Re: Sotomayer challenges decisions that gave corporations "person"status

[David Farber <dave () farber net>]

Begin forwarded message:

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%5BReargued%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 Harlan’s dissent in Plessy v.
  Ferguson, the 1896 Supreme Court decision that endorsed
  the doctrine of “separate but equal.”

  “I’m 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 someone’s going to hear that and say, well, no,
  it’s 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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