Note: This was my Constitution Day talk at Hamline.
“We the people” are the first three words of the Constitution. Legally it should be simple to decide who is part of that we. But as the Hobby Lobby decision showed when the Supreme Court ruled that a corporation had religious rights, it is not always clear who or what the Constitution considers a person or a thing. One would think that it is simple–persons have rights, property does not. The reality is that throughout American history the constitutional line between property and personhood has been thin and contentious.
The text of the Constitution uses “person” 22 times. Many instances refer to eligibility to run for office such as president. But two places, Article I sections 1 and 9, refer to “other persons” when discussing slaves for the purposes of determining congressional representation, apportioning taxes and regulating slave trade. They and Indians were to be counted as “three-fifths” of white male persons when it came to representation.
While the constitutional framers thought slaves were other persons, they certainly were not entitled to rights of citizenship. In the 1856 Supreme Court decision Dred Scott v Sandford, Scott, a slave, was taken north to free territory at Fort Snelling and claimed his freedom. Chief Justice Taney declared that while slaves were people the Framers did not intend them to be considered persons with rights. Using the Fifth Amendment that stated that no owner shall deprived property without due process of law, slaves were declared possessions of their owners.
Slaves and Native-Americans were not the only constitutional outcasts. As early as 1776 Abigail Adams, wife to John Adams, wrote him urging the Continental Congress to “remember the ladies” when they met to declare independence. Yet in the 1875 Minor v. Happersett decision the Supreme Court acknowledged women to be persons and citizens yet nonetheless could be denied the right to vote. A decade later in County of Santa Clara v. Southern Pacific Railroad Company the Supreme Court simply accepted as given that corporations were persons under the Fifth Amendment. Property had rights.
Over time the Supreme and other lower courts debated who qualifies as a person and what rights are attached to this status. For corporations, personhood grants them the right to free speech, and now free exercise of religion under Hobby Lobby. They can also sue and be sued, own property, and be held criminally for their acts, but cannot claim a right against self-incrimination.
Children are persons and at one time in cases such as Tinker v. Des Moines the Supreme Court declared that the Constitution protects them. Yet minors cannot vote and they face many legal restrictions on their behavior ranging from due process to smoking and drinking. Resident aliens are persons, but enjoy fewer rights than citizens. Undocumented individuals should enjoy no rights according to some. And since 9-11, it is not altogether clear what rights persons detained at Guantanamo Bay deserve.
The battle over personhood and property continues to perplex American society and constitutional scholars. Property is afforded significant constitutional protection and challenges to land use, eminent domain, and regulatory laws often assert ownership rights. The 1973 Roe v. Wade decision legalizing abortion declared that “person” did not include the unborn. Yet the Court did not say that the fetus was property, it was something in between requiring a balancing of its rights against the mother. A fetus is not a person but many states criminalize women who smoke, drink, or do drugs while pregnant. Six states have declared a fetus a person and North Dakota voters may do that this November. But declaring a fetus to be a person still will not resolve what rights it has.
Consider new frontiers in the battle for personhood. Animals are legally property but laws ban cruelty and maltreatment. Advocates urge that primates such as bonobos have a sufficient sense of intelligence, self-awareness, or pain that they are morally indistinguishable from humans and therefore should have their rights respected. Presently, there is a case in New York where advocates are using a habeas corpus strategy to try to free a chimpanzee from confinement.
Other frontiers sound more science fiction. While the Supreme Court declared in its 2013 Molecular Pathology v. Myriad Genetics that human genes could not be patented, the case highlighted the increasingly fine line between human or person and artificial. The 1970s television show The Six Million Dollar Man featured Lee Majors as a human re-engineered with artificial parts and computers. Is a future six million dollar man a person? Consider Hal, the computer who talks to Dave in the movie 2001: A Space Odyssey. When Hal is turned off is that computercide? When human replicants from Blade Runner kill in the future, will they be persons liable for crimes? Is Data from Star Trek a person? Finally, assume the proverbial aliens from Mars land on Earth, will the Constitution consider them persons entitled to rights?
