“Congress shall make no law … abridging the freedom of speech … .”
-U.S. Constitution, Amendment I
Ever meet a corporation? Ever have an extended conversation with one? Ever invite one to a party? Ever have one as a best friend?
The Bill of Rights, which comprise the first ten amendments to the U.S. Constitution, was ratified in December of 1791, a scant two and a half years after the original document, which established the supreme law of the land, had been ratified by the original states to the union.
I mention this fact because, at the time, nothing like the present day corporation existed.
The first corporations in the United States formed in the mid-nineteenth century, and extensive laws recognizing their existence were not promulgated until later in that century. Historically, corporations formed to provide protection to individuals who engaged in business affairs from being personally responsible for their business decisions and activities. It was a way to foster an expanded economic climate such as developed with the explosion of industry in what became known as the Industrial Revolution.
Prior to that period in the nation’s history, the idea of a corporation as a shield against personal liability would have been antithetical to the American economic scene. Much of that early economy was still agrarian, and little of it involved financial dealings in which large groups of individuals contributed money to a business so as to advance the activities of the business while profiting from the business’s profits, all for the public good.
The obvious conclusion to be drawn from these facts is that those who wrote and ratified the Bill of Rights had no thought of extending the rights therein guaranteed to anything like a corporation, whether legally recognized or merely de facto existent.
And yet, in spite of this indisputable fact, a five-member majority of the nine-member Supreme Court decided last week that the free speech guarantee in the First Amendment applies with equal force to corporations and, presumably, to trade unions, associations and other non-human entities as well.
The implications of this decision (in a case entitled Citizens United v. the Federal Election Commission) are devastating for a nation whose democratic principles are already suffering mightily from the adverse effect of money in its electoral processes. What makes the decision even harder to swallow is the makeup of the majority. All five of the justices who signed on to the lead opinion by Justice Anthony Kennedy have espoused to the “strict constructionist” method of interpreting the Constitution.
That method, simply stated, seeks to interpret the Constitution as the founders intended it. And since the founders certainly did not have non-human entities that didn’t even exist at the time in mind when the Bill of Rights was enacted, it is impossible to believe that they intended to extend the guarantee of free speech to those entities.
In fact, any self-respecting strict constructionist would be loathe to even so much as suggest such a possibility in any other context but the one that the Court chose to deal with in the Citizens United case. (And don’t let that name fool you; Citizens United is not a group of human beings formed for the purpose of bringing something akin to a class action suit. It’s a corporation formed for the purpose of producing political ads, such as the one in issue before the Court: a full-length movie offered as a political advertisement denigrating the then-presidential candidacy of Hillary Clinton.)
And so, if the majority opinion in the case does nothing else, it surely exposes the hypocrisy of the strict constructionists’ “principles.” Likewise, the case also reveals the judicial activism that the right wing of the court now embraces (and has embraced for years, contrary to public perceptions that are largely promulgated by the “right-wing” media).
To be specific, in ruling as it did, the strict constructionists on the Court took a case that could easily have been decided without reaching the Constitutional issue (a key step characteristic of an “activist” Court) and then overruled not one, but two prior Court decisions, thereby rejecting the doctrine of stare decisis (another key step characteristic of an “activist” Court).
Thus the current majority wing of the Court is fully exposed by its decision in Citizens United to be anything but strict constructionist and to be the embodiment of an “activist” Court. Needless to say, this gang of five is composed entirely of Republican presidential appointees (Scalia by Reagan in 1986, Kennedy by Reagan in 1988, Thomas by the first Bush in 1991, Roberts by the second Bush in 2005, and Alito by the same Bush in 2006).
But the unveiling of the true character of the Court’s majority is at best a silver lining to what is otherwise a horrendous blow to America’s great experiment in democracy. Once the full implications of the decision take effect, political campaigns are likely to look more like McDonald’s commercials than debates over weighty issues like war and peace.
How will this change occur? Quite simply, what the decision allows is corporate political speech not just on ideas or policies, but in favor of (or in opposition to) specific candidates for office. In other words, what is now on tap in American politics is the commercialization of elections.
Some will say that we are already at that state in the deterioration of American democracy. And, to be sure, we are a long way from the purity of the Lincoln-Douglas debates.
But now, we will have the marketing departments of our largest corporations putting together glitzy political ads for Joe Smith or Jane Jones, proclaiming them to be “scientifically-proven” to promote the “best results” in a test of comparable candidates.
And their smiles will be brighter. For sure.
