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The First Amendment

Updated -- 9 September 2003

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”  -- First Amendment to the Constitution of the United States of America  

Two aspects on the subject are presented here.  One is an excerpted version of a longer article in Rachel’s Environment & Health Weekly #699, dated June 1, 2000, and which provides a historical basis for the misuse of the First Amendment.  It provides an excellent review of how the insertion into the Constitution in 1787 of  the “commerce clause” and the “contracts clause”, and later in the exact wording of the First Amendment to the Constitution, consolidated the power of the property-owning class in the young republic -- an aspect which continues until the present day.  

The second aspect is the continuing loss of the freedoms in the aftermath of 9-11-2001, as viewed from a slightly more conspiratorial attitude.  [Of course, Conspiracies may be the stuff of paranoia, but paranoia is the illusion that people are out to get you.  If they really are out to get your, it’s not paranoia; it’s reality!]   


First, from Rachel’s Environment & Health Weekly #699:  

Peter Kellman, in discussing The First Amendment, writes (in part):  

“The First Amendment is commonly believed to guarantee us freedom of the press, speech and assembly. As we know, freedom of the press (today’s Media) only applies to those who own the press.  As for freedom of speech and assembly, what the Constitution actually guarantees is, ‘Congress shall make no law... abridging the freedom of speech, or the press; or the right of the people peaceably to assemble.’  Let us be clear here.  The Constitution says that, ‘Congress shall make no law...’  That is, there will be no PUBLIC law denying people free speech.  But what about the PRIVATE law?  The Constitution does not say that employers cannot deny workers freedom of speech and assembly.  The Constitution speaks to what the CONGRESS will not do; it does not speak to what PEOPLE WHO OWN PROPERTY will not do.  In other words, if we want freedom of speech, assembly and association, we need to amend the First Amendment to say: ‘Congress shall guarantee the people’s right to freedom of religion, the press, speech, assembly and association. These rights and the government’s responsibility to promote the General Welfare and Human Rights shall take precedence over all other matters.’”   [emphasis added]

Corporations are not mentioned in the Constitution for the United States of America.  

However, in the early days of the republic, an effort was made to convert the charter of a private school (Dartmouth College) into a public school, the intent being to ensure that the republican form of government could continue by way of educating the young concerning the essentials of such a government.  Dartmouth, having been established primarily to “educate the savage heathens” and later to act as a cog in the British colonial machinery, sued in court to overturn the legislative act which would have accomplished the republican’s aim.   

“The state supreme court ruled in favor of the legislature arguing that the legislature had the right to change the charter of the college ‘... because it is a matter of too great moment, too intimately connected with the public welfare and prosperity, to be thus entrusted in the hands of a few.  The education of the rising generation is a matter of the highest public concerns, and is worthy of the best attention of every legislature.’”  

The foregoing paragraph is worth reading more than once.  The key idea is never to entrust the few with the public welfare and prosperity.  This is essential to freedom!

But when the decision was appealed to the U.S. Supreme Court (the organization which had been set up to be the final protector of the propertied class), the Court argued that a corporation was a private contract, not a public law.  And while the State had created the corporation when it issued a charter, the State was not sovereign over the corporation, but was simply a party of the contract [1].  This implied the corporation was protected from State interference by the “contracts clause” of the Constitution.  In effect, by reversing the State supreme court, the US Supreme court gave the corporate form a constitutional life."  [emphasis added]

It's an unfortunate aspect of our constitutional Republic that the US Supreme court keeps reversing the decisions of State supreme courts.  This can sometimes have results which are good (as in civil rights), but some of the most serious interpretations of the constitution have left the nation at the mercy of a small number of horribly-conceived, legally-contrived interpretations of the constitution.  For example...

“The Dartmouth decision of 1819 established the principle that corporations get  constitutional protection because they are private contracts. Then in 1886 the U.S. Supreme Court ruled -- in SANTA CLARA V. SOUTHERN PACIFIC RAILROAD -- that corporations also have the constitutional shield of ‘equal protection’ as persons under the 14th Amendment.  This means that corporations are recognized constitutionally and that corporate activity has 14th Amendment ‘equal protection.’  In other words corporations gain significant constitutional protections at a time, 1886, when most flesh and blood persons -- women, Native Americans and once again most African American men -- were still denied the right to vote, denied equal protection.”

The extension (or interpretation) of the 14th amendment, which gives rights to corporations, even when said legal entities are also enjoying limited liability, is one of the most far-reaching and anti-freedom concepts in the Constitution.  To legally recognize a legally fictitious entity such as a corporation as having the equal protection rights of a person is simply grotesque, if not ludicrous.