Hobby Lobby thus demonstrates whether something is a person or property is only the beginning of a constitutional debate about rights. It also shows how controversial that determination is. For those thinking that declaring animals or fetuses to be persons, or those urging the repeal of corporate personhood, declaration on status as person or property is only the start of the discussion about what rights are due.
Showing posts with label women. Show all posts
Showing posts with label women. Show all posts
Friday, October 3, 2014
Friday, July 4, 2014
Five votes. Five Catholics. Five men: What is Wrong with the Hobby Lobby Decision
Five votes. Five Catholics. Five men. One decision. Potentially millions of American women denied contraceptive coverage. This what the recent Hobby Lobby decision is about, but it also reveals three deeper problems–the sexism pervading the current Supreme Court along with its religious parochialism, a serious problem with the role that religion has come to occupy in American society, and the elevation of corporate rights and power that is strangling American society.
Burwell v. Hobby Lobby tested the constitutionality of a requirement of the ACA that employer health care insurance include coverage for contraception. Owners of a corporation named Hobby Lobby contended that such a mandate violated their free exercise rights protected under both the First Amendment and the Religious Freedom Restoration Act (RFRA). In agreeing with the owners, the Supreme Court in a 5-4 decision made several leaps of logic.
First, the majority opinion looked to the text of RFRA. The law states that: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The first question was whether the law’s reference to “person” also included corporations. The Court said yes. It did that by making two arguments. One was to ask how a dictionary defined the word. Employing the federal Dictionary Act as its guide the Court found that it defined person to include among other entities, corporations, companies, and partnerships. The Court then asked whether there was any indication that in passing RFRA Congress intended to define person, other than found in the Act, to exclude corporations. Finding no indication of that the Court said that RFRA protected the religious rights of corporations such as Hobby Lobby. Moreover, to the objection that corporations cannot exercise religion the Court responded by declaring “All of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”
Second, the Court argued that creating a religious exemption under RFRA for a corporation had already occurred under the ACA when Congress exempted religious non-profits from the contraception mandate. Thus, given that there was no indication that Congress meant to exclude corporations from RFRA protection and that non-profits already were exempted from insurance mandate, this was enough for five Justices to rule in favor of Hobby Lobby.
So think first about the sexism of the decision. Five male Justices rule that it is ok for an employer to deny women contraceptive coverage. Employers should not be making this decision–by this decision employer preferences are counted twice–employers get a vote about what they want to cover and their choice gets to trump that of women. This is bad enough. But the sexism is even worse–it is about not getting a clue. Contraceptives are not just about birth control–they are about women’s health. Many of the drugs used to prevent pregnancies also address other women’s health issues. I doubt the Justices understand this (even if they care). One wonders how they will feel about companies that will refuse contraceptive care but pay for Viagra.
But the sexism is compounded by the Catholicism and religiosity of their votes. All five guys in the majority are Catholics. The Catholic Church opposes not just abortion but birth control. These five Justices seemed simply to vote the sexist Catholic party line in their decision. But taken further, the law at the basis of their decision–the Religious Freedom Restoration Action–appears to constitutionalize a religious veto into the law. The law, and the Hobby Lobby decision, appear to be so solicitous to religion that one can argue that both have established religion into the law. When the First Amendment was written it declared that “Congress shall make no law establishing a religion.” But RFRA and the five Justice majority appear to have done that. We need protection from the Court establishing its views of religion into the law. While it may be a subject for another column, a good argument can also be made that RFRA might itself violate the Establishment clause.
Finally, Hobby Lobby adds a another dimension to corporate rights and personhood that connects back to Citizens United. The Roberts Court seems consistently willing to privilege employers and corporations over that of workers and individuals. Here, when the rights of corporate owners clashed with female workers it was the former who won. More than 30 years ago political scientist Charles Lindblom contended that it was impossible to reconcile corporate power with democracy. He was correct. The powers given to property and corporations under the Roberts Court come at the expense of American democracy. It is a failure to recognize that democracy needs to be protected from capitalism and the ability of those with money to convert their resources into political power. Hobby Lobby is just another example of how some have confused the economic and political marketplaces.
