The Sad Irony of the Recent Supreme Court Decision
A day before the anniversary of Roe vs Wade, the Supreme Court has given another major court decision: a 63 year old law which forbade corporations and unions from directly funding political campaign advertisements, as with later campaign finance reforms, was struck down on the basis that it went against the Constitution because it limited free speech. This time, many of the people who rightfully decried Roe vs Wade have applauded the Supreme Court’s ruling. The sad irony of the situation is easy to see.
Now corporations have been given the Constitutional rights of persons, while babies are denied this. The questions I have with this are all over the place, but I think the most important one is philosophical: what is this telling us about the United States and its notion of persons? Why can corporations, which do not follow any traditional definition of the person, be given the rights of a person? What exactly is a person according to the United States?
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There’s an interesting piece on National Journal Online by Stuart Taylor that begins:
The case wasn’t about defining the concept of a person, of which the Constitution says nothing. It was about the United States constitution and the limits of free political speech.
Zach
Certainly it is not about defining the concept of person, but using an undeclared definition. Which once again goes to my question: what is the philosophical conception we now have about persons, if we follow what the Supreme Court has decided (babies: no rights, corporations: rights).
The case wasn’t about defining the concept of a person, of which the Constitution says nothing. It was about the United States constitution and the limits of free political speech.
Zach,
You are just wrong.
From one of many discussions on the web:
Here’s another
I am not recommending the sites or endorsing the opinions. I’m just posting these to show that the decision had very much to do with defining what was a person with a right to free speech.
Henry
Henry in the end a Corporation is a assocaition of persons which I think is the Court’s point and thus they have right as a association of persons to have the right to speech.
It is similar to “property rights”. Well the property is of course not alive nor can vote but we all know what we are talking about. We are talking about the rights of the person that owns the property.
There seems to be a lot of attention to the corporation fiction here as it is called. I guess I don’t think the Court really did anything revolutionary here since Corporations(basically those association of People in it) have had recognized First amendment rights
Corporations also have a whole host of other rights. I am not hearing people say the Govt can come in and do unreasonable search and seizures at a Corporation because it is not a REAL person. I don’t think the Government can forbid religious activities on Corporation grounds because it is not a real person. I don’t think a Governemnt can do a Taking without compensation of a Corporations property. We seem to recognize this in all these other cases that yes there a legal fiction of a Corporation but it is areal assocaition of real persons
So I am not sure the Court again is doing anything radical here.
That being said I do hope one day the GOVT recognizes as persons unborn life.
David as to the tribune article
“And that was before the U.S. Supreme Court issued its astonishing 5-4 ruling Thursday that corporations, as legally recognized “people,” enjoy the same rights under the Constitution as flesh-and-blood people….”
I dont think the Court is saying that at all or making such and absolute point.
and
“although, if the First Amendment applies to corporations, one wonders why the justices stopped there), but there’s no limit to what they can spend in support of or against this or that candidate or issue.”
In a long line of precedents the Courts has recognized that Corporations have First Amendment protections. The Editors I suspect realize that but are just getting a little carried away.
SO I think the
The ruling indicates:
1.) A belief in the right of individuals to express political opinions in the days preceding an election;
2.) A belief in the right of individuals to form organizations for various purposes, amongst which may be to express solidarity in their support for a political opinion or candidate;
3.) A belief that expression of political opinion is one of the rights which a person may delegate to employees or representatives to perform on his behalf.
It follows that persons who own/control an organization, if they support a particular political opinion, may delegate to that organization as to a proxy the expression of their political opinions, which expression is protected under the First Amendment.
What we have here is more akin to persons who wish to express something hiring a bunch of people to express it for them — like a bereaved family hiring a crowd of professional mourners to wail in the streets during a funeral procession, as in some Middle Eastern cultures. The only difference here is that in this case the expressive proxy isn’t a “hired-gun” type of organization with no prior relation to the persons doing the hiring, but rather one with which they already have a longstanding relationship as owners or employees.
Therefore, this ruling need not (I do not say “does not,” I say need not) have anything to do with whether a corporation is, as a legal fiction, considered a “person.” That concept could be removed without affecting the First Amendment principle a whit.
The ruling’s conclusion (that corporations can conduct political speech in the last few weeks before an election) is correct.
