In January 2010, the Supreme Court ruled in Citizens United v. Federal Election Commission (pdf) that corporations, at least with respect to certain First Amendment rights, are persons entitled to constitutional protections. The Court’s opinion (and particularly Justice Scalia’s concurring opinion) invoked what was described as the “Framer’s view” of corporations as support for extending corporate personhood.
Whether a corporation should have the same First Amendment speech rights that individuals hold is an interesting (and complicated) debate- and not necessarily one that turns on how the Framers felt on the subject. That said, if you are interested in an informed perspective on how the Framers did feel about equating corporations with persons, Brian Murphy, a history professor at Baruch College in New York, has some interesting insight to offer. Professor Murphy notes:
One of the original purposes of corporate charters in the United States was to allow groups of people to file lawsuits, and be sued, in courts. But it wasn’t absolutely necessary — if you and your partners formed a joint-stock company, you created an entity that had bylaws and directors and could enter into contracts and enforce them in courts. What the corporate charter did was grant additional privileges to this basic joint-stock company framework. In the case of state-sanctioned infrastructure projects — turnpikes and bridges — corporations usually held monopolies or exclusive rights of some kind. In the case of early American banks, their biggest privilege was limited liability and favored status as deposit institutions for state revenues, which usually gave them de facto monopolies.
So the corporation doesn’t merely arise because it’s a convenient legal form. Instead, it was a useful tool for capital formation because it carried economic privileges that protected investors and enabled them to externalize all kinds of risks and costs. That’s why charters are difficult to obtain in early America. You have to spend political capital to get one passed through two legislative houses and signed by a governor’s pen.
When general incorporation acts are eventually adopted by states in the early nineteenth century, the states’ intent is to level the playing field and disentangle themselves from the political power — and burden — of choosing among rival groups of charter-seekers. The intent of these laws is therefore the opposite of what the Court asserted in Citizens United. Free incorporation was meant to limit the power of corporations by democratizing the corporate form through dilution. It was supposed to be a giant leap in distinguishing between public and private spheres of activity.
In other words, the Framers would not have equated the term “association” with “corporation” as the majority did in Citizens United. Individuals had long formed “associations” for various purposes, but the economic and limited liability structure known as the “corporation” was available only to the politically privileged around the time of the founding. Only later was the process democratized to allow anyone to incorporate, and shortly thereafter the Court began interpreting “corporation” as “association.” While the Founders may have recognized a right of free speech for “associations,” there isn’t much evidence they would have favored a right of free speech for “corporations,” at least as the term was understood by the Founders.
It may be that the distinction between “association” and “corporation” has so fallen away today that it makes sense to extend free speech rights to a corporation, but invoking the Founders’ views as support for corporate free speech rights seems clearly in error.
Anytime a judge is nominated for a position on a federal circuit court, and especially for the Supreme Court, you will hear Senators during the confirmation hearings ask the nominee how a judge should interpret the Constitution. For many conservatives, there is only one acceptable answer: originalism.
Originalism is typically explained to the public as meaning “what the founders thought.” The explanation appears simple and is easy for the layperson to quickly understand (undoubtedly part of the reason it has taken such a hold in the conservative movement). Unfortunately, that explanation isn’t all that accurate.
The first problem with originalism is it paints the founders as being of one mind. That wasn’t true of most issues which were actually addressed by the founders, so how likely is it to be true of issues not directly contemplated by the founders? Originalism also struggles to define who the founders were (there are different camps within originalism on this question). Which founders one looks to in deciding what the founders believed may very well radically change the outcome of a particular case. Would the members of the Constitutional Convention as a whole be considered the founders? Or how about members of the Committee on Style (which penned the language in the Constitution)? How about Madison, who was possibly the most influential member of the Convention? Of course, the Convention only proposed the Constitution to the states. Should the state legislatures who ratified the Constitution be considered the founders instead? Committees of those legislatures? Key figures in those legislatures? Does public perception about what a provision meant (if it could be gauged) trump what the drafters themselves thought it meant? Even more problematic is the fact that the Constitution has been amended in significant ways since it was adopted. This is particularly true of the 14th Amendment which, for reasons I won’t get into here, radically changed the manner in which the Constitution is interpreted today. Are the drafters of the 14th Amendment the founders? The states who ratified the 14th Amendment, etc., etc.? There aren’t any good answers to these questions, other than that the voices that support a particular outcome tend to be the voices called the “founders.”