Burwell v. Hobby Lobby tested the constitutionality of a requirement of the ACA that employer health care insurance include coverage for contraception. Owners of a corporation named Hobby Lobby contended that such a mandate violated their free exercise rights protected under both the First Amendment and the Religious Freedom Restoration Act (RFRA). In agreeing with the owners, the Supreme Court in a 5-4 decision made several leaps of logic.
First, the majority opinion looked to the text of RFRA. The law states that: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The first question was whether the law’s reference to “person” also included corporations. The Court said yes. It did that by making two arguments. One was to ask how a dictionary defined the word. Employing the federal Dictionary Act as its guide the Court found that it defined person to include among other entities, corporations, companies, and partnerships. The Court then asked whether there was any indication that in passing RFRA Congress intended to define person, other than found in the Act, to exclude corporations. Finding no indication of that the Court said that RFRA protected the religious rights of corporations such as Hobby Lobby. Moreover, to the objection that corporations cannot exercise religion the Court responded by declaring “All of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”
Second, the Court argued that creating a religious exemption under RFRA for a corporation had already occurred under the ACA when Congress exempted religious non-profits from the contraception mandate. Thus, given that there was no indication that Congress meant to exclude corporations from RFRA protection and that non-profits already were exempted from insurance mandate, this was enough for five Justices to rule in favor of Hobby Lobby.
So think first about the sexism of the decision. Five male Justices rule that it is ok for an employer to deny women contraceptive coverage. Employers should not be making this decision–by this decision employer preferences are counted twice–employers get a vote about what they want to cover and their choice gets to trump that of women. This is bad enough. But the sexism is even worse–it is about not getting a clue. Contraceptives are not just about birth control–they are about women’s health. Many of the drugs used to prevent pregnancies also address other women’s health issues. I doubt the Justices understand this (even if they care). One wonders how they will feel about companies that will refuse contraceptive care but pay for Viagra.
But the sexism is compounded by the Catholicism and religiosity of their votes. All five guys in the majority are Catholics. The Catholic Church opposes not just abortion but birth control. These five Justices seemed simply to vote the sexist Catholic party line in their decision. But taken further, the law at the basis of their decision–the Religious Freedom Restoration Action–appears to constitutionalize a religious veto into the law. The law, and the Hobby Lobby decision, appear to be so solicitous to religion that one can argue that both have established religion into the law. When the First Amendment was written it declared that “Congress shall make no law establishing a religion.” But RFRA and the five Justice majority appear to have done that. We need protection from the Court establishing its views of religion into the law. While it may be a subject for another column, a good argument can also be made that RFRA might itself violate the Establishment clause.
Finally, Hobby Lobby adds a another dimension to corporate rights and personhood that connects back to Citizens United. The Roberts Court seems consistently willing to privilege employers and corporations over that of workers and individuals. Here, when the rights of corporate owners clashed with female workers it was the former who won. More than 30 years ago political scientist Charles Lindblom contended that it was impossible to reconcile corporate power with democracy. He was correct. The powers given to property and corporations under the Roberts Court come at the expense of American democracy. It is a failure to recognize that democracy needs to be protected from capitalism and the ability of those with money to convert their resources into political power. Hobby Lobby is just another example of how some have confused the economic and political marketplaces.
Saturday, February 1, 2014
Women and Minnesota's Lieutenant Governor: The Tokenism of Power
Why would anyone want to be lieutenant governor in Minnesota, let alone a woman who wants to have real political power and influence? Lt. Gov. Yvonne Prettner Solon decision not to seek a second term on the DFL ticket with Mark Dayton should not have come as a surprise. Nor should Senator Katie Sieben’s decision not to want to leave the legislature and become Dayton’s running mate. What is a surprise is that Minnesota still has the office of Lieutenant Governor. Now is a terrific opportunity to ask the question whether the Minnesota Constitution should be amended to eliminate of the office of Lieutenant Governor?
