Thursday, October 7, 2010

We the People (and Corporations)

   The recent Supreme Court decision in Citizens United v Federal Election Commission has raised a lot of discussion about how corporations will be dominating future elections-and maybe this one coming up.  The complications of campaign financing are very hard to deal with and I have some ideas which I'll discuss in another blog.  But the thing that really gets me most about this case is that the arguments are based on considering corporations as having the same rights as individuals.
    I found it hard to believe that the court could be conceding the same rights to corporations as is allocated to individuals by the constitution.  I haven't read the full decision, but in the summaries and discussion I've seen, there wasn't even any consideration of whether corporations should be treated this way.  The only vague reference I found was Roberts' mention of "associations of people" having the same rights as individuals.  I find the description of a corporation as an association of people pretty inadequate.  I presume he's thinking of the stockholders, but they no more make the decision as to what candidates should be supported than they do how the corporation should price its products.  It's very  clear that the top management, probably usually without even the Board being consulted, decides how much money to spend where.
   I decided to try to find how and where the Court decided that corporations should have all the rights of individuals and it's an unbelievable story.  It goes clear back to 1886 and the case of Santa Clara County v. Southern Pacific Railroad.  That case involved an argument about whether the railroad should be taxed on the full value of properties which were mortgaged even though the law made it clear that individuals should not be.  The Court decided for the railroad and that it should be taxed like an individual.  BUT THERE WAS NO DISCUSSION DURING THE HEARING IF CORPORATIONS SHOULD HAVE THE SAME RIGHTS AS INDIVIDUALS.  And there was no mention in the recorded decision itself of that finding.  
    Instead, in a short summary of the case which always appears on the first page of the decision and is written by a clerk, or reporter, the reporter inserted the line "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 the opinion that it does."  And ever since then corporations have had the same rights as individuals.  Incidentally, the reporter was a former president of a railway company.
    Actually, it's not quite as simple as that.  The Wikipedia entry on Corporate Personhood lists many cases from that one up to recent years which bear in some way on the issue.  Most of  the arguments for personhood seem to depend on the 14th amendment, but I didn't find any one which seemed to settle the issue conclusively.  There are many dissents which explicitly disagree with that position.  Hugo Black stated it very strongly:  "If the people of this nation wish to deprive the states of their sovereign rights to determine what is a fair and just tax upon corporations doing a purely local business within their own state boundaries, there is a way provided by the Constitution to accomplish this purpose. That way does not lie along the course of judicial amendment to that fundamental charter. An amendment having that purpose could be submitted by Congress as provided by the Constitution. I do not believe that the Fourteenth Amendment had that purpose, nor that the people believed it had that purpose, nor that it should be construed as having that purpose."
   This is one of the many issues which I feel should not be determined by trying to figure out what someone meant back at the time of the writing of the Constitution, or in this case the time right after the Civil War.   It seems to me that corporations should have just those rights which the state which provides the incorporation documents explicitly provides.  It should derive no rights automatically from the Constitution.  If congress wants to specify some general rights that all corporations should have it should pass legislation to that effect.
If later Congresses decide to change-limit or add to- those rights, they should be able to. 


  1. Hey Dad, I now have your blog bookmarked with all the other blogs I visit regularly. However, this is the first time I have ever commented on a blog.

    I never understood why corporations were considered to have the rights of individuals. Just on the face of it, it doesn't make sense to me. And considering the leverage and money they exert, and how international the focus of the largest corporations is, "military-industrial complex" doesn't begin to describe the conspiratorial possibilities we can imagine - and document. Linda

  2. Dad,

    I've often been similarly confounded by the rights granted to such an amorphous grouping of people. On the other hand, corporations seem to have the same liabilities and responsibilities as people in many cases -- what do our legal scholars (Trish and Rick) think?

    - Chris