September 17, 2009


Did Thomas Jefferson Think Corporations Were People? (Carl Pope, 9/14/09, Sierra Club)

[I]f you want to argue originalism, you must also throw out all the judge-made law of the last half of the 19th century, too. And it is the cases of that era --cases that established that corporations have rights like individuals -- that Alito, Scalia, and Thomas are relying on to make their case for throwing out Congressional regulation of corporate political spending.

The key decision came in 1886, in Santa Clara County vs. Southern Pacific Railway. At the start of the case, the Chief Justice announced that the Court would not even hear arguments about whether the 14th amendment, guaranteed equal rights to all citizens, included corporations -- the Court simply declared that it did. In doing to, it ignored the well-established legal doctrine that once a state gave a corporation a privilege it constituted a contract that must be honored but also that the specific privileges granted came with its charter and did not extend beyond it.

Now this was judge-made law with a vengeance. It utterly upset the small-holder character of the original Constitution, with its deeply ingrained mistrust of corporations and other large economic institutions. But even after these cases, the Courts continued to rule that Congress and the states had the right to regulate some corporate political spending. (Indeed, in a 1978 case that restricted the right to limit corporate spending on ballot measures, Chief Justice Rehnquist dissented specifically because he did not feel that corporations were persons for purposes of political speech.)

Now what faces the Court in Citizens United v. the FEC is an effort to complete the judge-made revolution that begin in Santa Clara. Corporations would be granted not only the special privileges of their status (immortality, limited liability, protection from most criminal sanctions) but also the full range of political privileges of American citizens.

And Alito, Scalia, and Thomas don't acknowledge this enormous incompatibility with their purported judicial doctrine, and few in the media have challenged them on it. (Briefs have been filed with the Supreme Court raising this issue -- but they get barely any public notice.)

In the oral arguments, newly arrived Justice Sotomayor raised openly from the bench, for the first time in decades, the question of whether the original corporate personhood cases like Santa Clara were rightly decided.

Neutral Principles and Some First Amendment Problems (Robert H. Bork, 1971, Indiana Law Journal)
The requirement that the Court be principled arises from the resolution of the seeming anomaly of judicial supremacy in a democratic society. If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic. The anomaly is dissipated, however, by the model of government embodied in the structure of the Constitution, a model upon which popular consent to limited government by the Supreme Court also rests. This model we may for convenience, though perhaps not with total accuracy, call “Madisonian.”

A Madisonian system is not completely democratic, if by “democratic” we mean completely majoritarian. It assumes that in wide areas of life majorities are entitled to rule for no better reason than that they are majorities. We need not pause here to examine the philosophical underpinnings of that assumption since it is a “given” in our society; nor need we worry that “majority” is a term of art meaning often no more than the shifting combinations of minorities that add to temporary majorities in the legislature. That majorities are so constituted is inevitable. In any case, one essential premise of the Madisonian model is majoritarianism. The model has also a counter-majoritarian premise, however, for it assumes there are some areas of life a majority should not control. There are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom, and coercion by the majority in these aspects of life is tyranny.

Some see the model as containing an inherent, perhaps an insoluble, dilemma. Majority tyranny occurs if the legislation invades the areas properly left to individual freedom. Minority tyranny occurs if the majority is prevented from ruling where its power is legitimate. Yet, quite obviously, neither the majority not the minority can be trusted to define the freedom of the other. This dilemma is resolved in constitutional theory, and in popular understanding, by the Supreme Court’s power to define both majority and minority freedom through the interpretation of the Constitution. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and place beyond the reach of majorities by, the Constitution.

But this resolution of the dilemma imposes severe requirements upon the Court. For it follows that the Court’s power is legitimate only if it has, and can demonstrate in reasoned opinions that it has, a valid theory, derived from the Constitution, of the respective spheres of majority and minority freedom. If it does not have such a theory but actually follows its own predilections, the Court violates the postulates of the Madisonian model that alone justifies its power. It then necessarily abets the tyranny either of the majority or of the minority.

This argument is central to the issue of legitimate authority because the Supreme Court’s power to govern rests upon the popular acceptance of this model. Evidence that this is, in fact, the basis of the Court’s power is to be gleaned everywhere in our culture. We need not canvas here such things as high school civics texts and newspaper commentary, for the most telling evidence may be found in the U.S. Reports. The Supreme Court regularly insists that its results, and most particularly its controversial results, do not spring from the mere will of the justices in the majority but are supported, indeed compelled, by a proper understanding of the Constitution of the United States. Value choices are attributed to the Founding Fathers, not to the Court. The way an institution advertises tells you what it thinks its customers demand.

This is, I think, the ultimate reason the Court must be principled. If it does not have and rigorously adhere to a valid and consistent theory of majority and minority freedom based upon the Constitution, judicial supremacy, given the axioms of our system, is, precisely to that extent, illegitimate. The root of its illegitimacy is that it opens a chasm between the reality of the Court’s performance and the constitutional and popular assumptions that give it power.

Had Robert Bork been confirmed to the Court, the Right would despise him.

Posted by Orrin Judd at September 17, 2009 9:45 AM
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