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From: David Farber <dave@farber.net> Date: December 13, 2009 3:45:38 AM GMT-04:00 To: "ip" <ip@v2.listbox.com> Subject: [IP] Re: Sotomayer challenges decisions that gave corporations "person"status

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From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org> Date: December 12, 2009 11:06:27 PM EST To: dave@farber.net Cc: ip <ip@v2.listbox.com> Subject: Re: [IP] Sotomayer challenges decisions that gave corporations "person"status Reply-To: seth.johnson@RealMeasures.dyndns.org

Hi David -- for IP, if you wish. Somewhat lengthy, but I feel your readers will find it very intriguing. What follows are some comments I have been meaning to put together in response to this very exciting note from Jim Warren in early October, pointing to Justice Sotomayor's questioning corporate personhood in Citizens United v. FEC.

I'm not a lawyer, but this is an area that's very interesting to me. The best thing is that now that this question has been broached by a Supreme Court Justice, almost regardless of the outcome of the case, this whole area of questioning is now "legal tender," something that we can discuss and examine without feeling like we're working the fringes -- and I would submit that this has been very needful for a very long time. In fact, this single development stands out as changing my entire view of the prospects for this country under this administration.

I think folks will find the following observations highly intriguing:

1) The justices seem motivated by the question of corporate rights

First off, before sitting to write this note, I looked at the transcript last night

(http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-205%5BR eargued%5D.pdf

). What strikes me is that the line of questioning from the Justices seems to be specifically about the limits of the idea of giving corporations rights like natural persons. They are looking at various ways to draw lines, not necessarily wanting to go deep in the precedents, but still questioning the simple stance that the matter should be decided in terms of First Amendment "rights" of corporations.

Ginsburg asks the first question very specifically on this point, noting that a corporation "is not endowed by its creator with inalienable rights." This is an interesting phrasing that admits that corporate "rights" would not be fundamental or natural, but it still seems to allow for them being given rights by government acts (such as the 14th amendment). The whole discussion is thus already about the question of corporate rights, and this seems to me to indicate that the Court's bringing the case up for re-argument was motivated particularly by this question, or certainly questions closely related. Sotomayor's comment therefore stands out more for its taking the question back to very old court decisions, and for its indicating how the notion of corporate rights derived from judicial action rather than legislation or original notions of rights: "the courts [. . .] created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with [. . .] that the Court imbued a creature of State law with human characteristics."

2) Now, here are a couple of intriguing things to look at regarding Clarence Thomas

There was an odd article in the New York Times back in April about Clarence Thomas speaking up before a group of students (Reticent Justice Opens Up to a Group of Students: http://www.nytimes.com/2009/04/14/us/14bar.html?_r=1).

I point at it because he makes a very strange comment about the legal term of art, "dormant commerce clause" -- in fact the article's authors state that they don't see the term's relationship to the question he's addressing:

The questions from students were read to Justice Thomas, and the first one seemed to throw him off. Since the Civil War, what has changed the way Americans view the Constitution the most and why? an unidentified student asked.

Justice Thomas gave a rambling response, touching on the Fourteenth Amendment, the rights of freed slaves, the application of parts of the Bill of Rights to the states and Justice John Marshall Harlans dissent in Plessy v. Ferguson, the 1896 Supreme Court decision that endorsed the doctrine of separate but equal.

Im sure there are other things that have happened, he said, wrapping up his answer. So I would have to say just off the top of my head the Fourteenth Amendment. And I bet you someones going to hear that and say, well, no, its the dormant commerce clause or something.

That was a curious aside. Few Americans could name the dormant commerce clause, and it has no obvious connection to how popular views of the Constitution changed after the Civil War.

I found this entire article strange in many ways, but one thing that's intriguing about this passage is that in fact the term "dormant commerce clause" is *very* relevant to the question of corporate rights. Before a certain point, this term meant nearly the exact opposite of what it has come to mean more recently: it meant that if the Federal legislature has not acted on a matter, then the Commerce Clause remains dormant, not in effect, and State rules apply. You see this sense of dormancy in Willson v. Black Bird in 1829. However, in the 1851 Cooley v. Wardens case, "dormancy" or silence on the part of Congress became an occasion for the Supreme Court to begin to fill in the blanks. Then with the 1876 Welton v. Missouri case, "dormancy" came to mean that the Supreme Court would assume that interstate commerce must be unimpeded unless Congress said otherwise.

This final assumption has underlaid many rulings since then (and commerce clause rulings run all over the place, but over time this assumption has tended to lead in a general direction). The result has been that when any state law confronted a corporation in court that felt their local regulation was impeding their ability to engage in interstate commerce, not only did the court's ruling affect the subject of the law (state taxes, local environmental rules, etc.), but it also translated into notions of powers that corporations had -- their "rights" as they appeared to exist within the context that was given by the assumption of "free and untrammeled" commerce between states, the assumption that has been carried in the "dormant commerce clause" conception.

If Justice Thomas thinks the "dormant commerce clause" has changed the way Americans view the Constitution since the Civil War, then it seems to me quite likely that this is what he has in mind.

Another thing to keep in mind about Clarence Thomas has been described very well by Jan Crawford Greenburg in the following video clip:

Jan Crawford Greenburg on Justice Thomas's effect on the Supreme Court: http://www.youtube.com/v/s4vUpV6eDNk

Ms. Greenburg describes how Thomas is willing to override precedents if he doesn't think they make sense, and is known to have flipped the conservatives on the Court as he has done so -- they might originally find a case one way based on more recent precedent, but then when they read Thomas's brief, they flip the other way.

Now, I haven't made a reading of Thomas's reasoning and philosophy -- I'm just going by these indications. But I hardly think he could mean anything else when he says the dormant commerce clause has changed views of the Constitution.

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What seems possible to me given these factors is that the Supreme Court may be confronting the corporate personhood/corporate "rights" question in very fundamental terms. It seems quite plausible that we will see a convergence or a mutual buttressing of the left and right sides of the court, with the result being a lopsided affirmation of the lower court's ruling disallowing the airing of the Hillary Clinton documentary shortly before the election -- with a ruling that may revise precedents profoundly. Or we may see a ruling that remands while revising jurisprudence regarding corporate "rights" in surprising and fundamental ways.

Even if they make a more narrow ruling, I still see profound prospects for this Court to address the question of corporate power in surprising and fundamentally transformative ways, so we have great reason to hope that we could find this court supporting recourse against the corporate form.

Anyway, these are the things that make me look upon this court with a good degree excitement, even hope. If this question is about to be taken up in the ways that seem possible, then we stand a chance of regaining a government of, by and for the people.

Seth Johnson

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