July 31, 2005


A line of inquiry for Supreme Court nominee Roberts: The 14th Amendment, ratified in 1868, gave former slaves full citizenship. Not long afterward it was read by the high court to also apply to corporations. Morton Mintz says that was a radical ruling. (Morton Mintz, 7-27-05, Nieman Watchdog)

Q. For Judge Roberts: The law of the land since 1886 is that a corporation is a person, with all the rights that entails. What’s your view: Is a corporation a person?

Judge Robert H. Bork, President Reagan's failed Supreme Court nominee, famously denounced Roe v. Wade as "a wholly unjustified usurpation of state legislative authority." For the moment, at least, let's assume he was correct. Then what about the Court's pronouncement more than a century ago that a private corporation—a paper entity that cannot wear a uniform, bleed, vote, be sent to prison or the death chamber, and that may give tens of millions of dollars to politicians during a possible lifespan of hundreds of years—is a "person" that cannot be denied "the equal protection of the laws"? Was that pronouncement also "a wholly unjustified usurpation of state legislative authority"?

These would surely be appropriate and challenging questions for Judge John G. Roberts, Jr., President Bush's Supreme Court nominee, when he comes before the Senate Judiciary Committee. But don't count on any such questions being asked. That's because Democratic and Republican committee members alike, sensitized to corporate power, have for decades avoided putting them to any one of hundreds of judicial nominees.

The Fourteenth Amendment to the Constitution was ratified in 1868, soon after the end of the Civil War. It declares that no state shall deprive "any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The "person" Congress and the ratifying states had in mind—the human being in need of equal protection, particularly in the states of the old Confederacy—was the newly-freed slave. Nothing in either the text or the legislative history of the Amendment suggests otherwise.

Nothing in the law would do more good than to accept that the 14th applied only to newly freed slave.

Posted by Orrin Judd at July 31, 2005 12:05 PM

You're way off on this one, OJ. To change or destroy the current definition of a corporation is a pet project of the radical left. I fail to see how destroying the established business structure of the country would be such a good thing for anyone but lawyers and socialists, who will immediately jump into the rubble to "fix" things their way.

Posted by: PapayaSF at July 31, 2005 3:26 PM

A corporation isn't a person.

But the end result would be to kill the 14th, which would be all to the good.

Posted by: oj at July 31, 2005 3:33 PM

And ending 'equal protection' would be good for what reason?

You want us to go back to the 'good old days' of Jim Crow and 'No Jews or dogs allowed?'

Posted by: bart at July 31, 2005 4:30 PM

Seems a serious risk, huh?

Posted by: oj at July 31, 2005 4:38 PM

At the state level, maybe not, though David Duke still managed 40% of the total and a majority of white votes.
At the local level, it may not be as blatant as "No Jews or dogs allowed" but the substantive effect would be the same.


Posted by: Noel at July 31, 2005 5:12 PM

Compare Wilhelmine Germany with Hitler's. In only 19 years, Jews went from full equality to the ovens. Americans are no better and no worse than Germans. People are people, especially as the Law of Large Numbers applies. Poland and Hungary between the wars were no better, and far worse than they had been under the Hapsburgs.

In an economic downturn, all bets are off.

Posted by: bart at July 31, 2005 5:15 PM

Ah, the self-hating American resurfaces.

Posted by: David Cohen at July 31, 2005 6:19 PM

Even better, he thinks that when we decide all bets are off the one he's placed will be honored.

Posted by: oj at July 31, 2005 8:18 PM

Sure, why on Earth would a corporation, a legal fiction, need the constitutional protections of due process and equal protection. There's no need for a trial by jury, or even a trial at all for a corporation accused of a crime. Why, the executive should be able to be be judge, jury and executioner on a mere preponderance of the evidence, and should be free to impose as large a fine as it wants (assuming that the no excessive fines clause also doesn't apply to mere paper entities).

Also, why not just make up new crimes and charge corporations with them, assuming that the ex post facto clause was not designed to protect a mere legal fiction.

It's not as if local district attorneys ever abuse their offices to bring charges against political enemies, or that individuals whose assets are tied up in a corporation (whether a large company or small business) could be financially ruined under such circumstances. On the other hand, I could be wrong.

Posted by: Thom at July 31, 2005 11:16 PM


No corporation has ever been sent to prison.

Posted by: oj at July 31, 2005 11:19 PM

Germany had a culture of anti-Semitism far deeper, older and socially accepted than anything America has ever seen.

Posted by: Ali Choudhury at August 1, 2005 5:14 AM

You'r right. As long as you can't face more than 6 months in a minimum security camp prison without the full panoply of Constitutional protections, its really would be nothing to be concerned about if the government could simply confiscate your assets through a kangaroo criminal proceeding against a corporation into which you've invested your wealth and which you spent your life building.

Your blindness on the dangers of this is really astounding.

Posted by: Thom at August 1, 2005 2:21 PM

So you agree that no corporation has ever been sent to prison?

Posted by: oj at August 1, 2005 2:46 PM

I admitted in my first sentence that no corporation has ever gone to prison, so your flippant response, which doesn't even attempt to address the point I made, was gratuitous.

Not all corporations are multinational behemoths. Most, in fact, are small closely held companies that consitute a significant portion of their owners' wealth.

Posted by: Thom at August 1, 2005 3:49 PM

And if they're criminals they'll go to prison--not the corporation.

Posted by: oj at August 1, 2005 5:10 PM

Why would it make a difference whether or not a corporation is a person? Regulations frequently violate the rights of people who own or run corporations.

Posted by: Joseph Hertzlinger at August 1, 2005 5:26 PM

Mintz neither understands the law or what the court did. Of course a corporation is a person, that is not news. That was the law from long ago.

And, as Joseph points out, if you disregard the corporate personality, you must still recognize the rights of the natural persons who are associated in the corporation.

What the court did in the 1880s was to adopt the first version of the theory of substantive due process. That was the overreach. In the 1930s they killed SDP v1. Which was revived in the 1970s as Roe v. Wade.

SDP is the real problem.

Posted by: Robert Schwartz at August 2, 2005 12:19 AM