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Judge Vaughn Walker’s opinion in Perry v Schwarzenegger concludes that California’s Proposition 8 (which effectively made homosexual marriage illegal) is unconstitutional under the Due Process Clause and the Equal Protection Clause. In overturning Prop 8, Judge Walker held:
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.
Walker’s opinion is well-reasoned and carefully constructed, and sends a clear warning shot to other states which have banned homosexual marriage. Walker held that the right of homosexuals to marry is a “fundamental right,” which demands a higher level of scrutiny when government action infringes upon that right. However, perhaps anticipating that an appeals court would disagree with the “fundamental right” assessment, Walker also addressed the case on a lower rational basis review and found that even under that review Prop 8 was unconstitutional.
As California now knows, advancing even a rational basis won’t be easy for any state- something that Justice Scalia noted in his dissenting opinion in Lawrence v. Texas (a case which held that anti-sodomy statutes are unconstitutional when applied to the acts of consenting adults in private quarters):
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is no legitimate state interest for purposes of proscribing that conduct… what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case does not involve the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
Judge Walker’s opinion brilliantly cited Justice Scalia’s statement above, all but daring Justice Scalia to overturn Scalia’s own reasoning in Lawrence v. Texas. Of course, that won’t be easy for Justice Scalia.
Lawrence v. Texas itself overturned a 1986 case, Bowers v. Hardwick, which effectively held state prohibitions on homosexual conduct are permissible under the Constitution. The Supreme Court generally adheres to the legal principle of stare decisis, which demands that judges uphold rulings established in prior cases. Scalia’s dissent makes clear that he believes Bowers v. Hardwick should not have been overruled, but Scalia perhaps regrets his strong dissenting language connecting the decision in Lawrence v. Texas to the constitutionality of gay marriage. While Scalia himself can ignore stare decisis entirely if he so chooses, lower court judges cannot (at least with respect to Supreme Court decisions). Walker was correct to note, then, that if Scalia’s dissent (which was joined by Chief Justice Rehnquist and Justice Thomas) says the Court’s decision means gay marriage must now be held constitutional, there’s a good reason to think gay marriage is constitutional.
Scalia will likely get an opportunity to revisit his words in Lawrence, as the Prop 8 case is almost certain to find its way to the Supreme Court at some point. When that occurs, Scalia will have to make several choices, the first of which will be whether to respect Lawrence v. Texas as binding precedent. If Scalia accepts that Lawrence is binding, his dissent makes clear that he would uphold gay marriage (there being no rational basis to deny homosexuals the right to marry).
Scalia alternatively may attempt to argue that Lawrence is not binding, but that can only be accomplished in one of two ways: 1) overturning Lawrence; or 2) distinguishing Lawrence from the Prop 8 case. With respect to the first, overturning Lawrence would effectively reinstitute Bowers as the law of the land. That would be a devastating blow to the homosexual community, moving backwards not only on homosexual marriage but also on anti-sodomy laws. Such an outcome seems highly unlikely, however, for several reasons. As mentioned above, the Court is reluctant to overturn prior holdings. Overturning a holding which itself overturned a prior holding would be messy and problematic. Furthermore, even if Scalia and Thomas join forces to overturn Lawrence, it’s unlikely they have the votes to succeed. Justice Kennedy, who is typically the swing vote on closely contested cases, authored the opinion in Lawrence v. Texas. Kagan, Sotomayor, Ginsburg, and Breyer are also highly unlikely to overturn Lawrence (Ginsburg and Breyer joined the majority in Lawrence).
