“People’s Rights Amendment” versus the press

The execrable “People’s Rights Amendment” proposed by so-called liberals such as Nancy Pelosi would not literally repeal the First Amendment rights to speech, religion, and the press. It would only repeal those rights for those people who organize their activities as a corporation — which is to say, nearly every church, newspaper, and activist group.

Eugene Volokh takes a look at what would happen to our press if the amendment were to be enacted:

First, any media organization that wants to be free would thus have to give up the benefits of the corporate form, and will have to organized as a partnership. This will make it much harder for those media organizations to raise operating capital, dealing with changes in ownership as partners die or leave, and the like.

Second, those media organizations that choose to organize as a corporation would have huge practical competitive benefits over organizations that choose to organize as partnerships. As a result, the normal competitive process will . . . give corporate-owned large media organizations the overwhelming majority of the market share.

In the end there would be a tiny free press, and nearly the entire media would be corporate. Thus, the government would be free to censor essentially the entire media.

And no one should doubt that it would, given the opportunity. Citizens United, the case the spawned this horrible idea, was specifically a case in which the government wanted to censor a movie for its political content. In arguing the case, the Obama administration specifically claimed also to have the power to ban other media, such as books and pamphlets.

More generally, what’s going on here is an effort to take the next big step toward totalitarianism. Our constitution limits the power of the federal government in two ways: First, there are positive restraints: the doctrine of enumerated powers says the government has only those powers that are explicitly granted to it. Second, there are negative restraints: some powers that are explicitly denied to it.

The framers of the Constitution originally thought that negative restraints were unnecessary given its system of positive restraints. For example, the Constitution didn’t grant the government the power to censor the press, so it couldn’t. However, they ultimately decided to include a set of negative restraints in the Bill of Rights as well.

It’s good that they did, because the positive restraints are now largely obsolete. Since Wickard v. Filburn, the power to regulate interstate commerce has been nearly all-inclusive. If the Supreme Court upholds Obamacare, there will remain no meaningful positive limitation on the government’s power. At the same time, other safeguards such as the separation of powers are breaking down. Even free elections (a flimsy defense for minority rights in any case) are threatened by the Democrats’ insistence on making fraud as easy as possible.

The negative restraints — which the framers considered nearly redundant — are virtually all we have left. So it’s not too surprising to see the totalitarians like Nancy Pelosi beginning to work on undermining them.

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