In January 2010, the Supreme Court ruled in Citizens United v. Federal Election Commission (pdf) that corporations, at least with respect to certain First Amendment rights, are persons entitled to constitutional protections. The Court’s opinion (and particularly Justice Scalia’s concurring opinion) invoked what was described as the “Framer’s view” of corporations as support for extending corporate personhood.

Whether a corporation should have the same First Amendment speech rights that individuals hold is an interesting (and complicated) debate- and not necessarily one that turns on how the Framers felt on the subject. That said, if you are interested in an informed perspective on how the Framers did feel about equating corporations with persons, Brian Murphy, a history professor at Baruch College in New York, has some interesting insight to offer. Professor Murphy notes:

One of the original purposes of corporate charters in the United States was to allow groups of people to file lawsuits, and be sued, in courts. But it wasn’t absolutely necessary — if you and your partners formed a joint-stock company, you created an entity that had bylaws and directors and could enter into contracts and enforce them in courts. What the corporate charter did was grant additional privileges to this basic joint-stock company framework. In the case of state-sanctioned infrastructure projects — turnpikes and bridges — corporations usually held monopolies or exclusive rights of some kind. In the case of early American banks, their biggest privilege was limited liability and favored status as deposit institutions for state revenues, which usually gave them de facto monopolies.

So the corporation doesn’t merely arise because it’s a convenient legal form. Instead, it was a useful tool for capital formation because it carried economic privileges that protected investors and enabled them to externalize all kinds of risks and costs. That’s why charters are difficult to obtain in early America. You have to spend political capital to get one passed through two legislative houses and signed by a governor’s pen.

When general incorporation acts are eventually adopted by states in the early nineteenth century, the states’ intent is to level the playing field and disentangle themselves from the political power — and burden — of choosing among rival groups of charter-seekers. The intent of these laws is therefore the opposite of what the Court asserted in Citizens United. Free incorporation was meant to limit the power of corporations by democratizing the corporate form through dilution. It was supposed to be a giant leap in distinguishing between public and private spheres of activity.

In other words, the Framers would not have equated the term “association” with “corporation” as the majority did in Citizens United. Individuals had long formed “associations” for various purposes, but the economic and limited liability structure known as the “corporation” was available only to the politically privileged around the time of the founding. Only later was the process democratized to allow anyone to incorporate, and shortly thereafter the Court began interpreting “corporation” as “association.” While the Founders may have recognized a right of free speech for “associations,” there isn’t much evidence they would have favored a right of free speech for “corporations,” at least as the term was understood by the Founders.

It may be that the distinction between “association” and “corporation” has so fallen away today that it makes sense to extend free speech rights to a corporation, but invoking the Founders’ views as support for corporate free speech rights seems clearly in error.

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Gov. Jan Brewer (R-AZ) struggled last night in one of the most unlikely of places- her opening statement. One suspects she had memorized her opening statement (as most politicians do) but had a memory lapse and simply froze.

The awkward debate moment has garnered significant negative publicity for Gov. Brewer, and it was embarrassing to be sure. That said, the moment is being treated by many as if it is a good reason not to vote for Gov. Brewer. The gaffe was amateurish (surprising for a sitting governor), but it’s difficult to extrapolate from that single moment that she isn’t capable of being a governor. She is, after all, already a governor. Perhaps if she were relatively unknown and her abilities were more in question the moment would have greater significance, but she is in a different place than a political neophyte.

Far more troubling was her refusal to renounce her earlier claim that illegal immigrants are beheading individuals in the Arizona desert. Her claims of beheadings have not been corroborated by any police or other government official, yet she continues to make such claims as support for Arizona’s enactment of tougher illegal immigration laws.

During the debate, Governor Brewer was challenged several times to provide evidence of beheadings or to retract her statement. Her debate opponent, Attorney General Terry Goddard (D-AZ), argued that the Governor was harming Arizona business and tourism by painting a false picture of violence in Arizona. While the Governor’s statements may, in fact, be harming Arizona business and tourism, more significantly she is falsely accusing a racial minority of committing heinous acts of violence. Her motive in spreading such falsities appears to be to increase public support for Arizona’s tougher illegal immigration laws by inciting anger against a racial minority.

The video below, taken immediately after the debate, strongly suggests that Brewer knows her claims are false, and yet she still will not retract her statements:

Willful obstinacy is never a good quality to possess, particularly by an individual who asks the public to vest her with the full executive power of the state. It’s even worse when willful obstinacy is used as a tool to attack a minority population. Her willingness to resort to such falsities says far more about her fitness for office than any opening statement debate gaffe ever could.