Note that:  

“1. The 14th Amendment states, ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws’. [emphasis added]. The 14th Amendment was added to the Constitution in 1868 to protect the rights of freed slaves, but as Supreme Court Justice Hugo Black pointed out in CONNECTICUT GENERAL CO. V. JOHNSON (1938), ‘Of the cases in this court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of one percent invoked it in protection of the Negro race, and more than fifty percent asked that its benefits be extended to corporations.’  

“2. In MINOR V. HAPPERSETT (1875) the women of Ohio argued that, under the 14th Amendment, protection of due process, the U.S. Constitution established that their right to vote could not be denied by the state.  The U.S. Supreme Court rejected that argument. Women received constitutional protection for the right to vote 48 years later in 1920 when the 19th Amendment to the Constitution established that the right to vote could not be denied on the basis of sex.  

“3. While the courts were extending ‘rights’ to corporate persons and denying them to women, by 1920 the courts had struck down roughly 300 labor laws. [2]  

“4. More than 1,800 injunctions against strikes were issued between 1880 and 1931. Of the 118 labor injunctions heard in federal courts between 1901 and 1928, 70 of them were issued ex parte, i.e. without giving the defendants the opportunity to be heard because the defendants were not even notified of the hearing. [3]  All the defendants in these cases were labor unions.”  

Clearly, the Supreme Court has indeed protected the propertied class, by creating out of thin air protection for fictitious entities such as corporations -- who simultaneously have limited liability for their acts -- by labeling them persons, while for human rights, the claim of women and Negroes being persons has fallen on deaf ears.  

The States did take one action which served to avoid some of the problems created by the US Supreme Court’s first pro-corporation decision; they enacted “reserve clauses”, which would allow them to unilaterally amend or cancel a corporate charter. [4]  Unfortunately, such clauses do not affect many transnational corporations (who avoided charters within the United States), and because of the rules of the World Trade Organization, these same corporations can now ignore federal and state laws if such laws limit the corporation’s profitability, ease in conducting business, or any other limitation on their operation.  

Remember that the Constitution also gives precedence of treaties over constitutional rights of human beings.  There are some big loop holes in the Constitution!  



[1] For more details about the Dartmouth case, send a request to POCLAD for Vol. 2, No. 2 and Vol. 2, No. 3 of their quarterly publication BY WHAT AUTHORITY.  E-mail people@poclad.org, or phone (508) 398-1145.

[2] William B. Forbath, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (Cambridge, Mass.: Harvard University Press, 1991), pg. 38.

[3] Leon Fink, IN SEARCH OF THE WORKING CLASS: ESSAYS IN AMERICAN LABOR HISTORY AND POLITICAL CULTURE (Urbana, Ill.: University of Illinois Press, 1994), pg. 251.

[4] All state and federal laws are included, embedded, in all private contracts. Therefore if a state passes a law reserving the right to unilaterally change a contract it can do so. These ‘reserve clause’ rights are considered to be part of every corporate charter created by the state. Therefore when a corporation is chartered, the parties involved agree that the state has the right to change the corporate charter without the consent of the other parties.  


Peter Kellman works for the Program on Corporations, Law and Democracy (POCLAD). For information on POCLAD, E-mail people@poclad.org; or www.poclad.org; or phone: (508) 398-1145; or mail: P.O. Box 246, So. Yarmouth, MA 02664-0246.


RACHEL’S ENVIRONMENT & HEALTH WEEKLY -- Environmental Research Foundation; P.O. Box 5036, Annapolis, MD  21403; Fax (410) 263-8944; E-mail: erf@rachel.org


All back issues are available by E-mail: send E-mail to info@rachel.org with the single word HELP in the message.  Back issues are also available from http://www.rachel.org.  To start your own free subscription, send E-mail to listserv@rachel.org.


The second article is from <http://www.roanoke.com/roatimes/index.html> and is dated January 02, 2003.  It may sound slightly more conspiratorial [actually it is!], but it also has the unfortunate aspect [“unfortunate” for those more prone to bury their heads in the sand] of being highly rational and to the point.  After all, comparing modern day America and Nazi Germany is... well... not exactly a pleasant thought, even if there is considerable validity to the argument.  Sorry about that.


Totalitarianism nears

Without protest, Americans are giving up freedom  


IN NAZI Germany at this time of year, people freely shopped in large department stores for gifts for family and friends. The streets were full of traffic. It was “business as usual” for most of the citizens. While in the colonial states conquered by the Nazis, and in the concentrations camps for Jews, gays and communists, life was a living nightmare of dehumanization and human-rights violations.  

In the United States today, people freely shop in large department stores for gifts, and the streets are full of traffic. While in our most recent victim states of Afghanistan, Iraq under murderous sanctions, Argentina after engineering its economic collapse, and Colombia under U.S. military aid for repression, life is a living nightmare of dehumanization and human-rights violations.  

