Citizens United and the Bankruptcy of Conservative Originalism at the Supreme Court

by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center.  This piece is cross-posted at ACSblog, and is the third installment of a four-part debate hosted by ACSblog on the constitutional rights of corporations between Mr. Gans and Michael S. Greve of the American Enterprise Institute.  All posts from the debate are available here.

Last Thursday, in Citizens United v. FEC, the Supreme Court announced, for the first time in history, that corporations have the same rights as individuals to spend money on the electoral process, and corporate personhood was at the heart of the Court’s opinion. In Justice Kennedy’s view, corporations are simply “associations of citizens,” and therefore deserve the same constitution rights as living persons. The Court’s opinion interred a century of campaign finance law built on the idea that corporate participation in the electoral process must be strictly regulated for the sake of our democracy.

The Court’s conservative majority – including the Justices who repeatedly profess adherence to the Constitution’s original meaning – turned their back on our Constitution’s text and history, ignoring that the Constitution was written for and by “We the People,” and that from the framing on, it has been blackletter law that corporations are artificial creatures of the State, subject to government oversight to ensure that they do not abuse the special privileges granted to them to succeed in business. As Justice Stevens’ brilliant dissent put it, “the Framers took it as given that corporations could be comprehensively regulated in the public welfare.” Rather than own up to constitutional first principles, both Kennedy’s majority opinion and Justice Scalia’s concurrence blithely dismissed them. Both Kennedy and Scalia repeatedly relied on constitutional protection for the media in arguing that the Constitution gives the same rights to corporations and the people, ignoring that the press were the only private business given explicit constitutional protection in the Constitution. Justice Scalia even goes so far as to suggest that the framers would actually have liked modern corporations if they only they had the chance to see them in action. Those who take constitutional text and history seriously should be appalled that this is what passes for legitimate argument by the leading originalist on the Court.

In fact, Michael Greve’s initial take is more in line with Justice Stevens’ dissent than either Justice Kennedy’s majority opinion or Justice Scalia’s concurring opinion. It was Stevens’ dissent, not the 5-justice conservative majority, that adopted Greve’s “common sense” position: “corporations do not enjoy the same rights as individuals.” Kennedy’s majority opinion, on the other hand, rejected this “sensible” notion, treating corporations as nothing more than “associations of citizens” deserving equal rights as living persons.

To be sure, Greve, much like Kennedy and Scalia, tries to get out from under the Constitution’s text and history. Taking pot shots at CAC’s forthcoming report, “A Capitalist Joker”: Corporations, Corporate Personhood, and the Constitution, Greve derides us for focusing on what the framing-era generation had to say about the role of corporations under the Constitution. This, Greve says, is “pseudo-originalism.” Perhaps I’m mistaken, but I had thought that understanding the framers’ Constitution was a big part of what originalism is all about.

Then, Greve makes the point that modern corporations look nothing like the ones that existed at the time of the framing. This is, of course, true but does not give Greve any reasons for ignoring the history we lay out in A Capitalist Joker, which begins at the Founding and covers virtually every era in American history. Corporations have changed since the Founding – beginning in the 1830s, states enacted general incorporation laws that made it easier to create corporations because having legislatures vote to approve individual charters led to rampant corruption – but the idea that government has a special role in policing corporations has not. That framing-era bedrock principle is reflected in a century of Supreme Court precedent consistently holding that corporations are not protected by the Fifth Amendment Self-Incrimination Clause; it is reflected in a host of Supreme Court precedents recognizing that governments have broader search-and-seizure authority over corporations; and, until last Thursday’s ruling in Citizens United, it was reflected in a century of campaign finance law and Supreme Court precedent recognizing that corporations did not have the same rights to spend money on elections as living breathing persons.

We shouldn’t forget how we got here. As explained in more detail in A Capitalist Joker, Citizens United is a culmination of a forty-year struggle that began in earnest in 1971 when Lewis Powell advised the Chamber of Commerce that “political power is necessary” for corporations and “must be assiduously cultivated” and urged corporations to look to the courts for relief. Citizens United also represents a return to the idea of equal constitutional rights for corporations that was embraced briefly by the Supreme Court in the Lochner-era, a era universally viewed to be among the worst in Supreme Court history. Far from heeding our constitutional traditions, the five conservative Justices on the Roberts Court saw the chance to write the idea of equal constitutional rights for corporations back into the Constitution, and took it, casting aside both first principles and precedent to get there.

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