Powers, Rights, Privileges

In a constitutionally limited representative democratic republic,

• A power belongs to a government, to compel a non-governmental entity to perform some action or to prevent a non-governmental entity from performing some action.  The sole powers that any such government has are always defined and limited by a constitution, either federal or state.
• A right belongs to an individual or a natural person, to do or not to do as he sees fit.  A right is absolute protection against governmental power.  Many American rights are laid out in the Bill of Rights and every other amendment to the U. S. Constitution (except for Prohibition); in all these cases, individuals’ rights were expanded.  These rights are considered “unalienable,” that is, they are not subject to legislative whim.  Our U.S. Constitution makes abundantly clear that individual rights are not limited to those explicitly enumerated in the Constitution and its amendments; see Amendments IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) and X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”).
• A privilege belongs to an artificial entity, never unalienable, always quite specific and limiting, always legislated into existence, never implied.  Thus, all corporations have privileges that are laid out by some governing legislature, that make up the charter of that artificial entity called a corporation.  Acting outside of these written privileges is grounds for corporate charter revocation (cowardly legislatures keep this from happening, the public interest be damned).  But artificial entities have NO “rights”; read the 27 amendments to the Constitution and it should be crystal clear that only natural persons have rights.

Unhappily, Supreme Court justices are human and sometimes their common sense fails them.  In Citizens United v. FEC, 558 U.S. 310 (2010), the Court ruled – in two parts – that, a) the corporation Citizens United (a rather presumptuous name for a politically partisan corporation) had the specific right or privilege (not clarified in the decision) to broadcast a pay-for-view political movie on TV during an election cycle; and b) corporations had Constitutional rights – the same as you and I – particularly 1st Amendment freedom of speech rights.  Citizens United, part b, was a foolish and dangerous decision because – whereas significant political speech is nearly always bought and paid for (think TV and radio and newspaper and internet advertisements), and whereas protected speech has no dollar limits under the Citizens United decision – the quantity of speech that even one major corporation can afford to influence elections dwarfs the quantity of speech that 98% of the population can afford.  

 

You, dear reader, have unlimited 1st Amendment right of freedom of speech among your friends and colleagues, and on social media (but how many will read your words?).  Whereas the nation’s entire population is assaulted hundreds of times daily on TV by corporate ads that cost millions of dollars; in other words, if corporations can speak and be heard – have unlimited political speech protected by the 1st Amendment to the U.S. Constitution – then the speech of natural persons – your speech and mine – will never be heard, either individually or in the aggregate.

 

Did the framers of the U.S. Constitution ever imagine that rights would ever belong to artificial entities, like corporations?  The simple answer is NO.

 

But I did not write this essay just to clarify the differences between powers, rights, and privileges.  In thinking about this triumvirate, we forget their essential companion: responsibility.  But the powers of a government are limited by its constitution, so responsibility is built in.  And the privileges of artificial entities, like corporations, are also limited by their charters (even though the state never seems to react to their acting outside of their charters).  But the rights of natural persons are nowhere paired with responsibilities.  And therein lies a problem, because a successful democracy depends on its citizens being not merely free but responsible.  Not just to vote every two or four years, but to know what he is voting for or against; not just to bitch about the way things are, but to do something about it (like writing letters to his local newspaper, like letting his congressman know what he thinks, like participating in Town Hall meetings, like running for office); democracy, or self-government, means YOU, binky!

 

One last thing: if you call yourself a patriot – someone who loves his country – and you can’t pass the same Citizenship test that a legal alien must pass to become an American citizen (and earn the right to vote and to sit on a jury, f'godsake), a test whose battery of questions remains fixed and easily accessible for upwards of ten years, a test that asks about our founding documents, our governmental institutions and a little basic American history – why then, maybe you are not the patriot you think you are.

 

We are in the mess we are in these days because of – at least in part – our own citizens’ lack of civic responsibility.  So, maybe we should add the idea of responsibility to our teaching about the powers of our government, the privileges of our corporations, and our rights as American citizens.