Fwd: [IP] Re: Sotomayer challenges decisions that gave corporations "person"status

[R.A. Hettinga]

Begin forwarded message:

> From: David Farber <dave at farber.net>
> Date: December 13, 2009 3:45:38 AM GMT-04:00
> To: "ip" <ip at v2.listbox.com>
> Subject: [IP] Re:   Sotomayer challenges decisions that gave
> corporations  "person"status
>
>
>
> Begin forwarded message:
>
> From: Seth Johnson <seth.johnson at RealMeasures.dyndns.org>
> Date: December 12, 2009 11:06:27 PM EST
> To: dave at farber.net
> Cc: ip <ip at v2.listbox.com>
> Subject: Re: [IP] Sotomayer challenges decisions that gave
> corporations "person"status
> Reply-To: seth.johnson at 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.
>
> --
>
> 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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