Scalia Kills Corporate Personhood
Eli alluded to this in his post on Antonin Scalia’s claim that women and gays are not included under the 14th Amendment, but I wanted to expand on it.
Scalia, one of corporate America’s biggest friends on SCOTUS, just killed corporate personhood.
What other conclusion can you draw after reading Scalia’s assertion that the 14th Amendment only applies to slaves and not women or gays or–he doesn’t say it but it would follow logically–corporations?
In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.
It was the Fourteenth Amendment, after all, that was used to grant railroad corporations the same rights as you and me. Here’s how Thom Hartmann describes it.
But in any case, before the Supreme Court the Southern Pacific Railroad argued in this case that the 14th amendment which says ‘no person shall be denied equal protection under the law’ should apply to them as a corporation. In other words, that as a corporation they should have rights under the constitution because the 14th amendment, when it was written to free the slaves in the 1870’s, the 14th amendment didn’t say ‘no natural person shall be denied equal protection under the law.’ Instead it says ‘no person.’ And for hundreds of years of common law we had this distinction between natural persons, you and me, and artificial persons: churches, governments, corporations.
If the Fourteenth Amendment shouldn’t be applied to women and gays, then it sure as hell shouldn’t be applied to railroads, right?
Is there something more going on (and I’m sure there are a lot of you out there that will explain this to me)? I’m wondering whether, in anticipation of severely reversing the application of the Fourteenth Amendment (perhaps in anticipation of a gay rights case, perhaps to support conservative efforts to overturn birthright citizenship), Scalia is laying the basis for corporate protections elsewhere?
After all, in Citizens United, Scalia very carefully rooted his concurrence in the First Amendment alone, not the Fourteenth. But note how he very carefully takes the opposite approach to the First Amendment that he does with the Fourteenth Amendment: that in spite of the dissent’s extensive description of the founding fathers’ caution about corporations, so long as they didn’t explicitly exclude any speakers, they must be assumed to have included corporations–incorporated associations–in their intent.
The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment . It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form.
[snip]
There were also small unincorporated business associations, which some have argued were the “ ‘true progenitors’ ” of today’s business corporations. Friedman 200 (quoting S. Livermore, Early American Land Companies: Their Influence on Corporate Development 216 (1939)); see also Davis 33. Were all of these silently excluded from the protections of the First Amendment ?
The lack of a textual exception for speech by corporations cannot be explained on the ground that such organizations did not exist or did not speak.
[snip]
The dissent says that when the Framers “constitutionalized the right to free speech in the First Amendment , it was the free speech of individual Americans that they had in mind.” Post, at 37. That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women—not, for example, of trees or polar bears. But the individual person’s right to speak includes the right to speak in association with other individual persons.
[snip]
But to return to, and summarize, my principal point, which is the conformity of today’s opinion with the original meaning of the First Amendment . The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion.
Maybe the answer is just that Scalia’s a raging hypocrite and we shouldn’t take his inconsistencies very seriously because he’s always inconsistent. But I do wonder whether there’s something more going on, and would love to know what you all think?
Prof. Balkin published an article eleven months ago entitled the reconstruction power discussing amendments 13, 14, + 15. Balkin also wrote recently about the Scalia comments about the extent to which the federal constitution may address gender bias; Balkin describes several 14A topics Scalia*s invective failed to address. KagroX also had some interesting views regarding the opinion in Plessy v Ferguson, somewhere on that site. My impression of Scalia*s tack is at least twofold; foremost is the pater familias garrulousness of the rhetoric, same old same old for Scalia; also, I note the issues of ethnic biases and the ongoing Republican fringe attempts to vitiate both the civil rights act and the voting rights act, sometimes subtly, sometimes frontally, but always in prosecution of initiatives to counter what used to be called the generation gap. I am sure Scalia would find no constitutional prohibition against generation gap politics, which often is the subtext in Scalia*s lexis. For me, it*s literalness at an inopportune moment, a time when more facial efforts are underway to block modernization, particularly with respect to social fabric matters.
