Tuesday, March 27, 2012

"How to Think About Corporate Personhood" Parts I and II

A bit of formerly esoteric law/history thrust into the limelight by the Citizens United decision and bound to become more important going forward.
Rutgers History Prof. James Livingstone writing for the History News Network:

How to Think About Corporate Personhood Pt. 1
In Zuccotti Park on October 5, 2011, I saw a young woman holding a scrawled cardboard sign that read: “I’ll believe corporations are persons when Texas executes one.”

It made me literally laugh out loud, so I took a picture of it. Six weeks later, November 17, on the night of the second big Occupy march to and from Foley Square, you could see those words everywhere you looked, now neatly stenciled and mass produced, a sign of the times.

Meanwhile, in my big survey class at Rutgers, “Development of the U.S. to 1865,” I was lecturing about the making of the U.S. Constitution, and more particularly the anguished mind of the founder, James Madison, who kept asking how to reconcile—or rather, how to codify the tension between—the rights of persons and the rights of property because he knew that republics, both ancient and modern, inevitably became oligarchies when they chose to sacrifice the rights of persons to the rights of property. I was quoting from a letter Madison wrote to Thomas Jefferson in October of 1788 when one of my students raised his hand and asked, “But weren’t you saying last time that the law makes corporations persons, what’s the deal there?”
Soon after my old friend Mike Fennell, a contractor in Charlotte, North Carolina, told me that one of his employees was so worried about what he’d heard on the radio—the Supreme Court says corporations are persons whose campaign money is a kind of speech to be protected by the First Amendment!—that he had to write his congressman.

We’re all worried about it. Herewith, then, a short course—some CliffsNotes—on how to think about corporate personhood. Full disclosure before the fact: you’re not going to like what I’m about to tell you because I’ll be suggesting that “original intent” is a useful device in adjudicating the divergent claims of all parties.

Citizens United v. Federal Election Commission 558 U.S. 1 (2010) is not a repudiation of stare decisis. In fact, it’s a very conservative argument that overturns Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990), and a part of its more recent progeny, McConnell v. Federal Election Commission 540 U.S. 93 (2003), by demonstrating that Austin was a “significant departure from ancient First Amendment principles” and claiming that the Bipartisan Campaign Reform Act of 2002, Section 441 b, which bans “electioneering communication” by corporations, is at least inconsistent with the First Amendment as long as the identity of the speaker cannot determine whether speech must be protected. It relies on and restores what the majority understands to be the balance of precedent, particularly but not only First National Bank of Boston v. Bellotti 435 U.S. 765 (1978) [see CU, 26-31, esp. the long line of precedent cited at 26-27]. There’s not much that is new here, in other words, except a disturbing clarification of what corporate personhood implies....MUCH MORE
How to Think About Corporate Personhood Pt. II
Last time out I ended on a skeptical note—I had begun to doubt my own deployment of James Madison’s formative distinction between the rights of persons and the rights of property. I concluded that the Santa Clara decision of 1886 conflated these “two cardinal objects of Government,” as Madison called them, and thus had adjourned the debate he had designed to trouble congressional decision-making—the debate he thought would prolong the process of majority formation and prevent the propertied oligarchies that had destroyed the ancient republics by ignoring the rights of persons. After Santa Clara, I suggested, the rights of persons and the rights of property couldn’t be distinguished because the Supreme Court had designated corporations persons whose property was protected by the substantive due process of the 14th Amendment. 

And yet, and yet. The notion—the very idea—of a person was enlarged and enriched in the age of the giant corporations, the twentieth century, and this is not mere coincidence: the contemplation of corporate or collective identities, whether as business firms or trade unions, enabled the concept of a “social self,” an artificial yet real and durable personality constructed through association with others. The pragmatists and feminists of the early twentieth century led the way. They kept claiming that individuality was an achievement, not a given—it was more cumulative effect than prior cause of particular situations and actions....MUCH MORE