all states who had such laws exercised some control over what corporations could and could not do. Massachusetts and New York, for example, placed upper limits on the size of the capitalization of any corporation incorporated in its state. Some of these provisions controlled the price of shares and specified what the corporation could or could not do without shareholder approval. States also charged fees to incorporate. (2), pp. 398-99.

In spite of these restrictions, the move from one-by-one chartering to a general law of incorporating evolved into a revolutionary change that enabled corporations to become the dominant business institution of the twentieth century, as they still are today.

Once a corporation came into existence, it was not restricted to operating solely in the state of incorporation. Court decisions essentially supported the idea that the U.S. Constitution, in particular the Commerce Clause and the Fourteenth Amendment, protected the right of a business to operate across state lines. This meant that, if a corporation wanted to do business in New York, it could incorporate in another state with friendlier incorporation laws, set up a storefront in the incorporating state, and do practically all of its business in New York. (2), pp. 396-98.

The states, in turn, had an interest in drawing business to within their borders. Businesses not only paid the states’ incorporation fees, they also provided a source of income for the states through taxation, and they potentially provided jobs. One way for states to attract businesses was by removing restrictions on corporations and lowering the fees. The states began to compete to be the least restrictive. Some other states simply did not enforce the restrictions on their books. New Jersey was the first to remove all significant restrictions. In its 1896 law, “a corporation could be formed for ‘any lawful business or purpose whatsoever.’” (2), p. 396. New Jersey quickly became the preferred home of corporations. But New Jersey then took a step “backward” and increased regulatory control over corporations. (3), pp. 13-14.

In 1899, Delaware passed its liberal incorporation law and did not step “backward.” It then became the favorite state for incorporating businesses. (2), p. 399. Even though many other states followed with equally liberal incorporation laws, Delaware’s prior success allowed it to establish itself as the source of developed corporation law and judicial expertise, thus adding more certainty and stability to corporate law than other states could achieve. Delaware remains the favorite home of corporations.

By the turn of the century, the American “corporation had torn free of its past--it could be formed almost at will, could do business as it wished.” (2), 399. This was possible only because states changed their laws. But the same reasons that led them to change their laws remain as reasons they are unlikely to reverse course and change them in the future to regulate corporate power. They could but, most likely, won’t.

Still, the existence of corporations and the scope of what they can do depend on the laws of the governments that enable corporations to exist.

___________________________

References (the numbers correspond to the numbers above):

(1) John Micklethwait and Adrian Woolridge, The Company: A Short History of a Revolutionary Idea: Modern Library, 2005

(2) Lawrence M. Friedman, A History of American Law, 3^rd ed.: Simon & Schuster (Touchstone), 2005

(3) Robert W. Hamilton, The Law of Corporations, 4^th ed.: West Publishing Co., 1996.

Links to previous posts in this series:

Corporations (Part I of series): Introduction—Why We Need To Know About Them (2/3/12)

II. Corporations: Their Early Beginnings (2/18/12)

III. Corporations--an Example of Extreme but Conditional Power 
                   (7/3/12)

IV. The First American Corporations--pre-1776  (12/31/12)

IV: The First American Corporations--pre-1776

            Corporations as they exist today did not spring up all at once. It took several centuries for the concept to catch on and be implemented as a way of doing business. Viewing this history will help us to see the strengths and weaknesses of the corporate structure and help us to determine how corporations might be steered to contribute to the welfare of all instead of contributing primarily to the profits of a few.

As this series continues, we will also see more clearly the role governments play in making corporations possible. The goal of this series is to provide a foundation of understanding so that we may intelligently tackle the problem of excessive corporate influence, particularly on the funding of electoral candidates. (1).

            To understand the role corporations play in the nation and the world, it is crucial that we see that some very important corporations include more than profit-making businesses.