Thanks for the links.
Scalia now:
“Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
Supreme Court Justice Morrison Remick Waite, 1886:
“The 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 all of opinion that it does.” (Santa Clara County v. Southern Pacific Railroad Company)
The way I heard it, it wasn’t Supreme Court Justice Morrison Remick Waite who wrote that, it was the court reporter, and former Railroad President, Bancroft Davis who inserted those words in his headnotes for the decision.
The headnotes being by definition, not a work of the court, are not part of the decision.
Santa Clara County v. Southern Pacific Railroad Company 1886, does not grant or confirm the corporations personhood, no matter how many times those words are misattributed, or misrepresented.
It’s only in the headnote of a railroad case, written by the court reporter, a former railroad president, and the court itself did not consider the issue of corporate personhood as part of their decision. Per Wikipedia:
Plus, me, speaking as a nonlawyer, nonjudge, it just makes me gape at these superior, supreme courts that since that decision was published apparently never read past the headnote (and apparently that court never even read the published headnote to object), never used their own brains, and could not on their own tell a person apart from a judicially created thing that never before had been considered a person. God love ’em, they’re fucking idiots. And now because the thing they have to protect more than anything is their own infallible butts, they’re going to be the LAST ones to see it.
What makes you think the subsequent iterations of the Supreme Court, or even that one at the time, did not see or understand? I think the far more accurate takeaway is that they have not particularly objected to that treatment of corporate entities. I take strong issue with that conclusion as to corporate existence, but many cases have reached the issue over the years, most notably Riggs, and the court maintained the assignment of personhood to corporations. It is, as deleterious a thing as it is, not quite the complete fluke it is made out to be, at least not at this point. There was a pretty clear trend that the court was headed there one way or another; and so it has.
You must be a lawyer.
Yes, but I fail to see what difference that makes; what i said was accurate.
Everything I said was accurate too. My point is made.
P.S. Happy New Year :-)
Heh, and to you too! You know, I have real issues with corporate personhood, we have been tilting at that issue off and on since before we even came to FDL. I think corporate personhood, at least as it is applied today, has created so many bad effects it is appalling. I would kill to back it up substantially. I don’t think, because of how intertwined it is to so many different things in the law and society that it is capable of just being “reversed”; but it sure could be dialed back and restructured. My point earlier was, however, simply that it is not quite the total fluke happening some folks make it out to be. There was a history before and after Santa Clara that has brought us to where we are; it was not all the intrepid Mr. Davis.
You know my really very small brain? (Sigh?) That article I linked to in @46 had a lot of really good information about Davis and Waite and that decision, all of which I can’t remember now. I know it’s not so simple. I know there were currents. Just the fact that corporations used the 14th Amendment freeing slaves to get the legal opportunity to gain personhood and own others of their kind, and that goes unremarked on by the highest judges in this land for the longest time… !!!! still waiting….
In the movie The Corporation I remember seeing a discussion of how the 14th Amendment got used — and BY FAR the biggest users/benefittors (sp?) of it in court cases thereafter were not slaves or people of color, or people at all, it was corporations, case after case after case after… The gates opened and they were off and running. If judicial thought was going that way anyway without the ex-RR president/court reporter’s interference, WTF? Plus, me: WHY? What was wrong with being a legal entity like a church or a ship? They had standing in court already. This is all about corruption and nothing about justice except in how gobsmackingly easily money and power can disable justice for all, for all foreseeable time.
