Occupy Wall Street and Popular Constitutionalism

The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts have departed from the original meaning and have allowed the federal government to seize too much power. As I explained in this article, the Tea Party fits the classic model of “popular constitutionalism” – a popular movement that makes constitutional issues a central focus of its agenda. Until now, such issues have been mostly peripheral for OWS.

Today, however, a group inspired by OWS is holding a series of “Occupy the Courts” protests, which do focus on constitutional issues, mostly attacking the Supreme Court’s campaign finance decisions:

The “Occupy” movement will turn its focus on the nation’s highest court Friday as organizers plan to gather around the Supreme Court building dressed like justices and singing songs of the Motown group, The Supremes.

The event is being held around the two-year anniversary of the Supreme Court decision in the case of Citizens United v. Federal Election Commission, which removed many limits to corporate spending in federal political campaigns, organizers say….

The one-day event dubbed “Occupy the Courts” is organized by the grassroots group called Move to Amend and was inspired by the Occupy Wall Street participants, organizers said.

“Move to Amend volunteers across the USA will lead the charge on the judiciary which created — and continues to expand — corporate personhood rights,” the Occupy the Courts website states.

There is some irony in the OWS protestors campaign against “corporate personhood.” OWS gets a great deal of financial and organizational support from labor unions and other left-wing organizations that are, legally speaking, organized as corporations. Labor unions were, in fact, among the biggest beneficiaries of the Supreme Court’s Citizens United decision, which the OWS protesters revile. Do the protesters believe that labor unions and left-wing nonprofits have First Amendment rights? Should the government have unconstrained authority to forbid unions and other corporate entities from spending money on OWS protests and other forms of political speech? If not, then the OWS protesters cannot categorically reject the idea that people organized as corporations have constitutional rights too.

Perhaps the real argument is that only profit-making corporations should be denied constitutional rights, while unions and nonprofits fall in a different category. But there is nothing in the text, structure, or history of the Constitution to support any such distinction. Freedom of speech applies just as readily to speakers motivated by economic self-interest as those with more altruistic motives. Moreover, economic self-interest is a big part of the motivation of labor unions too. One of the main purposes of unions is to increase the incomes of their members. OWS itself often appeals to economic self-interest. After all, one of their central demands is the redistribution of wealth from “the 1%” to “the 99%,” including OWS activists themselves.

Such contradictions are not unusual in popular constitutionalist movements. Many Tea Party supporters, for example, continue to back the federal War on Drugs, despite the fact that much of it is unconstitutional under a limited, originalist interpretation of congressional power.

Whether OWS addresses the contradiction in their position, and, more generally, tries to develop a coherent constitutional vision remains to be seen. It’s possible that OWS will, over time, make constitutional issues a major part of their agenda, thereby becoming a full-blown popular constitutional movement. It is also possible that they will quickly move back to focusing on other matters. If I had to guess, I would predict that constitutional concerns are unlikely to become a central focus of OWS. They have too many other issues that interest them more. However, the movement is still relatively new and could easily develop in unexpected directions.

UPDATE: Lest there be any doubt, Move to Amend, the OWS offshoot that organized the “Occupy the Courts” protests states on their website that their position is that “human beings, not corporations, are the persons entitled to constitutional rights.” They don’t just think that Citizens United was wrongly decided. They believe that corporate entities should not be able to claim any constitutional rights at all. That, of course, includes not only free speech rights for unions and nonprofit corporations, but also numerous other rights.

UPDATE #2: I should acknowledge an error: Contrary to what I previously thought, most unions are not organized as corporations, but have a separate legal status of their own. I very much regret the mistake and apologize for it.

At the same time, it is important to recognize that unions, like corporations were freed from restrictions on independent campaign-related speech by the Citizens United decision, and the Court’s reasoning in both cases was the same. Moreover, the “corporations aren’t people” argument for restricting corporate speech still applies to unions with equal force. Unions are no more “natural” persons than corporations are. Both are legal entities with special rights, obligations, and privileges defined by the government. In some ways, unions actually have more legal privileges than corporations do. For example, unlike business corporations, they are exempt from federal income taxation.