If Scalia can’t overturn Lawrence, that leaves him with distinguishing Lawrence. Scalia’s bombastic writing style has landed him in hot water here, however, as Scalia expressly argued in Lawrence that it is impossible to distinguish between Lawrence and a case involving the right of homosexuals to marry.
Assuming the left/right composition of the Court does not change in the next four years or so, Judge Walker’s ruling is likely to be upheld by the Supreme Court. That doesn’t mean that homosexuals have an unfettered right to marry, but for now it means that California’s prohibition of homosexual marriage must pass “strict scrutiny” (the standard of review for infringement of a fundamental right), or, if rational basis review is used instead by an appeals court, a rational basis for prohibiting homosexual marriage (and given the difficulty of showing such a rational basis, homosexual marriage may become constitutionally entrenched).
In the meantime, the impact of Judge Walker’s ruling likely won’t be felt for some time. While Walker’s opinion does have a legal effect within California, Walker has already issued a stay pending appeal to the 9th Circuit. As long as the stay remains in place, the decision will have no actual effect in California. Other federal districts and states are not bound by Judge Walker’s opinion and to the extent litigation arises in those jurisdictions, those courts are free to reach an entirely different conclusion. The 9th Circuit will review the Prop 8 case on appeal, and if they uphold the decision, the 9th Circuit’s opinion will be binding on all courts within the circuit (Alaska, Washington, Oregon, Idaho, Montana, Nevada, Arizona and Hawaii), but will not be binding on courts outside of the 9th Circuit. Only a US Supreme Court decision would be binding on all US jurisdictions.
By now most political observers know that Elena Kagan, President Obama’s nominee to replace Justice Stevens on the Supreme Court, wrote in a 1995 law review article that judicial nominees should be more forthright when questioned by the Senate Judiciary Committee prior to confirmation. For any who have watched all or a portion of Kagan’s confirmation hearings, it’s clear Kagan has abandoned that precept (and has openly stated as such in response to a question by Senator Hatch).
Instead of forthrightness, Kagan has reverted to the “I can’t comment” model adopted by every single Supreme Court justice following the Judge Bork confirmation hearing in 1987. The “I can’t comment” model actually has a reasonable sounding rationale supporting it: the nominee could one day be presented with a case or controversy involving a specific area of the law, and openly opining before the Senate on how that type of case should be resolved before reviewing the particular facts and circumstances of the future case or controversy would appear prejudicial and improper. That’s the reason Kagan is giving now for becoming the newest “I can’t comment” convert. I don’t believe that is the real reason for her recent change of mind. A better reason is articulated in her 1995 law review article- namely that the Senate isn’t interested in a meaningful discussion on judicial philosophy or in a non-political process.
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A while back, I wrote on the Supreme Court’s holding in U.S. v. Comstock. In that case, the Court held that Congress has the power under Article 1, §8 of the Constitution, to enact a statute which permits states to keep sexual predators in “civil commitment” after the expiration of their federal sentence. The Court did not decide, however, whether other provisions of the Constitution might be violated by such a statute, such as the right to due process, the prohibition on double jeopardy, the prohibition on cruel and unusual punishment, etc. Instead, the Court remanded the case to lower courts for a determination on those questions.
I believe the portion of the statute in question to be oppressive and unconstitutional. As repulsed as I am by pedophiles and their evil acts, the Constitution cannot, and must not, be interpreted to apply only to desirable groups of individuals. For this same reason, I have found myself arguing on behalf of the rights of terrorists as well, another abhorrent group. What follows is likely not going to be a popular position.
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Tea Partiers are working to get Senator Menendez (D-NJ) out of the US Senate, not through a normal election but through a recall. It isn’t clear why Menendez has become the Tea Party recall target. The website spearheading the recall effort has several links facilitating donations to the movement, but zero links to an explanation about why New Jersey voters can’t wait until the next election (in 2012) to unseat Menendez.