            The first currently-existing corporation created on the soil of what is now the United States is Harvard University. (3). It was incorporated in 1650 through the action of the Massachusetts colonial legislature, called The General Court (as it is still called today). Harvard’s existence began in 1636; incorporation came later. (2, p. 84). Yale University received its charter of incorporation in 1701. (4). By the time of the American Revolution, nine colonial colleges had been incorporated. (2, p. 84). (Most private colleges and universities today are corporations.)

            In the colonies, communities also sometimes were incorporated. Apparently the very first corporation in the colonies occurred in 1587 when a grant from Sir Walter Raleigh, acting under authority given to him from England, created the city of Raleigh, Virginia (2, p. 30), on an island (later in North Carolina) that was subsequently abandoned. Although it was not always clear which entities had legal status as corporations and which did not, there were roughly two dozen municipal corporations created in the colonies, beginning in the latter half of the seventeenth century. (2, pp. 50ff). Most of them survived up to and following the Revolution. (2, p. 59). However, most cities and towns in the colonies were not corporations or had a disputed legal status. (2, pp. 60-64). In addition to municipal corporations, a few public corporations were established for the purposes of charity or to administer loans. (2, p. 73).

In the colonies there was no clear line separating public from private corporations, but the latter were more directly financed and controlled by private parties. (2, p. 75). These private corporations included many non-business entities, such as religious institutions, e.g., churches and various religious societies. (2, pp. 75 ff). The establishment of such religious corporations started at the beginning of the eighteenth century. (2, pp. 75 ff). Many such institutions were not corporations but enjoyed legal stability in other forms that varied considerably over time and in different places. (2, pp. 75 ff). Private corporations too included entities that were charitable, educational, or a combination of both. (2, pp. 82 ff).

Business corporations existed prior to the Revolution, but their influence was limited. (2, p. 87). Apparently the first business corporation in America was established in 1589 when Sir Walter Raleigh, under authority granted to him by the Queen, granted a group of men a corporation for business. It did not last long. (2, pp. 31-32).

Subsequently colonial corporations came into existence by receiving a charter from the colonial government with no interference by the British. The governmental sources of these charters varied across the colonies: sometimes it was from the governor acting alone, sometimes from the governor with legislative approval, and sometimes from just the legislative body. Most were set up for charitable, educational or religious purposes; a few were for business purposes. There were also many corporate-like associations and societies that lacked one or more of the formalities required to create a corporation. (2, pp. 104-107).

As we shall see in subsequent postings, it was not until the nineteenth century that the business corporation took hold as an important and significant alternative way of doing business. Even so, the concept of the corporation was controversial. The slowness of the rise of the corporation was most likely because, until the middle of the nineteenth century, corporations were too dependent on the governments that created them. The existence of a corporation depended on a specific charter granted by the appropriate governmental authority. For example, the governing body of Connecticut granted a charter to the New London Society for Trade and Commerce in 1732, and then revoked the charter a year later. (5, p. 43). The existence of any particular corporation, therefore, depended on politics. Since one of the purposes of a corporation is to have an extended life beyond the life of any particular owner, there was little reason to form a corporation that may live for a shorter time at the whim of the legislature. Educational, religious and charitable institutions were on safer, less political ground.

As we shall see in subsequent postings, the business corporation as we know it today requires some assurance that its life would not be threatened by a change in the composition of the legislators or governorship in power at the time of the corporation’s creation.

__________________________

References (numbers correspond to the numbers in the preceding text):

(1)   Links to other posts in this series:

Corporations (Part I of series): Introduction—Why We Need To Know About Them (2/3/12)

            II. Corporations: Their Early Beginnings (2/18/12)

                  III. Corporations--an Example of Extreme but Conditional Power 
                   (7/3/12)

(2)   Essays in the Earlier History of American Corporations, Vol. 1, by Joseph Stancliffe Davis, New York: Russell & Russell, Inc. (1965) (originally copyrighted in 1917).