Its reasoning takes into account a standing principle in American law which, I grant, is open to question (the nature and extent of corporate “legal personhood”). But had that principle been absent, the same (correct) conclusion would be arrived at.
It is true that the unborn ought to be considered persons, with attendant inalienable rights. That they aren’t is tragic, outrageous, and may fall just shy of “when in the course of human events” material. All true.
And so, yes, it’s ironic that we should have as broad a notion of corporate personhood as we do in American law, while failing to defend the unborn.
But I don’t see this particular ruling being an especially strong expression of corporate legal personhood, since, if there were no such notion in American law, the same conclusion could and should be drawn in another way.
The more appropriate case for showing that irony would be a case that allowed corporate “persons” to do things that they couldn’t otherwise do, or, even more ironically, things that real persons can’t do.
My degree in constitutional law comes from “Google University,” but it does seem to me that one of the critical points of the case was that a corporation has been granted the same right to freedom of speech as a human individual — that is, a corporate person and a natural person are equivalent when it comes to the matter of freedom of speech despite the fact that “[s]ince 1907, when Congress limited corporate contributions to candidates, there has been plenty of law viewing the corporation, not as a ‘person’ in the same sense as an individual, but as a creation of the state with ‘personhood’ as a legal fiction.”
So I don’t think it is incorrect to say that corporations (and unions) have been granted one of the rights of natural persons that they did not have before — and by an activist court that went out of its way to decide more than had been put before it — and the unborn have none of the rights of natural persons (and never had). I certainly hope the court does not latch on to the next case with some relation to life issues to request that the parties before the court argue whether or not Roe v Wade should be overturned. On the other hand, it does seem strange that a court with five Catholics on it has done nothing that I can think of to advance the right to life of what they are bound to believe — as Catholics — are human persons with no less right to life than “walking around person” (as Scalia put it).
David,
No, Zach is right. Both the majority and dissent in the Citizen’s United case agreed that corporations were persons and were protected by the First Amendment.
I do agree with the point of Henry’s post, which is that it’s sad corporations are granted legal protections while the unborn aren’t. But the answer is to protect the unborn, not to restrict First Amendment rights.
By the way, discussion about the Santa Clara case is kind of beside the point here, as that case had to do with the 14th amendment, whereas Citizen’s United involved a federal (not a state) law. The idea that corporations have constitutional rights long predates the Santa Clara decision.
I’m still waiting for those who dub themselves “conservative” to rail against this latest judicial over reach by activist judges. But I shall wait in vain. This whole canard is based on the content of “judicial activism”, not the principle.
MM,
It’s not activism to strike down laws that are actually in conflict with the constitution. That’s just the Supreme Court doing its job.
Why did you all jump on the ‘corporation’ donations but ignore the ‘union’ donations? This has also been done on all the news coverage as well. For heavens sake,PAC groups throw millions at elections; do you really think that another corporate or union donation will matter? I feel that any group should be able to donate what they wish as long as the amount and the names of every one associated with the group are listed on the internet. And as a lawyer I can tell you that this is not an activist decision at all- it is simply acknowledging that what you give with one hand- a corporation is an entity that can be taxed and sued- can not be taken away with the other- the right to free speech.
I do not see in the Constitution “corporations” as being given any rights. This is not a defense of the Constitution and the First Amendment, this is a defense of the corporation and making it something it is not. Now that the corporation is a legal person, once again the question is — what exactly is a person? I don’t have all the qualities of the corporation, does that now make me sup-person (similar to how babies are somehow not seen to possess all the qualities of the person, either)?
MM,
I’m on the conservative side of the aisle, generally speaking. I’m not clear why you think it’s “activist.” Therefore, I’m as yet unaware of anything I should rail against.
Is it because it rejects stare decisis? I think that’s the one kind of activism conservatives are okay with, in situations where the standing ruling involves interpretations which are wildly divorced from framer’s intent (e.g. nearly anything dealing with the Commerce Clause). Conservatives who want Roe overturned obviously think that there are some things which should always override stare.
As an aside, I don’t think that conservatives will benefit from this ruling at election time: Corporate money goes for Democrats nigh on as much as Republicans, and when for Republicans, generally it’s the least ideological ones: Specters, not Santorums. All in all, this may make life more difficult for conservatives.