Even as the recall effort picks up some momentum, Menendez likely has little to worry about. The recall effort is already tied up in litigation over whether a US Senator can be recalled under state law and the US Constitution. In March, a three-judge appellate panel of the New Jersey Superior Court ruled that the New Jersey Constitution and state law did permit a recall of a US Senator, although the court expressly refused to rule on whether the US Constitution would permit such a recall. Menendez appealed that court’s decision, and today the New Jersey Supreme Court heard oral arguments on whether the recall initiative can proceed.
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By now most have heard of Rand Paul’s interview with Rachel Maddow where Paul, the Republican nominee for Senate from Kentucky, argued that the Civil Rights Act of 1964 was wrong to prohibit racial discrimination by private businesses.
Paul’s statements do not make him a racist, they make him an extremist. His views flow directly from an extreme application of libertarianism which suggests the government should not get involved in regulating the private conduct of individuals. Perhaps realizing he was treading in unfriendly waters, Paul repeatedly argued on Maddow’s program that his views on the Civil Rights Act are irrelevant because nobody is debating the Civil Rights Act as a campaign issue in 2010. Ezra Klein aptly pointed out a big reason why Paul’s statements are relevant:
There is a category of scandal that I call “area politician believes kooky but harmless thing.” A candidate who thinks he was abducted by UFOs would fit here. It’s weird, but it doesn’t have many implications for public policy. What’s gotten Paul in trouble, however, is that he’s so skeptical of government power that he’s not even comfortable with the public sector telling private businesses that they can’t discriminate based on race. That, I fear, does have public policy implications.
For instance: Can the federal government set the private sector’s minimum wage? Can it tell private businesses not to hire illegal immigrants? Can it tell oil companies what safety systems to build into an offshore drilling platform? Can it tell toy companies to test for lead? Can it tell liquor stores not to sell to minors? These are the sort of questions that Paul needs to be asked now, because the issue is not “area politician believes kooky but harmless thing.” It’s “area politician espouses extremist philosophy on issue he will be voting on constantly.”
Paul has applied his ultra-libertarian doctrines to questions of discrimination, and he has concluded that the market would solve the problem. As Paul told Maddow, racial discrimination is a “bad business decision,” and he would “not go to that Woolworths [that discriminates],” and would “stand up in [his] community and say [discrimination] is abhorrent.” While it’s good that Paul would not frequent such a business, his argument is a theoretical one which fails as a historical fact. Furthermore, some issues are far too important to leave to the whims and timing of the market.
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First they came for the communists, and I did not speak out—because I was not a communist;
Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist;
Then they came for the Jews, and I did not speak out—because I was not a Jew;
Then they came for me—and there was no one left to speak out for me.
–Pastor Martin Niemöller
The claim that the “Constitution doesn’t apply to foreigners” didn’t begin with the Bush administration, but it gained a lot of momentum under it. So much so that I would guess everybody reading this article (thanks to both of you) has heard that claim multiple times and may even believe it to be legally sound. It isn’t.
The Constitution covers a lot of ground, so I am not going to pretend to offer a treatise on each provision that may or may not apply to foreigners. Instead, let’s keep this to the context in which the claim currently is being made in the news- that foreign terrorists have no constitutional rights under any circumstance.
First, let’s begin where any constitutional analysis should begin- its text.
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If you haven’t seen it already, yesterday’s 90 minute meeting between President Obama and the House Republicans was the most refreshing and entertaining televised political discourse undertaken by politicians at a national level in years. Maybe decades. For that reason alone, it was also shocking.
At the invitation of House Republicans, President Obama appeared for a question and answer session which nobody, and particularly the House Republicans, thought would turn into a true debate. The event was expected to be a nice photo op for all parties involved with each side presenting their standard talking points and perhaps exchanging a few political jabs designed to get a headline on the morning news shows. Obama had something else in mind entirely- which is perhaps why he demanded that television cameras film the entire event. The request for cameras made Republicans uncomfortable, but after having blasted Obama for failing to televise all health care negotiations on C-Span, they had little choice but to acquiesce.