(3)   Harvard’s website (as of this posting) claimed that Harvard is the oldest corporation in the Western hemisphere (http://www.harvard.edu/harvard-governance). It does appear to be the oldest existing corporation in the United States, but verifying that the original inhabitants and the various European colonists did not establish an earlier still-existing corporation somewhere in the Western Hemisphere would be difficult if not impossible to do.

(4)   http://yale.edu/about/history.html

(5)   John Micklethwait and Adrian Wooldridge, The Company: A Short History of a Revolutionary Idea (New York, 2003; page references are to the paperback edition, 2005).

Another unspeakable massacre, more to come

We typically blame individuals for bad and terrible things. By blaming individuals, we excuse the institutional and cultural frameworks that provide the channels for the individual acts.

We are all responsible for allowing these institutional and cultural channels to continue. By blaming the individuals for their acts, we absolve ourselves and pretend the wrongdoing has nothing to do with us. But these institutional and cultural channels--including the lack of gun regulation and the level of violence we accept as entertainment--made possible the terrible massacre in Newtown, Connecticut.

These channels will not end overnight. Accordingly, there will be more massacres of the innocent. Nonetheless, we must fight for change or it will only get worse.

The rest of what I would have like to have said was said much better by Nicholas Kristof of the New York Times, “Do We Have the Courage to Stop This?” (link).

Fight Against Religion's Continuing Intrusion Into Politics

The following letter was published by the Boston Globe on November 16, 2012, p. A14, and online at BostonGlobe.com:

Faith groups should lose tax break when they enter politics

Step by step, we are allowing religion to intrude further and further into politics. Ballot Question 2 and the laws governing abortions, for example, are political issues. Yet current interpretation of tax law allows churches and religious organization to raise money in support of their views on these political issues with no consequences to their tax-exempt status (“Bishops adopt a mandate,” Metro, Nov. 13 [stating that the Catholic Church helped raise over $4 million to oppose a proposition in support of physician-assisted suicide]).

By allowing religious organizations to raise money for political causes through tax-exempt donations, we are giving them a privileged position. Our tax laws need to change or be interpreted to remove this privilege and put these groups in the same position as similarly situated nonreligious organizations.

The issues of abortion and physician-assisted suicide concern the laws by which the public desires to be governed consistent with our constitutional rights. These laws are political in that they affect everyone without regard to religion. Religious matters, on the other hand, properly pertain only to the members of the religious organizations to which they belong.

When religious organizations raise money to support or oppose laws that affect nonmembers, they overstep their role and become political organizations.

The public should fight back and call for taxing the contributions to these organizations when they engage in fund-raising to support political positions.

John L. Hodge

Jamaica Plain

_____________________________

Links to the author's related posts and writings:

• Get Religion out of Politics: Part I
• Get Religion out of Politics: Part II
• What's God Got To Do With It?
• Towards—Or Away From—American Theocracy?
• Dialogues on God: Three Views
• An explanation of why the values of democracy require separation of religion from government is contained in Chapter 4 of How We Are Our Enemy—And How to Stop.
• A thorough analysis of President George W. Bush’s belligerent views connecting God to the United States is contained in Chapter 3 of How We Are Our Enemy—And How to Stop.

Why the Republican Platform, not Repudiated by Romney, Would Destroy Women’s Rights: Part II

            Alissa Pugh might be in prison now if the Massachusetts highest court, the Supreme Judicial Court, had adopted the Republican party platform’s position on rights of fetuses. Her fetus died during an unattended home delivery. She was prosecuted and charged with manslaughter, convicted of involuntary manslaughter and sentenced to two and a half years in a house of correction. The Supreme Judicial Court (SJC) reversed her conviction. (Commonwealth v. Pugh, decided June 15, 2012.)

            After experiencing pain at work, Ms. Pugh went home to give birth to what would have been her second child. Instead of feeling a baby’s head emerging during the birth as she anticipated, she felt a foot. She somehow managed to give birth on her own, but the baby was blue. She tried to resuscitate it, but failed. This event led to the charge of manslaughter.

