Tuesday, September 29, 2009

American Corporate Power & the U.S. Supreme Court

Chief Justice John Marshall wrote in an 1819 Supreme Court decision, “A corporation is an artificial being, invisible, intangible. It possesses only those properties which the charter of its creation confers upon it.”

But something happened in the U.S. Supreme court in 1886 that changed that “artificial being” into something equivalent to a human person. It took further decades, but gradually American corporations got the same protection of equal laws that natural persons have, which was (O my brethren) a fatal step we took away from democracy.

Our current John Roberts Supreme Court looks poised to take another leap down that rotten path. The special re-hearing on September 9 of Citizens United v. FEC (08-205) scratched an itch the majority conservative justices on the Roberts Court have to unleash American corporations altogether. The narrow case involves just the overturning of McCain-Feingold campaign finance reform laws, as they apply to corporations. But the larger question is whether government has any right to regulate corporations at all. Every commentator we’ve seen expects the Court to throw out McCain-Feingold as regards the involvement of corporations in the buying of elections, because (hey!) corporate money is just a form of speech, no? In other words, free and fair elections, not to mention what’s left of our democracy, is about to be royally screwed.

The Worst Supreme Court Case Evah
In 1886 the most powerful corporations in the country were a part of the industrializing juggernaut – steel and railroads, above all others. While there was a strong progressive movement to curb monopolies and rein in huge financial “trusts,” there was an equally strong impulse to shield business activity from government regulation. Unfortunately, the latter impulse had the American legal community behind it.

In an otherwise obscure tax case, Santa Clara County v. Southern Pacific Railroad (118 U.S. 394), the Supreme Court ruled that California government could not tax the all-powerful railroad for the fences running beside their tracks. That was nothing. But later a court reporter, who was (just incidentally) a former railroad company president, wrote a headnote to the case summarizing the main facts and arguments, as was his job. In the headnote, which got distributed to all the legal community in the nation, the court reporter noted that the Supremes had decided, by the way, that a corporation was, legally, a human person enjoying the protections of the 14th Amendment. While the Court had not, in fact, addressed the question of corporate “personhood” nor its relation to the 14th Amendment, the court reporter’s summary nevertheless established it.

So what? you ask. The 14th Amendment, the “equal protection” amendment, was meant to shield weak individuals, who had lately been slaves, from unjust power. But forevermore, the 14th Amendment would be used to remove corporations from the control of governments. In the eyes of the law since 1886, you and the Exxon Mobile Corporation are equals.

Justice William O. Douglas wrote in 1949, “the Santa Clara case becomes one of the most momentous of all our decisions. Corporations were now armed with constitutional prerogatives.”

What Justice Sotomayor Said
Corporations do bear several resemblances to (certain) human individuals: They possess no conscience, they recognize no Higher Power, they’ll eat until they burst. They are motivated by one thing: more money. They will do what’s necessary to get it.

They have put us in unsafe vehicles and sent us hurtling to our deaths. They have stuffed cancer sticks in our mouths and made us die for more. They have polluted our water, our air, and our land with their garbage. And they have made government the handmaiden of their habits. They mainly own the government because they mainly buy our supposed representatives. Their lobbyists write the laws that will regulate their behavior. We bail them out when they get into trouble. And with Citizens United v. FEC, the Supreme Court is about to let them loose to manipulate us ever more openly with what millions of $$ in advertising can buy before an election.

However, in the oral arguments on September 9, our newest Justice on the Court, Sonia Sotomayor, became the small voice crying in this blithering wilderness of corporatism. While the conservative justices were being embarrassing lickspittles (Anthony Kennedy: “Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election”), Justice Sotomayor made a provocative observation that might have elicited gasps in the courtroom. She suggested that the majority has it all wrong and that the court should be reconsidering those 19th century rulings that first afforded corporations the same rights of flesh-and-blood people. Judges “created corporations as persons,” said Sotormayor, “gave birth to corporations as persons. There could be an argument made that that was the court’s error to start with ... [imbuing] a creature of state law with human characteristics.”

Sotomayor will not prevail on this present Court, of course, but at least one justice is thinking about the implications and the wrong-headedness of what a court reporter inserted as a headnote to an 1886 tax decision.

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