Lieutenant Governors are a relic of the nineteenth century. In many ways they mimic the office of the US vice-presidency, but with less authority.
As weak as vice-presidents are, lieutenant governors are worse. For the most part their only task is gubernatorial succession or serving during incapacitation. Few states give them any powers, the exception being perhaps Texas where the lieutenant governor has the major powers of appointment. The positions are largely ceremonial, or perhaps no more than a source of political patronage. Better yet, the position of lieutenant governor is no more than a publicly subsidized campaigner for the governor. With few duties the lieutenant governor is free to travel the state on the pretext of official business to push the governor’s agenda. Lieutenant governors also make dandy surrogates to send to funerals. In sum, the constitutional duties of the lieutenant governor are to sit and wait for the governor to die, get sick, travel out of state, or be given something to do by the governor.
The hapless, powerless state of the lieutenant governor is also the case in Minnesota from its very first constitution. Article IV, Section 5 of the Minnesota Constitution is the sum of where the power of the lieutenant governor is described. Here the sole power is described in terms of succession to the governor. Additionally, until 1974 the governor and lieutenant governor were elected separately (that is still the case in 17 states).
More often than not lieutenant governors in Minnesota have been invisible positions, or when visible, a source of problems. In 1962 the separately elected DFL lieutenant governor Karl Rolvaag challenged the Republican governor Elmer Anderson in what would turn out to be the closest state-wide race in Minnesota history. In the end Rolvaag prevailed by 91 votes out of 1.3 million cast. Because of a prolonged recount, the new governor did not take office until March, 1963. In 1974 Rudy Perpich and Wendell Anderson were the first lieutenant governor and governor elected together as a ticket. But when in 1976 Walter Mondale resigned his US Senate seat to become vice-president Anderson resigned as governor so that he could become senator. Perpich then become governor. The scandal surrounding this move and possible deal with Perpich was so great that in 1978 DFLers were swept from office in the state.
Finally there is the case of Governor Tim Pawlenty and his lieutenant Carol Molnau. Ever since Perpich made Marlene Johnson his lieutenant governor in 1982, the tradition in this state has been for the DFL and GOP to nominate women for the number two slot. But while this may sound like progress for women, it is not. The lieutenant governor’s position is no more than a token position of power. Yet Pawlenty to his credit tried to change that, making Molnau the MNDOT commissioner too since as lieutenant governor she had nothing to do. Needless to say, with a bridge collapsing on her watch, her tenure in both positions is less than distinguished.
Given all of the above, is it any surprise that Prettner Solon is not seeking a second term or that Sieben does not want the job? Prior to being lieutenant governor Solon was a powerful legislator in her own right, involved in the policy process. She has largely been excluded from major policy work in the Dayton administration, indicating that she is not part of the governor’s inner circle. She was made Dayton’s running mate because of her Iron Range connections. It may have been her appearance on the ticket that pushed Dayton over the top, making her one of the few lieutenant governors who made a difference in the election. Prettner Solon was made lieutenant governor for political and not policy reasons once elected she has largely been ignored, as have all other lieutenant governors. Were Sieben to become Lieutenant Governor she too would experience a decrease in power and influence–being lieutenant governor is only the illusion of power, mere tokenism in the last generation for aspiring women of influence. Margaret Anderson was more powerful as Speaker of the House than any female lieutenant governor has been or ever will be.
So Prettner Solon stepping down really should be the occasion to ask does Minnesota need the position of lieutenant governor? Eight states do not have lieutenant governors, and there is no indication that these states have any gubernatorial succession problems (often the secretary of state is next in line of succession) or are better or worse governed as a result. There is little evidence that the lieutenant governor contributes to good government or policy making in Minnesota. Overall, Minnesotans should be asking why we are spending money for a position that produces or yields so little? And women should be asking why they continue to be given token political power?