The question and answer session began with a politically charged list of accusations leveled by Rep. Mike Pence, the “host” of the meeting, at President Obama. In hindsight, I am not sure what response Pence expected to receive, but I am quite certain he didn’t expect the response he actually received. President Obama gave a lengthy answer that factually countered each of Pence’s charges… on the merits. In the process, Obama’s reasoned and intelligent response made Rep. Pence look silly and unserious. Amazingly enough, Republican after Republican- even having seen what had just occurred- still rose to ask their politically charged questions. And one by one, President Obama dismantled them.
I once heard Justice Scalia asked who, in his opinion, was the best advocate to ever argue before the Supreme Court. He responded, with little hesitation, “Rex E. Lee, the former Solicitor General.” When prodded further for an example of what made Rex Lee so special, Scalia said that he once told Lee that Lee’s position had a flaw in it which could not possibly be fixed. Scalia summarized Lee’s response as, “You are right- that is a flaw in my argument, and I recognize it cannot be fixed. But I still win because of X, Y and Z.” Lee won the case.
Obama seems to have taken a page from the Rex E. Lee playbook. There are no perfect positions in politics. All positions on complex issues are flawed in some manner, so we set about trying to find the one with the flaws we can live with most and which will do the most good. Repeatedly, President Obama made this point. He admitted his own flaws on multiple occasions which seemed to disarm the Republican questioner. Then he set about explaining why even with that flaw, his position was superior. Republicans never caught up. Instead, they continued following the traditional political style of “admit no flaw and paint your enemy as unreasonable and dangerous to America.”
It is depressing in a sense to realize just why this exchange was so refreshing- it has been a very long time since any politician attempted real and honest debate in the political halls of Washington. The great tradition of the Lincoln-Douglas debate has moved out of the spotlight and into the think tanks which dot the DC landscape, if the tradition remains at all. The think tanks develop possible solutions to various problems, lobbyists seize on the solutions most favorable to their clients, politicians are fed lines from think tanks, lobbyists and party leaders, and all we hear from politicians are politically-charged one-liners designed to fit nicely in the 15 second media sound byte for the evening news. We are all cheated in the process. Even in the House and Senate, where you can tune into C-Span and see a representative speaking at length about a given topic, what you don’t see is the rest of the chamber which is, usually, empty. The speech is for the cameras and the Congressional Record, it isn’t for an exchange of ideas.
It is about time somebody decided to treat us like adults. It is about time somebody brought facts and rational thought to a discussion. Obama challenged not only the Republican talking points but also the accepted “fact” that real debate is bad politics. He won on the facts, but he also won on the politics, and yet, it is hard to feel that the real winner was anyone but us.
If this represents the leadership style President Obama will follow for his second year in office, Democrats have a lot to be excited about- and Republicans had better adapt quickly. You can only bring a knife to so many gun fights before you have no more gun fights in your future.
1. CongressMatters explains how the “sidecar” option can work to pass health care reform.
2. Ezra Klein notes that the devil is in the details of Obama’s proposed spending freeze, but the freeze risks hurting the poor the most.
3. President Obama was selected for jury duty in Chicago. Apparently someone in Chicago didn’t think he might be busy.
4. The students and faculty at Seton Hall University School of Law have done a remarkable job of reconstructing the events that lead to the death of three detainees at the Guantanamo Bay detention facility. Their full report and findings can be found here.
5. The US law firm of Perkins Coie represented pro bono Salim Ahmed Hamdan, a Guantanamo Bay detainee whose case ultimately found its way to the US Supreme Court. The attorneys who worked on the case gave a video presentation of their experiences which can be viewed here.
6. At least one Republican Senator promises to use all procedural mechanisms available to stop the “sidecar” option. Why is it that using reconciliation to amend a bill is deemed “trickery” and “shenanigans” but using the filibuster to stop 59 Senators from passing legislation isn’t?
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