            With her attorney, she chose a trial without a jury. The judge determined that she had a legal duty to seek medical assistance. Her failure to do so constituted wanton or reckless acts against her viable fetus. Thus, he convicted her of involuntary manslaughter, a lesser version of manslaughter.

            We must be careful at this point not to blame the judge who convicted her. He was in a difficult spot. The law of Massachusetts at the time was sufficiently unclear that an argument could be made for conviction. The only way to make the law clear was to get the case before the SJC. If he had acquitted her, the case would have ended and not gone to the SJC, so the law would have remained unclear. If he convicted her, he had good reason to believe that the case would be appealed and that the SJC would rule as it did. It is likely that this is what he was thinking. He suspended her sentence pending appeal, so she did not actually serve any time.

            The SJC ruled as anyone familiar with this progressive court would expect. While determining that the facts did not support the conviction, the Supreme Judicial Court, in a unanimous opinion, also determined that Ms. Pugh had no legal duty to seek medical assistance for the birth. “Medical assistance imposed by the judge in this case would amount to a significant incursion on the birthing woman’s liberty interest in freedom from an unwarranted degree of government surveillance and coercion.” In effect, the court acknowledged what I stated in Part I of this series.

            The Republican platform says something quite different.  It states, “We support a human life amendment to the Constitution and endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.” The Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” The platform also states that “the unborn child has a fundamental individual right to life which cannot be infringed.” (These words have been there and repeated since 2004.)

            Thus, the Republican platform treats the fetus, viable or not, the same as a child or an adult. Whereas the Supreme Judicial Court has said that “there are inherent and important differences between a fetus, in utero, and a child already born,” the platform removes that distinction. By taking a slightly different view of the same facts, a court that followed the Republican platform would have upheld Ms. Pugh’s conviction.

            The Supreme Judicial Court was mindful of the implications of a conviction. “Every decision a woman makes during her pregnancy, medical or otherwise, could have a profound impact on the fetal life inside her.” There are “countless ways in which a woman can be perceived to endanger her fetus during pregnancy or childbirth.”

The Supreme Judicial Court realized that a conviction would mean that these “countless ways” could all be subject to governmental surveillance and intrusion to protect the fetus, just as I explained in Part I. The court’s decision protects pregnant women. The Republican platform does not. In asserting the equal rights of the fetus, the platform would open the door to governmental surveillance and intrusion into the lives of all pregnant women. It is likely that some courts in some states will reject the position of the SJC and make every effort to follow the intent of the Republican platform.

As I stated in Part I, since Mitt Romney has not repudiated this part of the Republican platform, it means that, since he is a Republican, we must assume that he supports it. If this part of the platform were implemented, many women who do not seek an abortion will nonetheless go to jail if their fetus dies.

Thus, much is at stake in this presidential election--the rights of women and the very meaning of democracy. But after the election, even if Obama wins, the Republican platform advocating giving equal rights to fetuses will continue to threaten the rights of women and the values of democracy.

________________________

Links:

• Part I
• Commonwealth v. Pugh
• How We Are Our Enemy and How to Stop, containing in Chapter 5 a section titled “Take Equality Seriously – Give Women Full Rights to Their Bodies,” that explains the anti-democratic ramifications of pro-life extremism and what should be done to strengthen women’s right to choose. 

Why the Republican Platform, not Repudiated by Romney, Would Destroy Women’s Rights: Part I

            The Republican platform contains two sentences that would spell the end of women’s rights. The hidden threatening consequences of these two sentences must be exposed.

            These two sentences advocate equal rights for fetuses. The platform states, “We support a human life amendment to the Constitution and endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.” The Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” The platform also states that “the unborn child has a fundamental individual right to life which cannot be infringed.” These words have been there and repeated since 2004. They will continue to be repeated if their implications are not fully exposed.

