Legislating titles: “Justice” or “Ms.” Kagan?

July 24th, 2010

It used to be that the ‘litmus tests’ in confirmation hearings for Supreme Court Justices were about whether candidates were prone to narrow versus broad interpretations of constitutional doctrines. How closely do the original words of the framers of that document approach current issues and customs which might fall under court scrutiny?

These days, the litmus test appears to be more along the lines of whether a justice will abide by existing constitutional law or be willing to dispense with it altogether. That isn’t limited to their views of Roe V Wade, which made abortion legal, but now involves decisions about whether businesses–already considered to be citizens–can be considered beyond the realm of US law-makers. This was the subject of this New York Times editorial, “The Republicans and the Constitution”. The clause referred to is the one granting Congress the right to make laws affecting commerce. The concepts of ‘capitalism’ and the ‘free-market economy’ may infer a hands-off approach to business, but Congress does retain legislative powers over commercial enterprise. Before you take umbrage with such interference, consider your teen-aged sons and daughters who are looking for summer jobs. Now how do you feel about child labor laws and minimum wage guarantees? It isn’t just about the privilege to tax businesses but also safeguarding consumers through passage of product safety laws which is at stake in this debate.

Here was my posted commentary:

HIGHLIGHT (what’s this?)
Barbara Rubin
July 20th, 2010
10:44 am

This brilliant editorial returns us to a more sane view of government for, and by, the people. The states fought for a Bill of Rights to restrain lawmakers from overly restricting the life options of citizens, including their ability to climb the ladder of success in any way they chose to define it. Republicans (and many Democrats) continue to regard the citizens of the United States as threats from which the more important paper citizens, (corporations), must be defended. The commerce clause is the only defense left for citizens who have become used to being defined as consumers and laborers. Laborers are mere assets belonging to businesses now rather than an integral part of their operations. Consumers are restrained from putting too many businesses out of business through restrictions upon information about product ingredients and any potential health hazards they pose.

Labels matter if we are to restore our government to its constitutional origins. Language shapes thought and citizens have to reclaim their identities again if we are to reclaim our eligibility for life, liberty and the pursuit of happiness. Are we citizens or not? Do corporate claims to citizenship automatically put human citizens on a less equal footing with them?

Regulation of commerce is the only thing permitting many Americans to access the essentials of life. The minimum wage offers access to food and shelter although some businesses believe they can limit the hours of employees so that taxpayers cover traditional benefits which used to accompany full time employment. Now a benefits package is eligibility for Medicaid, housing vouchers and food stamps. Caps have even been suggested on labor’s potential to increase income beyond a particular level through exemptions from minimum wage mandates- if there were outside sources of income like tips based in the largess of restaurant patrons. Apparently corporate citizens must benefit from any expenditure of effort on the part of a laborer lest they earn a place above their assigned ‘stations’ or class membership.

Life and liberty are surely threatened by leaving allowable pollution levels to the discretion of producers while tax payers cover the costs of its morbidity/mortality. Should that cost become excessive, it is always possible to reduce it by having tax payers pay for the clean-up, and cover charges for catastrophic illnesses like cancer, as the lesser of evils.

What if we experimented by defining corporations as something other than citizens with the right to sue the government for any loss of profits (under NAFTA, chapter 11) should restrictions be imposed? You know, the rules which might benefit those ‘other citizens’; the ones with beating hearts.

Barbara Rubin
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Categories: Newspaper Commentary, NY Times, Published

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