So if you show me that this ruling is activist for reasons that conservatives generally decry, and then ask why they aren’t complaining in this case, my guess would NOT be that they think this will actually give them any competitive advantage in elections. I don’t think it will, and I don’t think THEY think so, either.
I’m not even sure it’ll help Republicans, but if it does, it’ll mostly help those Republicans conservatives call RINOs. Not the kind of outcome a conservative would defy his own judicial philosophy to achieve!
So, if you can persuasively demonstrate that this ruling constitutes the kind of activism conservatives usually oppose (I’m entirely open to persuasion on that), then I’ll guess that conservatives aren’t crying foul for a different reason: Namely, that their favorite jurists made the ruling, and, y’know, when the guys you normally trust make a ruling, you’re less inclined to go over it with a fine-toothed comb trying to find fault.
Also, Democrats in Congress are having histrionics about it, so your average conservative, if he lacks the time to look into the details will say to himself, “Gee, this must have been a great ruling: All the right people are upset.”
This isn’t complicated. It’s a matter of the super-rich asserting their right to control the political system of the country which they firmly believe it is their right, by virtue of the wealth they generate, to control.
Ayn Rand lays it all out in her writings, particularly the novel, “Atlas Shrugged.”
Democracy, which empowers “the mob,” is antithetical to the philosophy of the plutocrats.
Leona Helmsley once succinctly exposed the thinking of the super-rich; when charged with tax evasion, she publicly uttered the classic line: “Taxes are for the little people.”
Well, you and I are “the little people” and the Supreme Court has just ruled against us. Get used to it. It’s going to get much worse.
Why did you all jump on the ‘corporation’ donations but ignore the ‘union’ donations?
Probably because many of us in the labor movement doo not welcome this ruling event though it permits us to spend dues money on political ads.
I will say this. In the labor movement, our political endorsemens are made in a democratic process. Every union member can go to a union meeting and speak his peace on his thoughts regarding endorsements. And our endorsements are endorsements. We are not coy about it and members can expect to get an annoying phonecall at dinner time from the union phone bank about the endorsed candidate as well as a mailing on the candidate’s voting record.
Corporations keep their activities secret from their shareholders and even lie about it (I once telephoned a company I owned stock in about their support for a candidate in a state race that allowed direct corporate contributions. They falesly and absolutely denied they did this).
Worse, while this is supposed to be about “free speech”, the corporations don’t even “speak.” You won’t see a commerical saying “We are the Toyota Motor Company and this is why we think you should support candidate X.” You will see Toyota working off polling showing that voters could be moved to their candidate on the gun control issue and then paying for a commerical promoting their candidate’s support for “2nd Amendment right.” But also expect Toyota to be aghast if you suggested to them their company had views on gun control.
My union and most others have a transparent system for our federal politcal endorsements. The delegates to the National Convention adopt resolutions on the legislation we support or oppose. At the end of the congressional session, a voting record is assembled and distributed to the membership. The endorsements will closely follow the voting record.
Try calling a company you are a shareholder in. Tell them you are concerned about the success of the company and you want a list of the candidates the company is endorsing and the legislative issues the company has a position on. You will get nowhere.
No, Zach is right. Both the majority and dissent in the Citizen’s United case agreed that corporations were persons and were protected by the First Amendment.
Blackadder,
I disagree. Zach said, “The case wasn’t about defining the concept of a person, of which the Constitution says nothing.” It is true the court didn’t wrestle with the question of what a person is in such a way as to alter the meaning of Roe v Wade. However, the court did confer on a “corporate person” the same rights to free speech as a natural person, overturning 100 years of law and precedent. So it dealt with the question of what kind of person a corporate person is.
From Justice Stevens’ dissent:
Scalia, on 60 Minutes said, “My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.”
Scalia acknowledges here that an unborn child is a “helpless human being.” He is not denying that an unborn person is a person. He is saying that as he interprets the Constitution, it was not the intent to those who wrote the Fourteenth Amendment to offer protection to “unborn persons,” but rather just to “walking-around persons.” I think he is correct, by the way, but it seems to me it is only his judicial philosophy that keeps him from saying, “The authors of the Fourteenth Amendment may not have been thinking of unborn persons, but it is well more than a century since the Fourteenth Amendment was written, and we now know that the unborn are persons and consequently should be protected under the Fourteenth Amendment.”