These words have been misinterpreted to merely state an opposition to all abortions. But giving equal rights to fetuses is much more devastating than that. You cannot give equal rights to fetuses without taking away the rights of those who carry fetuses--or who unknowingly might be carrying fetuses--within their own bodies.

Giving equal rights to fetuses support the following shocking consequences:

            Consequence 1: All states have laws that protect the health of children to the extent that state agencies may remove a child from the parents if the appropriate state agency determines that the parents are abusive or the parental home is not in the best interests of the child. But what if that “child” is a fetus? The Republican’s position gives the fetus the same rights and protections as a child. The platform would empower the state agency to do what it can to protect the fetus, just as the agency is already empowered to do what it can to protect a born child. Thus, a state agency could determine that the best interests of a viable fetus require that it be removed from the pregnant woman against her will, and handed over to medical personnel and foster care. This might occur, for example, if the pregnant woman does anything that might increase the probability of harm to the fetus, such as taking illegal drugs, having unprotected sex, drinking heavily or not eating well.

            Consequence 2: If a fetus does not survive, and that failure to survive can be attributed to any behavior of the woman who carried it, the woman could be prosecuted for causing the fetus’ death. This could result in charges ranging from manslaughter to first degree murder. Part II of this two-part series will give a real example of such an occurrence.

            Consequence 3: Since conception cannot be immediately determined, every woman of child-bearing age would have to be treated as a potential carrier of a fetus. To protect the equal rights of this potential fetus, the state not only would have to monitor the sexual activities of every woman of child-bearing age to see if she might be pregnant, it also would have to require her to behave in certain ways so as not to harm the fetus that might be within her--whether or not she is actually pregnant. If a woman failed to behave in those prescribed ways and happened to get pregnant and the fetus did not survive, she would be subject to Consequence 2.

            In short, the consequences of the Republican platform’s position would potentially lead to placing all women of child-bearing age, not just pregnant women, under governmental surveillance and control. Thus, this extreme “pro-life” position would destroy the equal rights of women. This is a threat to women’s rights that must not be glossed over or ignored.

          We must all take notice and do what we can to expose these consequences of the Republican platform. We cannot have democracy without equal rights for women. Giving equal rights to fetuses would destroy women’s rights and thereby destroy a necessary component of democracy.

          Where does the Republican presidential candidate Mitt Romney stand on this issue? Given that he has not repudiated this part of the Republican platform, it must be assumed that he supports it. That would be a significant danger were he to become President.

          Even if President Obama wins the election, we must not forget that the continuing presence of this part of the Republican platform will remain a lurking threat to women’s rights. Imagine what would happen if the Republicans controlled the Presidency and both houses of Congress, and the Supreme Court. Fetuses would have equal rights, and women would suffer the consequences.

Get Religion out of Politics: Part II

            Those who argue that the “Founders” were religious, and that, therefore, religion should be a part of politics today, are wrong on two counts and correct on none. (See for example, Jeff Jacoby’s “Faith enriches politics, on both sides,” The Boston Globe, Page K9, Sept. 9, 2012). First, many of the founders were not particularly religious. Second, and more importantly, the Founders wrote into the U.S. Constitution clear instructions to keep religion out of politics.

As I stated in Part I, beliefs in God should be personal, not political.  Far from enriching politics, appeals to God are barriers to compromise, nationally and internationally. Such appeals are also disrespectful of those who are atheists or agnostics, as well as disrespectful of those whose beliefs in God do not fit traditional views. (Read Dialogues on God: Three Views, for further discussion of this point.)

            In deciding how we should approach this issue today, it does not matter what the individual Founders’ faiths were, any more than it matters today what the Founders thought about slavery. Are we going to say that, since some of the Founders had slaves, that it is OK to have slaves today? Thus, appeals to the Founders’ faiths is not relevant.