You said, “The obvious conclusion to be drawn from these facts is that those who wrote and ratified the Bill of Rights had no thought of extending the rights therein guaranteed to anything like a corporation, whether legally recognized or merely de facto existent.”
Unions and outfits like the despicable George Soros’ Tides Foundation and its multiple tentacles into every part of society have had their privileges to demean everything most Americans hold dear. I think the ruling only addressed the legal person issue but still bans foreign corporations from participation. John Roberts all but gave Obama the finger last night at the SOU.
Coming from an age of relative innocence, I’m sure the Founders had no idea women would demand the unfettered right to murder their children, the health czar to leave no option but euthanization for folks over 59 who aren’t “economically viable,” or for same sex couples to “marry” – or divorce.
The fact that these things are even deliberated demonstrates what Obama was reported to have told Putin last November – “The US Constitution is dead!” Like my now worthless Saturn, are your Constitutional credentials now moot? Or will it just become more titillating when a 5-4 decision allows us to marry our goats?
They did rely on biblical tenets to draw from as well as the fundamental themes of the Declaration of Independence which set the tone and moral basis for the Constitution and Bill of Rights.
Speaking of the Declaration, since you’re a Constitutional scholar, do you have a cogent definition of “pretended legislation,” complete with a few examples from King George and the current ruling elite?
Although I don’t agree with it, let’s accept your conclusion that the current Court and this decision in particular is “conservative” and “activist.” Well, after 80 years of liberal judicial activism, you reap what you sow. The “living, breathing” constitution has grown up.
As to the practical effect of the decision, I wouldn’t sweat it. Despite the conventional “wisdom,” money does not buy elections. If it did, Ross Perot, Steve Forbes, and Mitt Romney would all have had their turn in the oval office. To the contrary, money flows to those who have popular positions and personas–politics is a marketplace as well. Obama’s fantastic fundraising success during the last election is a perfect example. Money didn’t make him a great candidate, being a great candidate drew to him pre-election votes in the form of contributions.
I’d be much more interested in how you can avoid the conclusion that the opinion represents judicial activism than I am in your “reap what you sow” line, Tom.
As for your don’t sweat it thought, I think you miss my point, which is that campaigns will now feature even less real debate of legitimate issues and will instead consist of even more glitzy ads that have absolutely nothing to do with the type of government the candidates would represent. It’s the effect on our democracy that I deplore in this decision by the Court, and I don’t see how any patriotic American can be sanguine about that likely result.
Ok, here goes. The decision is not “activist.” No statutes were arbitrarily ignored and no rights were invented or inferred from outside the margins of the Constitution (no penumbras here), which is the definition of judicial activism. The First Amendment is the First Amendment and Kennedy is its most articulate and consistent defender. As to political speach, the Court has time and again held that government cannot be the arbitor of what is good speach and what is bad speach–more information is always better. Having chosen it as the namesake for this blog, you surely understand the proper functioning of the Marketplace of Ideas. SD does not demand that all decisions never be disturbed and the decisions Citizens overturned were wrongly decided. To fix the state of the law using well-establish Constitutional principles is not activism.
But again, don’t sweat it. There won’t be less “real” debate–there will be more and it will be unfettered. It seems woefully inconsistent (and dangerous) that a corporation in the form of the New York Times or Fox News was allowed to exercise its First Amendment rights within 60 days of an election and Citizens United, labor unions, the National Rifle Association, or the ACLU were not (as you know, the ACLU filed an AC brief for Citizens). Now everyone gets their say, regardless of how the people organize themselves to get their message out. That is healthy for our democracy, not detrimental. Having government decide what information is good verses “glitz” is not.
To Jerry Todd: What?!
I wasn’t aware that women were demanding the “unfettered right to murder their children.” I don’t recall seeing that language in any of the seminal cases. Silly me, I thought it was that people believe that women should have control and dominion over their own bodies, the choice to procreate, to have a say about decisions that have a direct effect on the rest of their lives, and the freedom to avoid motherhood as a matter of privacy.
Because that’s what Griswold v. Conneticut, Roe v Wade, and Case are really all about; protecting an individual’s privacy against government intrusion. And the people who are against this don’t give a good goddamn about children or human life. If they did they wouldn’t be so quick to cut programs that are designed to aid the impoverished. And programs providing milk, diapers, and baby formula that all those fetuses everyone’s trying protect. Cuz guess what? Without food, those babies will become malnourished, and get really, really sick and yes, die. Except it’s a whole lot worse for them now that they can actually feel pain.