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On September 1, President Obama announced the formal end to combat operations within Iraq, ending the combat phase of the third longest war fought in US history. For comparative purposes, the table below lists the duration of several major US engagements:

War


Duration


Afghanistan 8 years, 10 months (and counting)
Vietnam War 8 years, 5 months
Iraq 7 years, 5 months
Revolutionary War 6 years, 9 months
Civil War 4 years
World War II 3 years, 8 months
Korean War 3 years, 1 month
War of 1812 2 years, 6 months
Mexican-American War 1 year, 10 months
World War I 1 year, 7 months
Spanish-American War 8 months
Persian Gulf War 1.5 months

The President’s declaration of the “end of combat operations” is significant, but its impact will most be felt by Americans who have little or no direct stake in Iraq.  For many, if not most, Americans, the moment will spark brief interest with some political and economic ramifications and then shall largely pass.   For the Americans who have loved ones serving in the armed forces, the declaration may feel like semantics over substance.  Tens of thousands of American soldiers remain in harm’s way in Iraq and will for the foreseeable future.  Declaring combat to be over isn’t likely to mean combat is over.

It’s hard to fathom that two of the three longest wars ever fought in US history were fought concurrently.  It’s even harder to fathom that for one of those engagements, the rationale for the war remains murky to this day.  The Bush administration never settled on one consistent justification for the Iraq invasion: preemptive strike against a nation colluding with al-Qaeda to destroy the US; a need to find and destroy weapons of mass destruction within Iraq; Iraq’s failure to abide by UN resolutions and its abuse of an oil for food program; the need to remove a brutal dictator….  On top of those justifications, commentators have posited several additional theories (with varying degrees of credibility) for the US engagement in Iraq: oil, a need by Bush to complete work his father began, a belief that democracy could be planted in Iraq and then cultivated throughout the Middle East, and more.

If the objectives of the war were murky, so, too, was the identity of the enemy itself.  The enemy was self-selecting, and lived within the neighborhood of the ally.  The only uniform characteristic of the enemy was allegiance to an idea; of course, ideas don’t wear uniforms.

The oddities of the Iraq War which set it apart from most other US wars- group actors rather than state actors, lengthy engagements, murky objectives- may become the rule rather than the exception.  The single largest reason for such a shift in war’s identifying characteristics may be technology.

Military technology makes war increasingly impersonal.  The days of crossing an open field to charge enemy lines are largely over. Today, enemy combatants may be killed by drone airplanes, or by rockets launched from afar, or any other number of remote means.  That technological capability means fewer military casualties and fewer deployed troops (both very positive), but it may also correlate with less interest and sacrifice by a civilian population in and for its nation’s wars- which makes war easier to launch and much harder to stop.  It is far easier for a civilian population to suffer war’s costs if there are relatively few combat casualties than it is to suffer war when the machine of death is fully engaged.  By lowering war’s “barriers to entry,” technology can result in more frequent military engagements with increasingly lower thresholds of justification for each such engagement.  This is precisely the threat President Eisenhower foresaw in a prescient 1961 speech:

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.

Akin to, and largely responsible for the sweeping changes in our industrial-military posture, has been the technological revolution during recent decades… Yet, in holding scientific research and discovery in respect, as we should, we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientific technological elite.

It is the task of statesmanship to mold, to balance, and to integrate these and other forces, new and old, within the principles of our democratic system — ever aiming toward the supreme goals of our free society.

Technology hasn’t only changed the characteristics of war, it has also arguably changed the participants. Other than isolated examples, such as the US war against the Barbary Pirates in the early 1800s, war has historically been fought between nation states and not between a nation state and rogue groups. Not so any more. Modern warfare capabilities make it impractical for most nation states to “win” a traditional military engagement against a superpower such as the United States (the Gulf War, for example, lasted only about 45 days). That fact alone makes it less likely nation states will directly attempt to incite such superpowers to war. Instead, nation states may find it preferable to fund rogue groups (such as al-Qaeda) to take on the difficult task of toppling a superpower. Alternatively, rogue groups may pursue that goal independent of state support. Either way, superpowers may find conflict with rogue groups to be the new norm.

This is not to say that the American soldiers who heroically sacrifice their time, sweat, blood, comfort and even lives at the request of their nation do so in vain. They proudly carry the banner of the United States of America throughout the world and do more good than any other fighting force in the history of the world in the process. Rather than conquer Iraq for example, the American military has worked hand in hand with a new Iraqi government, chosen by its people, and spent hundreds of billions building up a nation which suffered under the rule of a brutal dictator for decades. Similar efforts are underway in Afghanistan and build on American efforts following prior military engagements, such as Germany and Japan.

