Archive for January, 2010


Corporate Personhood and Citizens United

   Posted by: Robert    in Law

Much has been made in the press and the blogosphere about the Supreme Court’s supposed embrace of some concept of corporate “personhood” falling out of the decision in Citizens United v. FEC.  Most of this discussion seems to key from the dissent filed by Justice Stevens, which spends a fair amount of time diving into that very issue.  Exactly where this concept is to be found in the majority opinion eludes me.  Justice Kennedy’s writing may take a long and winding road to get to the same place that The Chief Justice and Justice Scalia would reach in far fewer pages, but even he avoids wandering off into the wilderness of anthropomorphisis.  Nor does the Constitution offer any reason to think that corporate personhood is somehow necessary to support the Court’s holding.

The language of the First Amendment is simple and absolute: “Congress shall make no law … abridging the freedom of speech.”  Based on that language, the operation of the amendment is not difficult to understand: It points out a thing which Congress may not do.  The amendment is written without reference to persons or corporations and without reference to the type, content, or character of speech.  If a law is an abridgment of the freedom of speech, Congress shall make no law causing it.

Nobody has argued that the law in question is anything other than an abridgment of (corporate) speech.

The lack of reference to personhood in the First Amendment is noteworthy in light of some of the other “rights” to which a person-corporation would presumably be entitled.  The most frequent straw man that I have seen is to the right of a person-corporation to vote.  But this comparison is untenable when the text of the First Amendment is compared to the text of the Fifteenth, which speaks of “[t]he right of the citizens of the United States.” (emphasis added)  Neither the majority in Citizens United nor the First Amendment rest the right secured on citizenship, whereas the Fifteenth Amendment does so explicitly.

The notion that Citizens United is somehow dependent on a concept of corporate personhood is further discredited by considering the original understanding of what the Bill of Rights sought to accomplish.  One of the founding era arguments against the Bill of Rights was the understanding that none of the things which it explicitly forbade Congress from doing were within Congress’s power in the first place.  Nowhere do the Articles of the Constitution suggest that Congress has the authority to limit the freedom of speech.  Nowhere does the Constitution suggest that Congress gets additional power when legislating against a corporation.  The Articles, thus, reinforce the understanding that corporate personhood is entirely irrelevant to the conclusions reached by the Court in Citizens United.

Although the attempted reducto ad absurdum argument of corporate personhood sounds interesting, in reality it is little more than a meaningless straw man.  Corporate personhood is not required for the Court to have decided Citizens United as it did, and the Court gave no particular indication that it was doing so.  While there may be other precedents that point in the direction of regarding corporations as human beings, I am sure that Citizens United, if read honestly, does not belong listed among them.

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Brown Teabags Coakley

   Posted by: Izzymandias    in Uncategorized

What are the important things to take away from tonight?

1) A well-sold conservative message can work, even in Ted Kennedy’s home town. While it may be that Scott Brown isn’t the most solid conservative out there, his message and campaign were pure Reagan.

2) Standing up for yourself works. Brown refused to allow his opponents to define him or frame the issues. He publicly called them on their antics. Shades of Reagan’s “there they go again.”

3) If Massachusetts isn’t safe, NOWHERE is safe. And, tomorrow, every citizen needs to call their senators and congressmen to make sure they know that. If Obamacare can topple Massachusetts, then Virginia can’t be far behind… Sen. Warner… Sen. Webb?

4) Obamacare is Pyrrhic… and it hasn’t even passed yet. Wait until the taxes start in. If, as many are expecting, the House rolls over and passes the Senate version of the bill, several election cycles will pass between when we start paying more and when people can pull up to the public teat.

5) It helps to do a nude spread in Cosmo. At the very least, that should keep Newt off the radar.

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Maybe a base hit?

   Posted by: Robert    in Law

I always find it troubling when I disagree with Matt Franck, but at least partial disagreement is where I find myself today.  In a post on Bench Memos, he discusses what he believes to be the judicial role in evaluating the constitutionality of the federal health care bill.  He doubts that there is a proper role for the courts in evaluating the health care bill, including the individual mandate that the law would impose.  I believe that the mandate does fall within the scope of judicial review, though not on the basis of anything Roger Pilon or George Will had to say.