Plus, remember our conversation about juries earlier? It all happened about the same time, 1886 Supreme Court reporter slips in that headnote and suddenly corporations are persons–superpersons!, and 1895 Sparf, Supreme Court says, never mind, don’t let jurors know that they have the power and duty to judge the law, not just the accused, to find justice. So corporations buy the government, write the laws, sneak themselves into court as injured people to use the power of the courts to get their way, and real people, We The People people, effectively lose the Constitutional power to judge the law, use their consciences, participate, check and balance, reality test. We became a government of psychopaths and passengers, and that’s how. And the thing that gets me is how the people who are supposed to know the most about civics and justice and the mechanics of how Constitutional democracy works, who are entrusted with its caretaking, are exactly the people who failed.
Due process my butt. I’d say rest in peace, but it’ll never rest in peace.
bmaz, what I said @42:
part of that is answered in the Thom Hartmann link in the diary:
The Chief Justice couldn’t object to or clarify the meaning of the headnote, because by the time it was published he was dead. And Hartmann makes the point that it’s only between the Chief Justice Waite and Davis that he even made that statement at all. And the other justices never speak for themselves on that issue. It’s taken for granted that when Waite said “we are all of the opinion” that they were in fact all of the opinion. (Really?)
But I’m still wondering — to continue my question, how do you research subsequent, immediate uses of the 14th amendment = corporate personhood? Did that Supreme Court, with the remaining members of the Santa Clara deciders, ever see it come before them again? Maybe they all assumed that it was the opinion that counted and never bothered looking at the headnote, while in fact history played out exactly the opposite — ? Thanks
I hope you don’t mind my butting in with my cents.
I think the answer is partially exposed in Chief Justice Waite’s reply to to Davis’ inquiry;
The court was/is in the habit of dancing around issues it does not wish to face head on.
Corporations became persons in spite of the Constitution, because judges are only men after all, except Roberts who appears to be an invertibrate of some sort.
Hi w4b, I don’t mind at all. It’s a big thing, blind man and the elephant in the room, the more hands on it the better.
Like, my epiphany seed was back when I got tossed out of court during jury questioning when I said I would vote my conscience and the judge shamed me. I’m like, isn’t that what juries are for? I’m old enough that I remember Zenger being taught in civics. I don’t even think they teach it in law school even more, but once they put it on a postage stamp, freedom of the press. Brought to America by jury nullification. THEN (high school) I was like — but the jury just overruled the law, how’s that supposed to work? Well, I learned that was exactly how it was supposed to work. A jury is SUPPOSED to be the conscience of the community, not helpless authorizers of injustice, not serfs under a king, and making jurors the ultimate authority in a case is a beautiful thing for a couple of things off the top of my head here: 1) It enshrines doubt of institutional authority — what Madison/Jefferson said, there are no angels in government. Hence checks and balances. 2) It keeps balance by increments, lots of increments, over time. Use it or lose it, it keeps the people exercised in civics, civility, and keeps the law constantly subject to reason and conscience and reality testing. It keeps the ball rolling.
Like, I’m a picture person? I see checks and balances as a cycle. And cycles like bicycles keep balance by moving. Whee, it’s good. But without juries checking and balancing, the picture changes to maybe an authority flow chart pyramid. Decision goes to the top and stops. We had that with a king, we rebelled against it, why would we ever repeat that? Well we wouldn’t, we didn’t. “WE THE PEOPLE” big big letters, “jury” “jury” “jury”.
The trouble with stopping the cycle is once you crash you stay crashed. The problem with stopping the flow is that the part of the body where blood doesn’t circulate dies. Scalia, Roberts, any of them, for all their determination to make things “right” their way, for all time, can’t. They think they can keep the American brain alive by being THE mighty brain cell, that’s their job. But without real juries American government is brain dead, conscience dead. These justices — hell, we call them supreme, every utterance is the thumb on the scale, the push on the fulcrum. It’s not a conversation, it’s not a reasoning back and forth, it’s not a lub dub, it’s a dead IT. When they fail, which they did in 1886 and 1895 for sure, and every crappy insanity that grew out of that, they can’t correct. They WON”T correct, because that would admit they failed and they see themselves as the only brain cell. I saw this on Star Trek, Norman the logical robot blows his mind.