Even while American efforts in combat operations may ultimately produce much good, Eisenhower’s warning rings true. The “cost” of war cannot be viewed as merely financial, despite technology’s and the military industrial establishment’s arguments to the contrary. Human life is precious, and a nation’s best shouldn’t be sent to die for anything less than a necessary cause. The best tool to combat the ease with which a nation may enter into war is, as Eisenhower noted, an alert and informed civilian population. Apathy is the worst enemy of democracy.

Nevertheless, war will sometimes be necessary. And it will always be ugly. John Stuart Mill perhaps put it best:

War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself.

President Obama’s call for the end of combat operations in Iraq is a cause for celebration, but it is also a call for a new review of the forces and circumstances that led the US into Iraq in the first place. Was the engagement a critical cause, worthy of the sacrifice so many have paid, or was it something less which should have remained untouched? Americans need to ask these questions and demand the answers. The process is fundamental to being alert and informed. Regardless of the conclusion one reaches on the question of Iraq, the process of reaching the conclusion will better inform the future.

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Anytime a judge is nominated for a position on a federal circuit court, and especially for the Supreme Court, you will hear Senators during the confirmation hearings ask the nominee how a judge should interpret the Constitution. For many conservatives, there is only one acceptable answer: originalism.

Originalism is typically explained to the public as meaning “what the founders thought.” The explanation appears simple and is easy for the layperson to quickly understand (undoubtedly part of the reason it has taken such a hold in the conservative movement). Unfortunately, that explanation isn’t all that accurate.

The first problem with originalism is it paints the founders as being of one mind. That wasn’t true of most issues which were actually addressed by the founders, so how likely is it to be true of issues not directly contemplated by the founders? Originalism also struggles to define who the founders were (there are different camps within originalism on this question). Which founders one looks to in deciding what the founders believed may very well radically change the outcome of a particular case. Would the members of the Constitutional Convention as a whole be considered the founders? Or how about members of the Committee on Style (which penned the language in the Constitution)? How about Madison, who was possibly the most influential member of the Convention? Of course, the Convention only proposed the Constitution to the states. Should the state legislatures who ratified the Constitution be considered the founders instead? Committees of those legislatures? Key figures in those legislatures? Does public perception about what a provision meant (if it could be gauged) trump what the drafters themselves thought it meant? Even more problematic is the fact that the Constitution has been amended in significant ways since it was adopted. This is particularly true of the 14th Amendment which, for reasons I won’t get into here, radically changed the manner in which the Constitution is interpreted today. Are the drafters of the 14th Amendment the founders? The states who ratified the 14th Amendment, etc., etc.? There aren’t any good answers to these questions, other than that the voices that support a particular outcome tend to be the voices called the “founders.”

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Introducing… VacTrain

On August 25, 2010, in Science, Technology, by Publius

Imagine a world where New Yorkers take an extra hour or two for a lunch… in Los Angeles. That vision could become reality with VacTrain, a futuristic train system capable of traveling 5,000 mph (6.5 times the speed of sound). To attain such unbelievable speeds, VacTrain builds on the revolutionary magnetic levitation system already used successfully in Asia and other locations by placing the entire train in a vacuum-sealed tube. Not only does such a system effectively eliminate friction and wind resistance (permitting extremely high speeds), but it does so in a manner which requires very little energy.

If VacTrain were built in the United States, the commute from New York to Los Angeles would be cut to less than an hour (which includes a stop in Dallas). But why stop there? Engineers believe VacTrain could also be built underwater across the Pacific and Atlantic, permitting travel between Los Angeles and China in just two hours (as discussed in the video below):

Part 2- Part 3- Part 4- Part 5

China is in the process of moving a scaled down version of VacTrain from conceptual design into reality. Southwest Jiaotong University in China has developed a prototype maglev train system which would operate in low pressure underground tubes and would be capable of traveling up to 600 mph (3 times faster than current maglev trains). The system could be in place between 2020 and 2030.

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The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
The Parent Company Trap
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

Hard to put it better than The Daily Show. Stupid or evil- we are running out of options.

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According to a recent Pew Poll, 18% of Americans (and 34% of Republicans) believe President Obama is a Muslim. This number is surprising, not just because there is no evidence to support the belief, but also because it represents an increase from 2008 levels, when 13% of respondents said they thought Obama was a Muslim. Given that Obama has been president for 1.5 years, you would suspect people would know more about him today than in 2008 when he was only a presidential candidate. Clearly that’s not the case- at least with respect to his religious beliefs.

I’m not going to bother debunking the myth as to whether President Obama is a Muslim. That has been done repeatedly and more than sufficiently, and those who hold the belief do so without regard to fact and won’t be persuaded anyways. Instead, I ask a simple question: why does it matter?