So I do see a justification in saying that the case just decided granted what had been the right of a natural person to an “artificial person,” and that the rights of corporations have been expanded in this one area to be the same as the rights of natural persons, but unborn persons do not have any rights at all.
It certainly makes sense to me to distinguish between types of persons and the rights afforded to them under the Constitution. The debate over abortion is in many ways not a debate over whether an unborn human being is a person, but what definition of person applies to an embryo or fetus. Just designating someone (or something) a person doesn’t solve the problem. A dead person is in some very real sense a person, but a dead person does not have the right to vote. Might corporations be give the right to vote? See Analysis: The personhood of corporations.
There’s an interesting piece by Kevin Lee on Mirror of Justice about corporate speech that may fit in with Sam Rocha’s arguments about classical liberalism, individualism, and secularism. If a corporation is a “person,” what type of person is it likely to be? If it has a right to unregulated free political speech, what values is it likely to espouse? Can it possibly be other than a classical liberal? (That last one is my question, not Lee’s.) Here’s an excerpt:
It is “activist” (just like Heller) because it over-rules the clear will of elected governments by applying principles that are more ideological than mechanical. Corporate money already poisons US politics, and now it will only get worse. How can anybody argue that this serves the common good – and remember, Aquinas defined law as an ordinance of reason for the common good.
Corporate money will poison US politics if it is done with harmful intentions but those with good intentions will not poison US politics. Not all corporations are evil. (Besides they provide jobs for people, and I enjoy employment. They also fund the government with tax revenue.)
I agree with the free-speech rationale for this decision. I may work for a corporation but not belong to a union (by choice). Allowing a union, but not my corporate employer, to contribute to politics is a violation of my rights since I trust and agree with my employer but not necessarily a union.
Try calling a company you are a shareholder in. Tell them you are concerned about the success of the company and you want a list of the candidates the company is endorsing and the legislative issues the company has a position on. You will get nowhere.
I think your information is a bit out of date, Kurt:
Source.
David,
The Lyle Denniston article you cite is not serious. Seventeen years olds lack the right to vote. It hardly follows that they lack First Amendment protections.
Also, I don’t agree that corporations espouse classical liberalism. Large business corporations were, in fact, major proponents of much of the interventionist legislation that has been adopted over the past 100 years (up to and including the provision struck down in Citizen’s United).
MM,
I think that the Citizen’s United decision does serve the common good, but of course the justices are supposed to decide cases according to the law, not according to whether, in their view, a particular result would be good for society (I also think that it serves the common good for the Supreme Court to decide cases in this way).
Justice Scalia has said he dislikes terms like “judicial activist” and “judicial restraint” because some people would mistakenly conclude from them that it is activist to strike down laws actually in conflict with the constitution. Perhaps this thread is evidence in his favor on that point.
BA,
I am glad we shareholder activists are making progress.
Cathy,
Unions and corporations operate under the same rules, so there is no situation of one being allowed but not the other.
I’m curious as to the means they disclose. I’ve never received any information from the companies I am a shareholder.
Kurt:
I do realize that corporations and unions are under the same rules. I read your response regarding unions earlier and decided to provide my opinion.
This is besides the point, but it is ironic that the judges who rejected this decision would be the judges most likely to reject overturning Roe vs. Wade.
This is besides the point, but it is ironic that the judges who rejected this decision would be the judges most likely to reject overturning Roe vs. Wade.
In what way is that ironic? John Roberts said that Roe v Wade was “the settled law of the land.” It may be ironic that someone who said that is considered likely to vote to overturn it. But I don’t see any irony in the four justices who did not vote in this current decision to overturn a century of law and precedent being unwilling to overturn roughly 40 years of settled law and precedent.
“I’m still waiting for those who dub themselves “conservative” to rail against this latest judicial over reach by activist judges. But I shall wait in vain. This whole canard is based on the content of “judicial activism”, not the principle.”
MM I am here. Lets talk about it. Judical Activism among conservative cirlces does not mean nothing made by Congress can be overuled
Also as I have stated there has been GREAT GREAT conservative restraint on cases that the Court thinks the Congressional reasoning is BS. YET NO POST ON THAT
The Lyle Denniston article you cite is not serious. Seventeen years olds lack the right to vote. It hardly follows that they lack First Amendment protections.