Blah! Too many big thoughts for me, too many blithering words. I hope I said something I meant to say. You keep secrets from the people, you keep power from the people, you crash America. American government is crashed. They call that mess in Washington America, but it’s not, not anymore. I swear, sometimes I think Khalid Sheikh Mohammed might be a better American than anyone in Washington. At his combatant status hearing in Guantanamo, from what wasn’t redacted, he was the only one there talking about the Constitution and the British and George Washington. Like he got it, and we didn’t. He took responsibility for shopping lists of impossible stuff, like if there was a buck it was going to stop at his desk. Dream, Cheney. He asked for mercy and fair treatment not for himself but for people at Guantanamo he knew were there wrongly. Dude. The whole point of “authority” in Washington now is plausible deniability. No one is responsible, no one is accountable, it’s all fine print, and you didn’t see it, can’t see it anyway, it’s not your place. Get it? America, it’s not your place. And there is no justice or mercy or wisdom. Washington can’t imagine what they send round coming back round, or maybe they can because they call it terrorism and freak out. But I’m still America and if you still are, and if even Khalid Sheikh Mohammed is too, maybe America’s still out there. To me that’s like saying maybe gravity’s still out there. I know it is.
Too late to edit:
I know it is… as long as there are people.
I don’t think that Santa Clara was a fluke, and I certainly don’t believe it was anything like a complete fluke.
What I take away, is clear evidence of the inexorable, and corrosive encroachment of corporate power on the rights and protections granted “We the People” by the Constitution.
In the same way that right-wing Christians can’t seem to come to grips with the Sermon on the Mount, the Conservative Identity movement cannot face the clear intent, and meaning of the preamble to the constitution.
We the people, means we the people, and the rest is as they say, “… just details.”
What the conservative identity movement has succeeded at accomplishing over the last fifty years or so, is the simultaneous demonization, in some cases, criminalization of collective political action on the part of “We the People” and the edification/consecration of the corporate will to power.
If the founding fathers knew anything, it was that corporate power was dangerous to liberty, and had to be closely watched and strictly regulated.
The fact that we’ve lost that understanding is tragic, but it’s not the result of some fluke of history, it’s the result of the intentional, and coordinated actions of a relatively small group of powerful men acting in concert.
The rich and powerful have succeeded in convincing us to turn our backs on our constitution’s promise of the right to pursue justice, and our collective well being in favor of the empty promises of rugged individualism.
We’re now living the end game of the conservative identity movement, wherein the Tea Party conservatives finally discover the inevitable cost of believing one’s own hype.
We’re about to relearn what we’ve actually known full well for thousands of years;
The world is a cold and lonely place when you’re on your own.
Good grief! Corporations are allowed to be persons, but women and gay people are not? Bizarro-World!
In a-c, no legal framework hides members of the described association from identification. Nor, does legal protections exist to indemnify and/or hide their personal identity, responsability in corporate matters.
Category d) does that, largely allowing this “category of speaker” broad exemptions not permitted the others, not least of which is, essentially, legally protected anonymity.
Almost glaringly offensive (at least to me) is his “category of speaker” concoction (is that unique to Scalia?). I mean, really, you have people.
They speak.
That’s the category… people.
Scalia’s “category” is a reclassification of corporations which cannot be traced backwards to “people”.
marcy, there is one fatal flaw with this analogy and argument;
that flaw is the fact that we are talking about scalia, and everyone knows, especially yourself, scalia, roberts, alito, thomas all decide cases as it concerns the elite, that’s the logic, there is no other logic we need concern ourselves
sorry
too true – it’s in the federalist society rulz, the elite always win. quack quack
Yes, but a bunch of us would have to give up personhood in order to bring down the corporations…
And we could undo Bush v Gore, and go back thru the wormhole to the nice parallel universe.
