Fair. Balanced. American.

Friday, January 22, 2010

By, for and of corporations

The Republican Supreme Court. Dahlia Lithwick:
While Stevens is reading the portion of his concurrence about the "cautious view of corporate power" held by the framers, I see Justice Thomas chuckle softly. (Scalia takes on this argument in his concurrence.) Stevens hammers, more than once this morning from the bench on the principle that corporations "are not human beings" and "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires." He insists that "they are not themselves members of 'We the People' by whom and for whom our Constitution was established."

But you can plainly see the weariness in Stevens eyes and hear it in his voice today as he is forced to contend with a legal fiction that has come to life today, a sort of constitutional Frankenstein moment when corporate speech becomes even more compelling than the "voices of the real people" who will be drowned out. Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is "to confuse metaphor with reality." Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.
Lyle Deniston of SCOTUSblog:
Suppose that General Motors Corp., troubled that a candidate for Congress from Michigan was too favorable to the United Auto Workers, decided to do everything in its corporate power to defeat that candidate. So, aside from spending huge sums of its own money (none of it federal bailout money) to influence the outcome, it went to the office of the voting registrar in downtown Detroit. It sought to sign up, affirming that it was a citizen and resident of Michigan. Denied registration, it sued, claiming that, under the Fourteenth Amendment of the U.S. Constitution, it was a “person,” and, as a “citizen,” it was entitled to equal protection under the election laws. Would the Supreme Court buy that?

General Motors might already be halfway to winning its lawsuit. It has been understood, for decades, that corporations are “persons” under the Constitution. And nothing the Supreme Court said Thursday undermined that notion. If anything, the decision in Citizens United v. Federal Election Commission conferred new dignity on corporate “persons,” treating them — under the First Amendment free-speech clause — as the equal of human beings. [...]

The rehabilitation of the corporate “person” almost certainly was a project that five of the Justices were prepared to embrace. It could be argued, indeed, that the Court put the case over to the current Term for a second argument, focused on corporation’s rights under the Constitution, as part of that project. There was not a hint that those five, in the end, were in any way moved by the suggestion at that second argument by Justice Sonia Sotomayor that the Court may have been wrong for a century about awarding “personhood” to corporations.

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