Lieutenant Governors are a relic of the nineteenth century. In many ways they mimic the office of the US vice-presidency, but with less authority.
As weak as vice-presidents are, lieutenant governors are worse. For the most part their only task is gubernatorial succession or serving during incapacitation. Few states give them any powers, the exception being perhaps Texas where the lieutenant governor has the major powers of appointment. The positions are largely ceremonial, or perhaps no more than a source of political patronage. Better yet, the position of lieutenant governor is no more than a publicly subsidized campaigner for the governor. With few duties the lieutenant governor is free to travel the state on the pretext of official business to push the governor’s agenda. Lieutenant governors also make dandy surrogates to send to funerals. In sum, the constitutional duties of the lieutenant governor are to sit and wait for the governor to die, get sick, travel out of state, or be given something to do by the governor.
The hapless, powerless state of the lieutenant governor is also the case in Minnesota from its very first constitution. Article IV, Section 5 of the Minnesota Constitution is the sum of where the power of the lieutenant governor is described. Here the sole power is described in terms of succession to the governor. Additionally, until 1974 the governor and lieutenant governor were elected separately (that is still the case in 17 states).
More often than not lieutenant governors in Minnesota have been invisible positions, or when visible, a source of problems. In 1962 the separately elected DFL lieutenant governor Karl Rolvaag challenged the Republican governor Elmer Anderson in what would turn out to be the closest state-wide race in Minnesota history. In the end Rolvaag prevailed by 91 votes out of 1.3 million cast. Because of a prolonged recount, the new governor did not take office until March, 1963. In 1974 Rudy Perpich and Wendell Anderson were the first lieutenant governor and governor elected together as a ticket. But when in 1976 Walter Mondale resigned his US Senate seat to become vice-president Anderson resigned as governor so that he could become senator. Perpich then become governor. The scandal surrounding this move and possible deal with Perpich was so great that in 1978 DFLers were swept from office in the state.
Finally there is the case of Governor Tim Pawlenty and his lieutenant Carol Molnau. Ever since Perpich made Marlene Johnson his lieutenant governor in 1982, the tradition in this state has been for the DFL and GOP to nominate women for the number two slot. But while this may sound like progress for women, it is not. The lieutenant governor’s position is no more than a token position of power. Yet Pawlenty to his credit tried to change that, making Molnau the MNDOT commissioner too since as lieutenant governor she had nothing to do. Needless to say, with a bridge collapsing on her watch, her tenure in both positions is less than distinguished.
Given all of the above, is it any surprise that Prettner Solon is not seeking a second term or that Sieben does not want the job? Prior to being lieutenant governor Solon was a powerful legislator in her own right, involved in the policy process. She has largely been excluded from major policy work in the Dayton administration, indicating that she is not part of the governor’s inner circle. She was made Dayton’s running mate because of her Iron Range connections. It may have been her appearance on the ticket that pushed Dayton over the top, making her one of the few lieutenant governors who made a difference in the election. Prettner Solon was made lieutenant governor for political and not policy reasons once elected she has largely been ignored, as have all other lieutenant governors. Were Sieben to become Lieutenant Governor she too would experience a decrease in power and influence–being lieutenant governor is only the illusion of power, mere tokenism in the last generation for aspiring women of influence. Margaret Anderson was more powerful as Speaker of the House than any female lieutenant governor has been or ever will be.
So Prettner Solon stepping down really should be the occasion to ask does Minnesota need the position of lieutenant governor? Eight states do not have lieutenant governors, and there is no indication that these states have any gubernatorial succession problems (often the secretary of state is next in line of succession) or are better or worse governed as a result. There is little evidence that the lieutenant governor contributes to good government or policy making in Minnesota. Overall, Minnesotans should be asking why we are spending money for a position that produces or yields so little? And women should be asking why they continue to be given token political power?
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