Bush v. Gore: maybe that’s the solution to this riddle. There they wrote
SCOTUS has become the Humpty Dumpty of courts: a decision sets a precedent only if it says it does.
And Scalia has become the King of the Kangaroos.
I think this will be a key component in the argument or legal challenge of Citizens United.
Corporations shield the individuals from personal liability. If they have no personal liability when it comes to matters of business, they should be afforded no personal protections as corporations. The law clearly does not refer to Corporations but associations. Huge difference.
Good comment, thank you.
On edit, that was supposed to be a reply to jdmckay0 @5
I wouldn’t look for scrupulous argument from Scalia, particularly when it concerns the 14th amendment, if you know what I mean.
I see everyone trying to debate or refute the reasoning of scalia
the point is mute, scalia can find a reason to make any decision he wants to make, and then he adds a snide comment to make everyone think his “logic” is the only correct line of thought
my comment above was in fun but never the less it’s true, trying to find a flaw in scalia’s statements is a mute point, he will never grant that flaw he, he is right and everyone else wrong
Perris I love everything about your posts in this comment section…except for one teeny little piece of grammar nazi-ism which I feel compelled to share; it’s a “moot point”, not a “mute point”. That mistake is so common I wonder if I’m witnessing english changing right before my eyes, but as far as I know it’s still “moot”, a word which is synonymous with “irrelevant”.
The irony of a grammar nazi post about a word which means “irrelevant” is not lost on me.
Yes, you are witnessing English changing right before your eyes. There has also been an incremental change in the meaning of words. Reference any pre-1900 dictionary as proof. And, the vocabulary of the average American is diminishing every year.
It reminds me of the movie, Idiocracy.
The evolution of English into Newspeak. Scalia is a doubleplusgood rightthinker!
will try to remember the correct spelling next time I use the word moot, I keep forgetting there are two words and I am using the wrong one
moot
That’s the definition of a despot. And it applies.
We’re expecting logic, consistency, and fealty to the Constitution from Scalia? Really?
Nice catch, anyway, EW.
He should be impeached, because he is clearly incompetent to hold such an office.
Nice dream; I agree; will never happen. The PTB love ’em some Scalia big-time.
There must be a skeleton in its closet somewhere….
More likely a little boy — with his pants down.
Padilla,
Hamdi,
Al Awlaki,
…
Of course it really could be just he being him …
AND THE KILLIN’ GOEZ ON AND ON AND…
Citizen emptywheel:
Scalia is a sophist and a charletan and is the posterchild for intellectual sociopathology. The intellectual dishonesty of most federal judges and certainly at least five of the current SCOTUS (I think Kagan may be included) leads me to believe that we are at the endgame of the war on democracy and justice under law. I admit that I am gettin’ old and tired and God forgive me but I’m lookin’ forward to the next 2 years of this SCOTUS because I think they’re about to do away with any pretense of constitutional governance. When that happens we will all know what we are fighting, that is we will know who and what we are fighting against.
KEEP THE FAITH AND PASS THE AMMUNTION, THERE IS NO PLACE TO HIDE ANYMORE!!
The only thing consistent about Scalia’s jurisprudence is that his decisions are usually post hoc rationalizations after he’s decided how to rule.
Your description is, etymologically, the definition of prejudice. EG. pre judge… or, judge before the fact.
The term passes for less severe reality disconnects in our usage then the meaning of the word explicitly defines. And, in fact (literally) it describes a process whereby (in this case) judgment (they do call them judges) is executed without an integrity based relationship with one’s own experience of reality.
In my understanding, this is self-deception. It also is very close to being definition of a lie.
I understand what the phrase post hoc means.
See, Bush v. Gore; see also, Holloway v. United States, etc.
Only if you are an actual principled originalist. Not so much if you are merely an unprincipled, partisan hack like Alito.
You don’t understand, Scalia wasn’t speaking ex cathedra — i.e., infallibly — he was speaking ex ass hola.
Plus, his fingers were crossed.