Blackadder,
I don’t believe the point he was making was that if you can’t vote, you can’t have First Amendment protections! The question raised was — the Supreme Court having conferred new rights on corporations — what other rights will lawyers seek for corporations? As the article notes, the remark about giving corporations the right to vote was tongue in cheek.
After Looking at al these post I get his. I AFRAID OF THIS SPEECH
Can any one answer me this. We as Pro-lifers contribute money to give a common mesage.
Why do we have the right to do that and people that want to lets say drill off shore in California do not have the same right?
For some reason I have never been afraid of Opinions. WHy is every one so scared?
MM,
You state that the ruling is activist because “it over-rules the clear will of elected governments by applying principles that are more ideological than mechanical.”
Thank you for answering my question…but it’s taking great effort for me to deduce what your sentence means.
Your use of the phrase “the clear will of elected governments,” suggests that you think the SCOTUS should only overturn unconstitutional legislation when the elected government didn’t strongly want that law passed to begin with. If, when the elected government passed the law, they really really meant it (it was their “clear will”), then no overturning. Is that it?
No, no, that can’t be it. Hmm. I think I’m trying to ascribe argumentative value to what was only a dramatic turn-of-phrase intended to convey agitation.
Okay, I’ll start again. Perhaps what you intended to say is something like, “A ruling is activist if it applies principles that are more ideological than mechanical (and I’m worked up about this).”
That eliminates some confusion. But the statement as a whole remains an enigma because I’m unsure what you mean saying that a ruling “applies principles that are more ideological than mechanical.”
I feel confident that your usage of “ideological” here is intended to have bad overtones, whereas “mechanical” is intended to have good connotations.
Working forward from that, I can guess (somewhat less confidently) that in your view, a jurist is applying principles “mechanically” when he doggedly follows his usual principles of jurisprudence without regard for how the outcome affects anyone in particular (e.g., how it helps his favorite politicians, his pet government policies or programs, homeless waifs, or cute puppies…or conversely, how much it hurts his least-favorite politicians, his least-favorite policies or programs, child molesters, or disease-carrying mosquitoes).
Now in that usage, “mechanical” really just means “impartial.” And “ideological,” given here in contrast to “mechanical,” must therefore mean “partial” (in the judicial sense).
So it seems to me that your original statement…
“…it over-rules the clear will of elected governments by applying principles that are more ideological than mechanical…”
…boils down to:
“I’m calling it activist because I think that the majority were not impartial; I think that they voted in favor of what they thought would help their political friends, instead of applying their usual jurisprudential principles.”
If I have misinterpreted your statement, I’m sorry: You and I may lack a common vocabulary with which to communicate on these subjects, and thus we may require a lot of tedious defining-of-terms.
But if I deciphered it correctly, then:
What jurisprudential principles do Scalia et alia normally follow (or profess to follow) which you think they failed to follow in this case?
I really think you have to give a concrete example or two, here.
For of course if they merely acted like their usual selves, then one can accuse them of liking how the case came out, but not of altering their normal habits to make it come out that way. One would accuse them, not of partiality, but of having a good day at the office.
And even that accusation requires that we first assume that the majority like the outcome. But that is also assuming facts not in evidence.
I’m not sure why they’d give a frog’s fat fanny one way or the other.
I mean, let’s postulate that Proctor & Gamble will now fund campaign ads, against some freshman congressman or other, to pressure said frosh to lessen an OSHA regulation they find onerous.
Plausible scenario. But what makes you think Antonin Scalia cares one way or the other? How does that affect John Roberts’ kids? Do we think it might help Clarence Thomas’s pension plan somehow?
If your argument boils down to: “I think this ruling will help Republicans at the ballot-box” my answer is to say that party and candidate contribution statistics from large firms in the last election make that proposition dubious.
And it’s even more dubious if you think these justices were giving in to partiality to help, not just Republicans, but ideological conservatives, specifically. Maybe that’s why you used the term “ideological” instead of “partial”…but this ruling is even less likely to help conservatives than it is to help the Republican moderates.
Mr. Nickol:
The irony I see is the we tend to polarize people for politcal purposes based on their views. Somehow, the dissenting judges are heroes to some for their views in this case. However, we don’t see them as obstacles in overturning the decision made by Roe vs. Wade.
Just imagine if the Supreme Court had disposed of New York Times v Sullivan by saying that the bill of rights only applies to persons, and the New York Times is a corporation, not a person.