Monday, January 25, 2010

Well done, Mr. Kennedy!

By William Fisher

OK, if you really read Mr. Justice Kennedy's opinion for the Supreme Court's majority in the Citizens United case, you just have to agree with his reasoning.

No one wants to limit free speech. It would be unconstitutional! The First Amendment is one of our proudest achievements.

So of course, if corporations are just like individual persons, they ought to enjoy exactly the same free speech rights as the rest of us do. No more, no less.

Right! But wait just a minim here folks. How did corporations get to be persons?

It seems sort of counter-intuitive. After all, corporations don't serve in the armed forces defending our country. They don't show up for jury duty. They don't marry and have kids and mortgages. They don't vote. In fact, come to think of it, they don't do almost all the things people do.

So how did they ever get to be people?

So I read the Constitution. And I couldn't find a word about corporations being people.

As a non-lawyer, I then figured there must be a bunch of legal eagles somewhere in the picture. Maybe one of those pesky activist judges.

So I looked.

What I learned from Wikipedia was that back in 1886, there was a case that went to the Supreme Court called Santa Clara County v. Southern Pacific Railroad Company. Before this case was argued, Supreme Court Justice Morrison Remick Waite simply pronounced, as follows:

The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.

Thus, Wikipedia tells me, "the doctrine of corporate personhood, which subsequently became a cornerstone of corporate law, was introduced into this 1886 decision without argument."

And then the court reporter duly entered into the summary record of the Court's findings that:

The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.

Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of persons under the law, prepared the way for the rise of global corporate rule, and thereby changed the course of history.

Since then, the Feds and many State governments have passed laws limiting the rights of these corporate "people" to express themselves. Clearly unconstitutional.

Wait, there's more. Wikipedia gives me a bit of special insight into this momentous decision. Here it is: "The doctrine of corporate personhood creates an interesting legal contradiction. The corporation is owned by its shareholders and is therefore their property. If it is also a legal person, then it is a person owned by others and thus exists in a condition of slavery -- a status explicitly forbidden by the Thirteenth Amendment to the Constitution. So is a corporation a person illegally held in servitude by its shareholders? Or is it a person who enjoys the rights of personhood that take precedence over the presumed ownership rights of its shareholders? So far as I have been able to determine, this contradiction has not been directly addressed by the courts."

I was having trouble believing what I was learning, so I turned to my friend Peter Shane, a law professor at Ohio State and one of the country's most respected Constitutional scholars. Here's what he told me:

"The most amazing thing about corporate status under the Constitution is that this fundamental question was resolved by the Supreme Court without any real discussion whatever. Scalia is supposed to be an originalist? I doubt anyone in 1789 understood the First Amendment as a limitation on Congress's capacity to regulate corporations. As for corporations being 'persons' under the Fourteenth Amendment, was the purpose of the Civil War to free corporations from state control? This is historical nonsense."

He also reminded me of the Roberts confirmation hearing I watched. "Remember," he said, "how Chief Justice Roberts said he would just be an umpire on the Court, calling balls and strikes? The Citizens United decision just exposes once again how radically activist the Roberts Court is, inventing law as it goes along. Roberts makes Rehnquist look like Brennan. The American people should immediately demand that Congress propose a constitutional amendment to make the right to vote in all elections a federal right and to authorize Congress and the states to regulate corporate participation in electoral politics."

Well, good luck with that Amendment, Peter. That's a long and tortuous process.

Meanwhile, we'll all have to take a big breath and sit back and wait to see if an even greater torrent of corporate money starts pouring into the political process - though it's not easy to visualize anyone actually having any more money.

Like a zillion other people, I invest in a bunch of mutual funds and a few equities. And like the rest of us, I do that to earn money. That's as far as I want the companies I invest in to go in representing me. Making money.
That's it.

I don't want to hear them saying they represent me politically or in any other way. They don't speak for me. Who they actually speak for is arguable. You might say they speak for their shareholders, that it's the shareholders who own the company. If that's true, then us shareholders should get to have a vote before the first penny of political booty is dispensed.

Corporations aren't doing that now. With the Supremes behind them, why would they start giving me a voice? Besides, that would make me a slave-owner, and I can't afford the housekeeping help I have now.

Some pundits have been saying that the Citizens United decision was downright radical. Well, I guess you could say that. After all, it did reverse about a hundred years of jurisprudence.

But what keeps me confused is that if the guys in the black robes wanted to be truly radical they could overturn the 1886 Santa Clara County decision.

Then we wouldn't have to be running about worrying about what more mischief the corporations will do with their newly reaffirmed personhood.