The future hinges on the balance

>> Friday, September 11, 2009

. . .once we say [State and Federal legislatures can't balance electoral process needs and First Amendment rights], except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process? Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.
Associate Justice Sonia Sotomayor during Citizens United v. Federal Election Commission hearing on Sept 9, 2009

I'm amazed I came across that quote when I was reading about this case last night. Many people, particularly progressives, have long lamented that corporations are given the rights individuals receive. The status corporations received was determined by a headnote attached to Santa Clara County v. Southern Pacific Railroad Company (1886) by a clerk who was a former president of a railroad. The opinion of the justices in the case never stated that corporations were to be given rights under the 14th amendment, establishing corporate personhood, as many people assume.
I once read a law review from the 1930’s or 1940’s which plausibly argued the “conspiracy theory of the 14th amendment” namely that the drafters of the amendment had deliberately chosen the term “person” in the due process clause, as opposed with “citizen” in the Privileges and Immunities Clause because they wanted to extend the due process and equal protection clauses to corporations in the new Union after the Civil War. I don’t buy this because I have read other sources who said a number of drafters were surprised when their use of the term “person” was twisted to mean something other than a human being.

The Supreme Court has never seriously confronted overruling the case of
Santa Clara Co. v. South. Pacific R. Co., 118 U.S. 394, 396 (1886) but several justices have forcefully advocated doing so, like Black and Douglas in their dissent in Wheeling Steel Co. v. Glander, 337 U.S. 562 (1949). It’s probably dreaming to think that could happen but overruling the doctrine that “corporations” are “persons” under the US Constitution would open a new era of justice.
The fact that Sotomayor even questioned that "the Court imbued a creature of State law with human characteristics" is significant. I recall hearing within the past decade that there was a case whereupon amicus briefs were filed requesting the Supreme Court to revisit the issue of corporate personhood. The Court chose not to. So the fact that one of the current justices even posed this question is significant.

I would love this case to knock down corporate personhood, but I know it's just not going to happen. The odds are slim. If they were, we'd be talking a 5-4 decision where Justice Kennedy would magically rule with Breyer, Stevens, Ginsburg and, in all likelihood, Sotomayor. Although some noted that Sotomayor's methodical approach was similar to Kennedy's, perhaps this would endear Kennedy to the "mistake" Sotomayor noted in her question?

Nah, I should really stop getting my hopes up. All the magic spells and voodoo dolls couldn't make this court apply reality to their majority ruling and strike down corporate personhood. This is the same court where Scalia talked about corporations in terms of hairdressers and new auto dealerships. You can't get more disconnected from reality than that.

It won't bother Scalia, Thomas, Alito or Roberts to allow corporations to own the government more than they already do. Particularly Roberts, who as Jeffrey Toobin noted, is the Court's biggest corporatist.
After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
So get ready for American-style Fascism people! Glenn Beck doesn't really know what fascism is when he's ranting about Van Jones or his next bogeyman on tv. This is fascism: "A system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism."

Corporations will soon own the government outright because while individuals may have campaign limits, corporations will not after this ruling comes out. They'll be able to use the funds from their general treasury and have no limits.

In Corporations v. People, the right-wing of the court will have no problem ruling in favor of Corporations. They do it all the time.


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