I often reference Bouvier’s 1856 law dictionary to better understand the legal meaning of words. For example, a “person” is man, woman or child (natural person). When person(s) is used legislatively, it is intended to mean natural persons unless something in the context shows it applies to an artificial person (corporation).
http://www.constitution.org/bouv/bouvier_p.htm
The definition of corporation can be found here:
http://www.constitution.org/bouv/bouvier_c.htm
To look up another word just change the letter in the url that follows bouvier.
There’s no law against adding an amendment to the Constitution…like say.. setting term limits for SCOTUS…gee, he’s always harping for Congress to go write laws…so dammit…go write that amendment and get rid of these twits. I know…dream on…
There is already a term limit, no?
This is quite an interesting turnaround for Scalia. Was it not he who agreed in Bush v Gore that to deny Bush tghe presidency was a violation of his 14th ammendment right? Was that not the entire basis on which Bush won the case?
You don’t get it
George Carlin has the answer
thanks for the great link – george carlin was the man.
Thank you for making these points for the benefit of those who might be under the errant impression that Scalia knows what he is talking about and is an honest man. He is, instead, deeply partisan and intellectually inconsistent.
Scalia is an ignorant fool who will be vilified by history. Let him spout his horseshit, he is just earning histories condemnation.
All this excitement about a casual remark in an interview. The real gem was Scalia bad-mouthing Chicago deep dish pizza. Democratic, progressive pizza. Pizza with a heart and a soul. Pizza for poor people. But nobody seems to care about that.
If Scalia wants to be an originalist (which I doubt; he cares only that his side wins) then maybe he should get a time machine and go back to the 1780s a period when Catholics were still suspect. Maybe he can convince the guys in Philly that they shouldn’t write in all those rights and should give the President all the power he wants….
Thom Hartmann’s old website had a chart where he compared before and after 1886 — I snagged it and posted it as a comment on Daily Kos. Categories: Rights and Privileges, Politics, Business, War, Regulation, Purpose, and Ownership. Like, if corporations are persons, how can one of those corporate persons own another one? 14th amendment, you know. From the chart, prior to 1886: “Just as human persons couldn’t own other persons, corporations couldn’t own the stock of other corporations (mergers and acquisitions were banned).” (!)
Tea Party originalists may wish to note:
(I’m looking for another Hartmann article I remember posting a link to; found this one instead — greed, governmental corruption and corporate cash seem all to be of a piece)
Ha! Found it:
Citizens United was proof that corporations will always get what they want because they are immortal. They can take their time and keep on coming back to the courts while their opponents die and the arguments against them have to be brought up again.
Look at where we are. There are elements in the GOP who are actually in Congress intent on repealing sections of the Fourteenth Amendment. One hundred forty-five years after Reconstruction and the bitter legislative battles over passing the 14th and 15th Amendments and we are still fighting to protect things that the oligarchs never wanted in the first place.
That’s why these people wear permanent smirks. They know it’s just a matter of time and they’ll always get their own way. Bunch of fucking kindergarden kids running our country.
I wish!
Marci, You & Jon are consistently TREMENDOUS, thanks for your efforts.
The claim that Scalia killed corporate personhood assumes that the body of his positions on issues will be internally consistent. That is hugely doubtful. Consistency has not been the distinguishing characteristic of “conservative” jurisprudence. Logic, law, reason, morality and compassion don’t influence corporatist judges. The result is what matters. The legal justification follows.
The unwritten rule is that the result does not help the peasants.
The ultimate goal is to strip all U.S. citizens, except for the rich and their well paid servants, of their formerly enjoyed constitutional rights.
He will probably say that because of the right of freedom of association, corporations which include at least one black male are entitled to protection (or some such rubbish). Remember that he justified extending copyrights indefinitely despite the constitution’s explicit invocation of “limited time” by saying that a limited time is anything less than infinity. He is an expert at twisting the law into knots.