01/23/2006 07:48 pm ET | Updated May 25, 2011

Questions That Alito Should Have to Answer

There are at least three bad doctrines that are so deeply embedded in American law that no one angling for a top court appointment would touch them.

One is that labor is property.

Another is that money is speech.

And the third is that corporations are people, and therefore rightfully can claim constitutional rights.

Since so many cases that come before the Supreme Court have to do with the conflict between the rights of business and the rights of the rest of us (or business v. business), there probably should have been a lot more attention paid to the question of corporate rights during the hearings.

Few doubt that corporations are the most powerful parties to come before the court. But even fewer understand how the courts have helped establish that power to begin with. (For a quick review of some of the history I recommend Ted Nace's superb book, Gangs of America.) As Andrew Hacker put it back in 1964, "the corporation is the culmination of almost two centuries of constitutional history."

It's possible that Alito's views on this question might be just as important as his potential support for the ever-expanding powers of the presidency. But as far as I can tell, the question was never raised.

As one scholar suggested back in 1950, the corporate perspective on jurisprudence has gained so much credence that it's become difficult to imagine any countervailing points of view. "The supercorporations, or whatever other name they may be called, have so warped constitutional theory that the time is long past for scholars to put their minds to the task of producing an adequate and viable statement of their place in the politico-economic system." (See "Private Governments and the Federal Constitution" in Law and Social Action: Selected Essays of Alexander Pekelis)

And yet decades later, when the obvious opportunity comes along to clarify such questions -- not a peep.

Well, one small peep, actually.

The two co-chairs of the Progressive Caucus -- Rep. Lynn Woolsey (D-CA) and Rep. Barbara Lee (D-CA) -- asked their colleagues in the Senate to request that Alito clarify his position on certain related questions, including the doctrine of corporate personhood. The letter is instructive enough that it's worth quoting from at length:

"As you know, corporations are not explicitly mentioned in the Constitution. No laws have ever been passed by Congress granting that corporations should be granted the same rights as living, breathing human beings. The landmark Supreme Court case cited by those who argue that corporations long ago acquired rights-bearing status under the law (the doctrine known as "corporate personhood") is Santa Clara County v. Southern Pacific Railroad 118 U.S. 394 (1886). However, the statement relating to corporate personhood in this case is not found in the decision itself at all, but rather in the headnotes to the decision authored by the court reporter, which should not have been precedent-setting."

"In the headnotes, it is recorded that Chief Justice Waite suggested to the attorneys present in the court that '[t]he 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 of the opinion that it does.'"

"Although the court reporter subsequently noted in the written record of the case that 'the defendant corporations are persons within the intent of the clause in section 1 of the Fourteenth amendment to the Constitution of the United States,' in fact this statement was not a formal ruling of the Court. Nevertheless, its consideration as such has had far-reaching consequences ever since, as corporations have used the case to establish and extend their claims to constitutional rights. (Ironically, of the 307 Fourteenth Amendment cases brought before the Supreme Court in the years between Waite's proclamation and 1910, only 19 dealt with African Americans -- for whom the amendment was passed -- while 288 suits were brought by corporations seeking the rights of natural persons)."

"From time to time, members of the court have recognized the mistaken impression left behind by the Santa Clara case and articulated a need for the court to reexamine the question of the status of corporations under the law. Fifty years after Santa Clara, for example, Justice Hugo Black wrote: 'I do not believe the word "person" in the Fourteenth Amendment includes corporations....Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection.' [Connecticut General Life Insurance Company v. Johnson 303 U.S. 77 (1938)]"

"The Santa Clara case has also been described by Harvard Law Professor Morton Horwitz as one of the most significant acts of judicial activism by the Court in the nineteenth century, with enormous and enduring consequences -- imposing extensive legal limitations on the legislative ability of states to regulate and control the activities of these large entities."

"We are interested in learning your views on this question. The Constitution does not define a corporation as a person, yet since the 1890s the courts have assumed that corporations are legal persons and that the issue is a matter of well-settled law. Yet it's clear that the 14th amendment was not originally intended to provide corporations the same rights as average citizens or ex-slaves. Should the legal fiction known as 'corporate personhood' be upheld or abandoned, especially when it is used to undermine regulation and democratic self-governance? Do you believe that a strict interpretation of the Constitution suggests that corporations should not be treated as persons under the law?"

The progressive caucus co-chairs also asked that Alito be requested to clarify his views on corporate speech rights, especially as it pertains to political speech and media ownership:

"[I]n First National Bank v. Bellotti, 435 U.S. 765 (1978) Justice Powell placed the First Amendment in opposition to the democratic ideals of political equality and the right of states to restrict certain forms of speech. In this case, the state of Massachusetts argued that it wanted to ensure that individual citizens, not corporations, should play the most active role in public discourse and the electoral process. The Court recognized that corporations can exercise unusual powers in political discourse compared to most individuals, but determined that the state should not discriminate against any speaker no matter who that person is (in this case, corporations)."

"As you are not doubt aware, there is considerable evidence that corporate views can dominate political discourse to the point of squeezing out legitimate community and individual voices. But what is your view of the Court's decision in Belotti? Do you see a problem when corporations are treated as equal participants, with every right to use their First Amendment rights to dominate public policy debates such as those that occur in state and local referenda? Do you believe the Court should uphold state and Congressional limits on corporate political expression in order to equalize contributions to public debates?"

"Corporate speech is characterized by two things: it does not derive from a human source of the expression and under principles of corporate law its motivation will inexorably be focused on increasing or maximizing its wealth and that of its shareholders. Given these characteristics of corporate speech, how does it justify First Amendment protection?"

"Another area where the law is evolving is the area of commercial speech. We are interested in learning whether you think commercial speech should enjoy the same kind of protections that political speech should, or whether the courts should provide greater deference to legislative determinations about the public interest in restricting commercial speech expression."

"The implications of corporate speech are an important question for public health (e.g. regulation of tobacco and alcohol advertising, including to children) and privacy (marketing associations invoked their corporate speech rights in defending the Do-Not-Call registry), among other questions."

"At the forefront of current concerns about corporate claims to First Amendment rights is the argument (by the FCC itself and many in the broadcast industry) that the FCC's broadcast ownership Rule and Order of June 2, 2003 was protective of the First Amendment rights of broadcast corporations."

"Can you explain how you would protect the First Amendment rights of the public, the rightful owners of the broadcast airwaves, held in trust by the federal government and leased to the broadcasters for free from being overwhelmed by the voices of these commercial interests? In your view, do federal rules on media ownership designed to ensure diversity violate the First Amendment rights of media and telecommunications corporations. and if so, how?"

"The quality of American freedom of expression in the digital age will very likely be determined by the U.S. Supreme Court's views on these questions. [We are interested in your views, not in knowing the identities of the parties you may have represented or litigated against. We believe these questions can be answered by you without reaching any guarantees of client confidentiality.]"

(end of quotes from the letter)

Of course it's unlikely Alito will even bother scribbling "stare decisis" on a post-it and sending this letter back.