Engineering, Freedom, And The 28th Amendment

A threat to the existence of corporations is, indirectly, a threat to the flourishing of engineering.

In a talk I gave in Doha, Qatar last fall at an engineering ethics conference, I listed some cultural characteristics that seemed to be necessary for engineering to flourish. One of the characteristics I listed was “freedom for organizations” to pursue projects in the marketplace of ideas and goods. Of course, most engineering is done by commercial organizations called corporations, which are legally treated as persons in many ways. In the U.S., this way of treating corporations goes back at least to the 19th century, and farther if you look into English common law. But broadly speaking, any group of people doing something as a group can be regarded in the light of a corporation, and so even nonprofit outfits such as Wikipedia, local churches, and (I suppose) even high-school chess clubs could conceivably be regarded as corporations.

What has the nature of corporations got to do with engineering? A threat to the existence of corporations is, indirectly, a threat to the flourishing of engineering.  And a threat to the freedom, and conceivably the very existence, of corporations has arisen from one Rep. James McGovern of Massachusetts, who used his position in the U.S. House of Representatives last November to introduce a proposed 28th amendment to the Constitution. Now, amendments to the Constitution are among the most difficult legislative objects to enact, because they require not only the approval of two-thirds of both the House and the Senate, but also three-fourths of the state legislatures. So in practical terms, the proposed amendment is very likely to fall by the wayside before it could get within hailing distance of actually becoming law. But even a small danger of a terrible tragedy is worth paying attention to, as students of engineering disasters know.

Why would passage of this amendment be so bad? Because it revokes all the rights and freedoms reserved in the Constitution for the people, from anything you can conceivably call a “corporation.” Individual “natural” persons would still have freedom of speech, the press, religion, and so on. But two or more of them together, as long as such a grouping could be construed as a corporation, would be at the mercy of Congress, which could do anything it liked in terms of regulation: prohibit any action, tax the entity to death, or even prohibit its very existence.

The alleged rationale for this amendment is the 2010 U.S. Supreme Court decision (Citizens United v. Federal Election Commission) that upheld the right of corporations to make political expenditures. In the view of some, this decision gave too much power to deep-pocketed corporations, which can now buy political ads with impunity. While there are deep and serious problems with the way political campaigns are funded in the U.S., the cure proposed by Rep. McGovern would be a great deal worse than the disease.

Just to give a specific example, consider this blog you are reading. It is appearing through the courtesy of one of the largest corporations in the U.S.: Google.  While I as an individual am venting my opinion on what Rep. McGovern is doing, it is the corporation known as Google which is actually putting my words out there for other people to read. If the proposed 28th amendment became law and Congress took a dislike to anything -- anything at all -- that anybody said in any blog that Google puts online, there would be no obstacle whatsoever to stop Congress from passing a law that gave Rep. McGovern’s office censorship rights over everything Google does. While there is a clause in the amendment that says nothing shall be construed to limit the “people’s” rights, the word “people” is explicitly defined in the previous clause to exclude corporations. Because posting all those blogs is a corporate act -- you can’t find the one individual at Google solely responsible for operating -- it is not protected by that construal clause, and out it goes if Congress wills.

This matter came to my attention in a column written by George Will, and he has plenty of other examples of what havoc could result from the proposed amendment. This proposal is only the latest in a series of unwise and intemperate actions that seem to be getting more frequent in Washington.

Freedom, though vitally important in a democracy, is not an absolute foundational right. The enjoyment of freedom, for engineers as for everyone else, comes with the obligation to use freedom responsibly. For engineers, this means thinking about the consequences of actions and projects that affect other people. For legislators such as Rep. McGovern, it means considering the larger consequences of one’s proposed legislation, and how it could cause problems much worse than the original one it was designed to solve. We can thank the wise and prudent framers of the original Constitution that they made the amendment process as difficult and cumbersome as it is. It is hard enough to block ultimately frivolous and inimical proposals such as Rep. McGovern’s, but straightforward enough to allow enactment of changes for which there is sufficient national consensus. But the fact that even one duly elected member of Congress could be so shortsighted and imprudent as to propose the de-personalizing of all corporations is a bad sign that wisdom and prudence are getting in short supply.

Sources:George Will’s syndicated column on May 6, 2012 was entitled “Taking a Scythe to the Bill of Rights,” and can be found at many media outlets, for example—-taking-scythe-bill-rights.html. Rep. McGovern’s own explanation of his reasoning can be found at the website, which also has a link to the text of the proposed amendment.