But we would also be wrong to accept the commonly stated view that the Founders were strongly religious people. Some of them, at least, kept their religious beliefs to themselves, so we do not know how religious they were, if at all. Historians are still not clear what religious beliefs George Washington and Thomas Jefferson actually held. There seems to be no record of George Washington ever mentioning the name of Jesus, and his references to God were not easy to find or interpret. Thomas Jefferson may have been a deist, one who believes that God set the world in motion and kept out of it thereafter. This is not the kind of God who would bless America. The point is that this uncertainty about their religious beliefs, or lack thereof, means that they did not make it a public matter. (See “The faith (and doubts) of our fathers,” The Economist, Dec. 17, 2011.)

            More important than the different faiths, or lack thereof, of particular Founders are the words in the U.S. Constitution that they agreed upon. The First Amendment states, “Congress shall make no law respecting an establishment of religion.” Article VI states, “no religious test shall ever be required as a qualification to any office or public trust under the United States.” These statements establish the separation of government and religion. They do not support the view that “faith enriches politics.” Instead, they support the view that religion and politics should not mix. “No religious test” means that belief in God, or in any particular view of God, is not a prerequisite for public office.

            In spite of the clear separation of government from religion that is supported by the U.S. Constitution, successful efforts to put religion back into politics have been going on for decades. The words “under God” were put in the Pledge of Allegiance in 1954. The words “In God We Trust” became the national motto and were added to the currency in 1956. Every presidential speech today ends with “God bless America.” President G. W. Bush went further. By frequently adding the words, “and continue to bless America,” he changed the meaning of “God bless America” from a desire that God bless America (which nonetheless assumes the existence of a particular kind of God) into an historical assertion that God in fact does bless America. With those words (along with others), he completed the identification of America with God. For decades, beginning even prior to the 1950’s, we have been increasingly headed in the wrong direction and continue on the same dangerous path.

Bringing faith into politics is contrary to the values underlying democracy. When we identify our political views with God, we are doing nothing more that asserting, “We are right!” This assertion generally implies that those who have other views are wrong. God is with us, not them. There is no need to think about it. Facts are irrelevant. Bringing God into politics is the means by which we disrespect those with differing views. (Read Chapter 4 of How We Are Our Enemy—And How to Stop for further examination of this point, with an historical and ethical perspective.)

            If we get God out of politics and stop identifying God with America, we will become more open-minded, more thoughtful, and give greater consideration to opposing points of view. It will help replace belligerence--the kind that led to the invasion of Iraq--with peaceful negotiation of agreements. Identifying God with America is a rejection of the very values that underlie democracy, the values that assert the equality of all people regardless of their religious beliefs.

__________________________

Notes:

• On the dangers of theocracy, see this commentary.
• A thorough analysis of President George W. Bush’s views connecting God to the United States is contained in Chapter 3 of How We Are Our Enemy—And How to Stop.

Get Religion out of Politics: Part I

Here is my letter that the Boston Globe published today in its "Ideas" section, page K9 (the title is the Globe's):

With 'God' on our side, we've blundered into wars

Beliefs in God should be personal, not political ([responding to Jeff Jacoby's] “Faith enriches politics, on both sides,” Op-ed, Sept. 9 [Boston Globe, Page K9]). When we identify our political views with God, we are doing nothing more that asserting, “We are right.” This assertion generally implies that those who have other views are wrong.

            By believing that we are “under God,” we are more likely to become belligerent and impetuously go to war against “evil.” Appealing to God in the struggle against “evil,” President George W. Bush led the nation into disastrous wars in Iraq and Afghanistan. There was relatively little public protest at the time. How do you protest against God and in support of evil?

            If we get God out of politics and stop identifying God with America, we will become more open-minded, less belligerent, and give greater consideration to opposing points of view. 

            Such political and social open-mindedness is essential in our diverse world.

John L. Hodge
Jamaica Plain