Did Thomas Jefferson Think Corporations Were People?
Washington, D.C. -- The Supreme Court has just finished hearing oral arguments about whether it should overturn 102 years of precedent and rule that corporations have the same right to spend money to influence elections that citizens possess.
The Court stunned most observers back in June, when it asked for reargument in what seemed a small and narrow case: Citizens United v. the Federal Election Commission. At issue was whether the McCain-Feingold legislation, which banned corporate and union electioneering, also precluded a corporation from distributing a movie highly critical of a political candidate (in this case, Hilary Clinton). That's hardly an earth-shattering question, except to those involved.
But in asking for reargument in that case, the Court invited the publisher of the movie to make the case that Congress did not have the authority to limit corporate political expenditure, even though as far back as 1902, and as recently as 2006, the Court had upheld that authority.
Since the conclusion of the oral arguments, media coverage has focused on Chief Justice Roberts, who seems likely to be the swing vote. The four most liberal justices have made it pretty clear that they may not think Congress intended to ban making a movie, but they think corporate political expenditures of other sorts can be limited. However, three of the conservative justices (Scalia, Thomas, and Alito) plus usual swing voter Anthony Kennedy appear ready to open the floodgates to corporate dominance of political discourse.
The appeal being made to Roberts is that in his confirmation hearing he took a strong stand that the Court should not lightly overturn its own precedents. He presented himself as an incrementalist, a justice opposed to big changes in direction. You can argue whether Roberts has actually lived up to his judicial-restraint packaging, but a huge effort is underway to persuade him, in this case, to do so. Thus, in addition to a New York Times editorial urging a narrow ruling, the Times piled on Roberts with an op-ed by Jeffrey Rosen arguing that how Roberts handles this case would determine whether he goes down in history as another Chief Justice Marshall, Roberts's stated role model, or instead as a new Earl Warren, the chief justice whom conservatives demonize for judicial overreach.
It's true that judicial restraint ought to lead Roberts to a narrow ruling in this case rather than overturning a century of precedent. But what's striking is that no one is challenging the three most conservative justices -- yet it's their position on this case that's most contrary to their self-declared judicial philosophies. For Alito, Scalia, and Thomas are "originalists" -- justices who claim that it is not previous Supreme Court precedent that should govern, but instead the intentions and understanding of those who drafted the Constitution (and its amendments).
But the Citizens United case brings into stark focus the great, huge buzzing fly in the ointment of the originalists: They don't believe their own doctrine, not even vaguely. And as far as I can tell, this is almost universally true of those who wear the originalist banner.
Here's the problem: If you want to throw out what the originalists call "judge-made law" (interpretations of the Constitution that its drafters did not intend), then you don't get to throw out just Roe v. Wade on abortion, Baker vs. Carr on apportioning state legislatures, and Miranda on defendant's rights. You cannot board originalism like a trolley, ride it through the cases you don't like, and then get off back in 1953, when Earl Warren joins the Court, or even back in 1935, when the Court begins taking a more expansive view of Congressional authority to regulate interstate commerce.
No, if you want to argue originalism, you must also throw out all the judge-made law of the last half of the 19th century, too. And it is the cases of that era --cases that established that corporations have rights like individuals -- that Alito, Scalia, and Thomas are relying on to make their case for throwing out Congressional regulation of corporate political spending.
The key decision came in 1886, in Santa Clara County vs. Southern Pacific Railway. At the start of the case, the Chief Justice announced that the Court would not even hear arguments about whether the 14th amendment, guaranteed equal rights to all citizens, included corporations -- the Court simply declared that it did. In doing to, it ignored the well-established legal doctrine that once a state gave a corporation a privilege it constituted a contract that must be honored but also that the specific privileges granted came with its charter and did not extend beyond it.