The answer, I fear, is that many people view Islam as a dangerous and even evil religion, and those adjectives describing Islam better fit how many would describe President Obama as opposed to adjectives traditionally used to describe Christianity (of which Obama is actually an adherent). Pew’s poll supports this theory. Among those who believe Obama is a Muslim, 67% disapprove of his job performance. Among those who believe Obama is a Christian, 62% approve of his job performance. Those poll numbers suggest two competing possibilities: 1) people dislike Obama because they believe he is a Muslim; or 2) people associate Obama with Islam at least in part because they dislike him. Put another way, is the relationship between believing Obama is Muslim and disliking Obama causative or merely correlative?

Frankly, either alternative is discomforting, but both suggest a deeply held resentment of Islam by many Americans. That resentment undoubtedly arises in large part from an association of Islam and terrorism, as I have argued before. Once the association of “Muslim=terrorist” is made, it’s easy to see how 28% of Americans could ever believe that Muslims should not be eligible to sit on the US Supreme Court, or how one-third could believe Muslims should be ineligible for the US presidency.

There is no rational reason why someone’s belief in Islam should disqualify them for the US presidency or, for that matter, even be a factor in determining the person’s suitability for office. Just as there are radical Muslims, there are radical Christians, radical Jews, radical atheists, and radical everything else. I have no problem with opposition to a religious extremist candidate, but that opposition should be based on the actual extremist views of the candidate and not on the basis of membership in the religion itself (particularly the world’s second largest religion, after Christianity). And if opposition shouldn’t be based on membership in a highly populated religion, it certainly shouldn’t be based on a false attribution of membership in that religion.

Islam is not a weapon to be wielded against a political opponent. It is a religion peacefully followed by the overwhelming majority of its 1.6 billion adherents. The American tradition of religious pluralism is offended by the treatment of Muslims in the media and political discourse. So too are Muslims, and so ought to be the rest of us.

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Rep. Roy Blunt (R-MO), the Missouri Republican Senate candidate and former Republican Majority Leader in the US House, ran an ad on his website yesterday which shows images of a smoldering Ground Zero while audio of his opponent, Robin Carnahan, discussing the Park51 Islamic center plays in the background. Here’s the ad, since pulled from Rep. Blunt’s website but preserved by showmeprogress.com:

Once again, an explicit equivalence of “Muslim” to “terrorist” underlies the message being pushed by Blunt and his ilk. There may be legitimate reasons to oppose the construction of the Islamic center, but equating Muslims with terrorists isn’t one of them and Blunt should be ashamed. Perhaps he is ashamed- he did pull down the ad eventually. This ad is despicable, and not just for its content. Consider the fact that Rep. Blunt, even if elected to the Senate, will literally have zero input on whether or not the Park51 project is constructed in lower Manhattan. None. He is willing to peddle a gross misconception of a religious organization, which he knows will needlessly inflame hatred and contempt towards that religious organization, in order to win a position in the United States Senate.

Mr. Blunt: for all its flaws, the United States Senate retains a high measure of dignity. You, however, do not.

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The horrific flooding in Pakistan is not getting nearly the attention it merits. Flood waters have now covered over 1/5 of the entire nation and over 1,500 people are dead. Many more are now starving or cut off from potable water supplies. UN Secretary General Ban Ki Moon, after visiting Pakistan and viewing the wreckage, said:

This has been a heart-wrenching day for me and for my delegation. I will never forget the destruction and suffering I have witnessed today. In the past I have seen scenes of natural disaster around the world, but nothing like this. The scale of this disaster is so large. So many people in so many places in so much need.

The map below shows the scope of the flooding in Pakistan, but the video which follows the map perhaps does the tragedy more justice.

Pakistan flooding

Not only is the flooding a humanitarian disaster, it is a strategic disaster for US interests in the region. Pakistan is already highly unstable, and its cooperation with the US is critical in America’s pursuit of terrorists. The extensive flooding further complicates a highly volatile situation in Pakistan and demands the immediate attention of the American, and global, community.

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“Ground Zero Mosque.” That’s the name (coined by Fox News) now popularly used to refer to an Islamic center which is neither a mosque nor located at Ground Zero. Of course, such labeling isn’t a linguistic accident (although Fox News’ first use of the phrase didn’t appear malicious), it is part of a concerted effort to attack the Muslim community.

As far as political labels go, “Ground Zero Mosque” is pretty effective. It immediately conjures up images of the awful 9/11 attacks, and then it sticks a mosque directly atop the hallowed burial ground. As if the imagery of the label isn’t sufficient, politicians like Newt Gingrich irresponsibly build on that label by claiming that the “mosque’s” construction is tantamount to Islam marking its victory over Americans with a monument.

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