But what once separated the United States from Nazi Germany was the protection of civil liberties for American citizens. People of Germany had no rights and did not care. Those few who did care were so terrified of their government that they did not dare to speak out. Those who did speak out were declared “enemy agents” and sent to concentration camps.

Today, people of the United States have given up their rights through the “Patriot Act,” the “Homeland Security Act” and the Pentagon’s new system of “Total Information Awareness.” The astonishing thing about this “land of the free” is that most Americans now have no effective rights and do not care.  

As long as they are free to shop in department stores and have traffic in the streets (with automobiles burning oil stolen from dying Iraqi children), they do not care. And to a greater degree every day, those few who do care about our liberties and rights are too terrified of our government to speak out.  

The so-called “Patriot Act” expanded our government’s secret search and wiretapping powers enormously. It empowered racial profiling as a recognized police practice and allowed broad sweeps of people of Middle Eastern or Asian origin. It effectively abolished immigrants’ rights, allowing noncitizens to be held in secret locations on secret “evidence” without right to an attorney, for as long as the government wishes.  

The government now has the power to enter your home or your computer and secretly record whatever they find without ever having to notify you. They do not even have to obtain a warrant from a publicly accountable judge showing reasonable suspicion that a crime is being committed.  

Wisconsin Democratic Sen. Russ Feingold spoke the following words from the Senate floor on Oct. 11, 2001, when he was the only senator to vote against Attorney General John Ashcroft’s USA Patriot Act: “There is no doubt that if we lived in a police state, it would be easier to catch terrorists.  If we lived in a country where police were allowed to search your home at any time for any reason; if we lived in a country where the government is entitled to open your mail, eavesdrop on your phone conversations, or intercept your e-mail communications; if we lived in a country where people could be held in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, the government would probably discover more terrorists or would-be terrorists! But that wouldn’t be a country in which we would want to live.”  

But today, it has gotten worse with the passage of the Homeland Security Act. Notice that these titles, “Patriot” and “Homeland,” sound very much like the language of the Nazis. A common slogan of the Nazi regime was “the highest freedom is a noble slavery of the heart.” People are free, the slogan meant, when they have enslaved their hearts to the “homeland” in absolute obedience to their government. “Deutschland, Deckhand, uber alles!” they shouted. Blind loyalty, patriotism, and emotion must triumph over liberty, reason and sound judgment.  

Under the U.S. Homeland Security Act (our rights again given away freely by a bipartisan Congress), 22 U.S. agencies are combined in order to achieve “total information awareness” on every American citizen. The government will soon be amassing a file on every American that includes every magazine subscription, credit card purchase, Web site visit, medical record, library record, bank deposit or withdrawals, every airline purchase, as well as judicial, divorce records, and so on. This will be recorded in a central data base, not by a publicly accountable authority, but by the Pentagon, which already operates in total secrecy from the American public.  

Government intimidation for political reasons is real and it has begun. Our government already is using its secret data bases to harass Americans. Political activists checking in at airports at the airline desk have had their names come up from a secret government list as “flight risks.” They and their luggage have been supersearched to the point where they are made to miss their flights, and then released to fly. Obviously if they were really “flight risks,” they would not be allowed to fly.  

Attorneys have found that their attorney-client privilege has all but disappeared. The government has even placed hidden cameras in prisons to record attorney discussions with their clients. The government has begun harassing people maintaining Web sites they consider politically objectionable.  

The Justice Department announced a plan to use its newfound power to designate U.S. citizens as “enemy combatants” to place such people in concentration camps. Declaring them “enemy combatants” would strip them of their constitutional rights, their access to the courts and allow the government to indefinitely hold them without trial.  

This is identical in purpose to some of the Nazi concentration camps.  

Do we citizens care at all about the future of our children or the plight of the millions of citizens in this country of Arab descent, or those who nonviolently oppose government policy? We have repeated for so long the slogan “it can't happen here.” But the darkness and terror of totalitarianism is coming rapidly.  

Do we have the courage and integrity to speak out now, before it is too late? Or will we continue to freely shop in our large department stores for gifts for family and friends - as they did in Nazi Germany.  

GLEN T. MARTIN is professor of philosophy and religious studies at Radford University  

Prof. Glen T. Martin, Box 6943, Radford University, Radford VA 24142, Email: Gmartin@ runet.edu  



Constitution of the United States of America  

Benjamin Franklin         Justice        Liberty         Justice, Order, and Law

Forward to:

Second Amendment         Missing 13th Amendment?         The (9) Supremes

Counting Votes         A Case for Free Elections

Redistricting         Privacy         9-11-2001         Free Speech


The Milgram Effect

Freedom of Religion        Holy War        The Rules of Holy War

Racism and Culturalism         Multiculturalism         Perils of Immigration

Free Speech         The (9) Supremes         The Halls of SCOTUS

An American Third Party         A Third Party That Knows How to Party




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