Now this was judge-made law with a vengeance. It utterly upset the small-holder character of the original Constitution, with its deeply ingrained mistrust of corporations and other large economic institutions. But even after these cases, the Courts continued to rule that Congress and the states had the right to regulate some corporate political spending. (Indeed, in a 1978 case that restricted the right to limit corporate spending on ballot measures, Chief Justice Rehnquist dissented specifically because he did not feel that corporations were persons for purposes of political speech.)
Now what faces the Court in Citizens United v. the FEC is an effort to complete the judge-made revolution that begin in Santa Clara. Corporations would be granted not only the special privileges of their status (immortality, limited liability, protection from most criminal sanctions) but also the full range of political privileges of American citizens.
And Alito, Scalia, and Thomas don't acknowledge this enormous incompatibility with their purported judicial doctrine, and few in the media have challenged them on it. (Briefs have been filed with the Supreme Court raising this issue -- but they get barely any public notice.)
In the oral arguments, newly arrived Justice Sotomayor raised openly from the bench, for the first time in decades, the question of whether the original corporate personhood cases like Santa Clara were rightly decided. If the Court overreaches in this case, it may find that it has done the thing that Bob Dole used to say was always the worst error you could make in politics -- to kick a sleeping dog. Americans have, by and large, forgotten or never heard of the Santa Clara decision. Do Roberts, Alito, Thomas and Scalia really want to remind them?
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Just to correct the record... Thomas and Scalia are not Originalists. They are Textualists.
Originalists look at the intention of the drafters. Both correctly believe that's impossible as no two humans ever have the same intention.
Textualists look at the words in the document and figure out what that word, punctuation, grammar, etc.. meant at the time it was written.
See DC v Heller, they dont care what the drafters thought. They ONLY care what the definitions of the words in the document mean.
Can't Congress enact a law that states that only if you can vote can you give money to politicians, with a limit of $2500? I would prefer even less money be able to be given, but I think that is the figure now. I think it should also state that only if you have the potential to vote, and you can breathe the air, can you be considered a person. This would include children but not the unborn, and certainly not corporations. Perhaps this is wacky, but it makes sense to me.
Corporate America already has more power and influence through lobbyists. Plus..., as individuals, their employees can give to parties to influence legislation.
But this would make the situation far worse then it is now.
There would be no doubt who really controls this country
of the corp., by the corp. for the corp.
Monsanto could conceivably fund 100% of a candidate's bid, effectively purchasing that candidates votes, and favorable legislation.
Worst case scenario means a state's citizens will no longer have representation in government, only corporations will.
Carl, if you notice, this issue isn't getting 'any play' here at Huff Po.
Nobody will even here about it until Brian Williams says', 'And in a stunning reversal at the SCOTUS, the justices have unleashed the political beast of corporate monies and their right to protect their profits against the interest of the common man, in effect, turning this country into what the founders sought to do away with, the power and influence of the Corporation', and in our next story, ToFu, is it for me, is it for you, ToFu.
'hear about'
If the law here again sides with naked exercise of power over citizen rights, we can mark that day as the end of our experiment in democracy.
As you do, I have hope that Roberts will remember his humanity in time. Hope is not power nor certainty. It is life.
No chance, Roberts gave that up years ago......
Where there is yet life, there is yet hope.
This is the most politicised and right-wing SCOTUS in history. I suspect they have asked for reargument now in order to ensure they can decide the case as they want to (a 5-4 decision giving corporations absolute right to corrupt politics with massive money) before Obama has a chance to appoint a liberal and tilt the court some way back toward rational jurisprudence.
Given that view, I fully expect the corporations to win and after that, farewell USA. Elections will be won by whoever the corporations decide and you now live in a Bill Gibson novel.
lessee... if "corporations" are "people", then we have:
A government of the corporations, by the corporations and for the corporations.
Yeah, that pretty well sums it up.
I do not care which party you owe your allegiance. The fact remains if corps are allowed unlimited spending we have all lost.
I had hoped things would go the other way and candidates could only accept money from people in their district.
Dems and Repubs may have to come together and kick out the old guard and keep replacing them until term limits are voted in.
