(Resend) Re: Supreme Court on corporate rights

[Dave Farber <dave () farber net>]

Begin forwarded message:

> From: Seth Johnson <seth.johnson () realmeasures dyndns org>
> Date: January 22, 2010 10:37:26 AM EST
> To: Dave Farber <dave () farber net>, ip <ip () v2 listbox com>
> Cc: Paul Alan Levy <plevy () citizen org>
> Subject: (Resend) Re: [IP] Supreme Court on corporate rights

> (Resending -- the note that came through your list had only two
> short lines in it for some reason)
>
>
> Hi Dave -- for IP if you like.  My comments on this case should be
> interesting to many on your list.
>
>
> Any given state could devise conditions for granting a charter of
> limited liability. This clearly sets up a distinction whereby
> rights of natural persons are distinct from whatever statutory
> "rights" state-created corporate entities with limited liability
> privileges possess — at the state level. You can simply apply the
> principle of fundamental rights of natural persons on their own or
> within associations, while understanding associations with limited
> liability privileges as distinct because of those privileges.
>
> At the federal level, it's a different beast. The real problem
> with this ruling is that it looks like a further extension of
> corporate rights, when actually it’s an overapplication of federal
> commerce clause jurisdiction, so that by upholding the rights of
> persons and their associations at that level, the ruling glosses
> over the unique advantages that corporations have as compared to
> natural persons. Rather than clarifying that the artificial beings
> given limited liability by states may be distinguished from
> natural persons who have ordinary liability under the law, this
> ruling is a further gloss on many years of federal commerce clause
> rulings from which corporations got their "rights," creating yet
> more misconceptions about the corporate form.
>
> I think the conservatives could have been flipped by questioning
> the dormant commerce clause presupposition underlying the
> precedents that supposedly gave corporations first amendment
> rights. As I noted in an earlier note to your list on this case, I
> think Clarence Thomas might have found that interesting. But in
> general that line of analysis would have appealed to the
> conservatives far more than what they characterize as dislike of
> corporations on the part of the liberal wing. It certainly would
> have forced them to think harder about the nature of the issue
> rather than issue this blankly unreflective "can't stand in the
> way of free speech" rationale that drives this ruling.
>
> I would not say the issue is about trying to silence speakers --
> it's trying to gain recourse against artificial legal entities,
> even just to have it recognized that there should and can be such
> recourse.
>
> The left doesn't see how right now because they loves them some
> good rational federal laws pegged to the commerce clause; whereas
> the right doesn't see how because they forgot how we got here.
> What's perverse about this from the (modern) left perspective, is
> that it's from cases questioning those federal laws pegged to the
> commerce clause that corporations *got* their apparent "rights."
> At the same time, it's perverse from the modern right perspective,
> because states' rights and corporate rights have long been in
> inverse relationship with each other.
>
>
> Seth Johnson



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