It’s amazing that the same people who scream about too much government interference are the same people are always trying to get into my bedroom–and in my uterus.
And no one’s killing old people. And if we actually provided health care to those who needed it, when they needed, early on, then we wouldn’t wait until people are terminal, and experiencing such agony that the sweet release of death is the only humane option left.
And why do you put “marry” in quotes when discussing same sex couples? Is that really necessary? Must we minimize and objectify people at every turn?
Corporations didn’t exist when the Founding Fathers drafted the Constitution. Women, blacks, and gay people did. Except that none of them were considered human at the time. Women and everyone who wasn’t a WASP were merely the property of white men to enslave, beat, and rape, repeatedly and mercilessly. You see, this property right was placed above freedom, liberty, and the pain and suffering of a whole lot of actual human beings.
The Constitution’s primary function is to protect the individual from government tyranny. Isn’t that what’s it was all about? Getting out from under King George’s [III] thumb?
With gay marriage, reproductive rights, et al, the Supreme Court wasn’t creating a new right, or asking them to recognize new rights. Let’s take marriage as an example. The Court has repeatedly said that the marriage is a fundamental right. Except that some people believe that marriage is reserved for one man and one woman only. This belief, excludes gay people. Yet the Supreme Court has held that marriage is a right. It’s a liberty right and a privacy right, and an expression of our humanity which everyone agrees are all part of the Constitution. Separate but equal is unacceptable at this point in our history.
Opponents always point out that gay people have “civil unions” and “domestic partnerships” so what are they bitching about, right? Well, black people had their own drinking fountains and their own schools, too. But most people don’t attack the reasoning in Brown v. Board even though you can’t really rely on the intent of the Framer’s there.
Mr. Todd, your reference to human beings marrying livestock is just asinine (not to mention offensive). Where did you even find that reasoning? Surely it must be an antique by now. That tired slippery slope argument has already been tried –by the opponents of miscegenation laws. If you can’t see the difference between two consenting adults who love each other, and an adult marrying a goat, then. . . I don’t know what else to say.
The Drafter’s were concerned about protecting individuals, not huge conglomerates. I’ll say it again: The bill of rights, and the Constitution as a whole was about protecting people. Natural, organic, human beings.
We may not ever know what the Framer’s true intent was when drafting the First Amendment, but I think it’s safe to assume (in light of everything we do know) that it was not about allowing big corporations to funnel obscene amounts of money to contaminate, manipulate, and ultimately control the democratic process.
At its core, the First Amendment is about the freedom of expression, ideas, etc. It was a reaction against the suppression of speech and the press present in English society. So the First Amend. was meant to free the restraints on publication and speech against the government (which was not tolerated at all). It was also to prohibit the prosecution of individuals for “seditious libel.”
And yes, Tom, the “marketplace of ideas” is the classic metaphor used when discussing the importance of freedom of speech. But now tell the rest of it. Don’t just pull a pretty metaphor out of context. I don’t think Justice Holmes would appreciate it. What Holmes actually wrote in his dissent was, “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” Abrams v. United States, 250 U.S 616, 630 (1919). It suggests, truth emerges from competition; the clash of ideas that is a natural byproduct of a truly free “marketplace.” And yes, the discovery of truth was considered important.
The concern that some people ( including the Above-Named-Columnist, if I’m correct) have with the Citizens United holding is that these corporations have more resources and access powerful media to get their voices heard. And we can’t trust them to give us the truth (especially since there is so much evidence to the contrary). So the end result is a few people controlling what information is disseminated, and how that information is presented (or misrepresented).
And because these entities have much more power and endless resources, it results in a negative feedback loop. It suppresses the free flow of information, the very evil that this freedom is designed to preserve. It hinders the marketplace because it hinders, nay, destroys the competition, making it impossible for individuals to get their voices heard–to get their ideas into the marketplace. So we are left with limited view points.
This is completely counter to our system, and to the Constitution. A law or a judicial order that prevents speech from occurring is a clear “restraint.” I think Justice Kennedy got it backwards. This sort of thing will harm the freedom of expression more than by denying groups like Citizens United any alleged “right.”
A few people with too much power ultimately leads to tyranny.
Let’s not forget the spirit of the law and why the Framers did what they did, wrote what they wrote; and feared what they feared. Otherwise, our basic freedoms will (continue to) slowly erode and then it will become harder to spot the difference between a country like the United States of America and the Islamic Republic of Iran.