2 terms are good enough for the President and they are good enough for representatives and senators.
Yes, the ideologies of dems and repubs are very far apart. But in my own personal group of friends from the most liberal to the most conservative no one is happy about corps basically our representatives.
They will no longer be "Our" representatives, they will be wholly owned subsidiaries of the corporation that bought their election....
We will have no representation, only tax burden.
The Revolution was based on replacing absolutist, monarchy rule with a representative government of, for, by the people. So all that the Framers had to go on was trying to outline how the Federal government would interact with its representative members, the states (Articles of Confederation). That made the central government weak and they had to tweak their ideas resulting in the Constitution.
Hamilton fought against adding a Bill of Rights (Federalist 84) as he was afraid outlining certain rights would take away other non-enumerated rights. But Madison won out and so we have a Constitution which strengthened the central government - take that Originalists, the first power grab by "DC" - and provisions protecting the individual.
Seeing as how they ultimately were fighting great power controlled by few, with little or no oversight, I'd say they'd be against considering a corporate entity an individual. Especially as the incorporated, multi-national didn't exactly exist in its present state in their day.
If corporations gain the right to [participate in US elections, then anyone, anywhere can incorporate and use this new right - Osama bin Laden, the Chinese communist government, the KGB (or whatever they're calling themselves now), Hugo Chavez or Fidel Castro, the Iranian Revolutionary Guard, ad infinitum. Do Americans want to see all these and thousands more running attack ads and financing candidates in the next US election? How about Moammar Khadafy? Or Peru's Shining Path, Columbia's FARC, or the Taliban's take on US drug laws?
Because if this case wins, that's what you'll get.
I think you have put your finger on the winning argument, Simon. All you have to do is make it cogently enough, and it will win.
I believe in their corporatist capitalistic eyes, money is money, no matter where it came from...
THAT sentiment has trumped For the People, By the People and From the People.....
And in the 18th Century, there no hardly any rules for general charters of corporations. Each charter had to be approved individually through the colonial (later state) legislatures.
I cannot imagine ANY of the Founders considering these corporate and financial entities as legal "persons" with individual human rights. I am not even aware of Hamilton proposing any such thing, and of all the Founders he was most sympathetic to the system that would come to be called "capitalism" in later decades.
Jefferson had a very low regard for it, and though wage workers and factory employees were treated little better than slaves--and he would have known all about that. He meant that it was a system similar to slavery in the literal sense, of the type he had seen every day of his life.
Of all the Founders, I would imagine that Jefferson was the least sympathetic to big banks, corporations, and also to factories and big cities in general. This was the dawn of industrialization, and there wasn't even a word for "capitalism" in Jefferson's time, but the evidence is overwhelming that he disliked it intensely, and even considered himself on the Left. Neither James Madison nor Benjamin Franklin were sympathetic to teh type of industrial and finance capitalism that they had seen in Britain.
If any of the Founders liked capitalism, it was Alexander Hamilton and some of the Federalists, although not even John Adams was all that crazy about it in the end, nor were his descendants.
Anyone who thinks the Founders were all capitalists in the modern sense has never read anything they really said, and some of them like Jefferson and Madison were definitely anti-capitalist.
I'll buy 'anti-industrialist', but not anti-capitalist. In Jefferson's day, plantations were the commonest form of capitalism.
Not capitalism, but trade and mercantilism....
There was no money markets, no stocks to trade etc.
It was selling your products, goods and services for ready money. The abstract Capitalism is a much later invention.
T. Jefferson advocated for a strong agrarian society. Even coming from the plantation South, how could he have predicted the rise of the multi-national and future industrialization on the scale it took once Eli Whitney's assembly line idea was put into place by Ford?
this is a highly politicized supreme court, and one tenet of the republican religion is a pathological hatred of all things hillary. it will be a 5-4 decision in favor of the republicans. however, if hillary had made this movie about mcconnell instead of the other way around, the outcome would be a 4-5 decision, still against hillary.
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