The basic function of the judicial process is to determine what law applies to a given set of facts.  In making that determination, courts look to the laws passed by Congress, to the dictates of treaties and other legally binding agreements to which the US is a party, and to the Constitution to determine which laws are applicable.  Courts have a number of ways to deal with laws that conflict with one another.  Among statutes, or between statutes and treaties, the usual rule is that whatever happened most recently overrides older law if the conflict is unavoidable.  The famous exception to this usual rule applies when a law comes up against the Constitution; in that case, the Constitution overrides the statute or treaty. Determining whether the Constitution has overridden some other law is what we know as Judicial Review.  And, while we regularly talk about courts “striking down” laws, my understanding of the physics of that action are really closer to a court saying “we cannot apply this law to any set of facts.”  The statute still exists, but the law it creates is unusable.

Implicit in that entire process is the fact that what the courts are evaluating are, indeed, laws.  Because the (originalist) Constitution only enables Congress to pass laws within certain enumerated categories, it naturally follows that anything which does not follow from that authority cannot be considered a law. Because courts are not in the business of applying things which are not laws, it must follow that the courts cannot find constitutional any penalty which results from a law beyond the federal government’s authority to create.

In other words, the government may very well impose an individual mandate and hope that most people comply, and their doing so would seem to be just outside the realm of court review.  But the instant they impose a penalty on people who do not obey the individual mandate — the instant they seek to impose a fine — the courts now have a subject to address which is well inside the proper judicial role.  The courts can, and should, find the individual mandate unconstitutional because it imposes penalties which the federal government has no authority to impose.

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Terrorist Venue Shopping

   Posted by: Robert    in Law, Philosophy

Pretty much ever since the Christmas Eve bombing attempt, the news and blogosphere has been filled with commentary regarding the proper venue for trying individuals like the Christmas Bomber.  With President Obama having decided that the Christmas Bomber is to be tried in civilian court, the conservative press has been filled with objections very reminiscent of those used in connection with Obama’s deeply confused policy of how to deal with the prisoners at Guantanamo.  Although I instinctively agree that the Christmas Bomber belongs in military court, I have a hard time identifying any useful principle which differentiates him from other domestic terrorists like the Oklahoma City bomber, who certainly do belong in civilian court.

People like the Christmas Bomber sit at an interesting mid point between domestic terrorists like Timothy McVeigh and radical Islamic terrorists like those detained at Guantanamo Bay.  There is little doubt that the Christmas Bomber is, himself, a radical Islamic terrorist.  However, despite his allegiance, the details of his attack more closely mirror the events of Guantanamo Bay than they do the events on the foreign battlefield where the Guantanamo detainees were captured — the Christmas Bomber was legally traveling to America and he was arrested on American soil.

All of the arguments holding that the Christmas Bomber should be tried by the military flow, ultimately, from his association with al Qaeda.  This begs the question of whether a person’s trial rights depend in some fundamental way on the groups with which they associate.  There is a good deal of logic to answering that question affirmatively.  After all, al Qaeda is a known terrorist organization which has accomplished multiple attacks against the United States both at home and overseas, and which is willing to say that they are at war with us, even if we are unwilling to return the courtesy.  On the other hand, the very fact that we are unwilling to say that we are at war with al Qaeda (or to do so only haphazardly) is symptomatic with a major problem with predicating rights on associations.

The trouble with linking rights to associations is the arbitrary nature of how associations might be viewed.  The merits of a particular group are decided by the government; al Qaeda may look and act like a terrorist organization, but the United States only recognizes them as such because of decisions made by the folks in Washington DC.  But aside from the sheer irrationality of the conclusion, what prevents those same politicians from declaring another group — say, America’s veterans — to be terrorists undeserving of rights?

In the absence of a deep principle separating terrorist organizations from politically disfavored groups or McVeigh-style domestic terrorists, I find it troubling that so many conservatives are so eager to put the Christmas Bomber into military detention, even though I agree that it is where he belongs.  Even more troubling, though, is the fact that even though I agree he belongs in the military system, I can think of no great principle separating him from McVeigh.

In the absence of such a principle, I find myself in reluctant disagreement with the prevailing wisdom of my fellow conservatives.  The power to commit a person, captured on American soil, to military rather than civilian detention is too great a power to leave in the hands of government discretion.  The potential for abuse as a means to silence political rather than national enemies is too great to be left available to this or any future President.

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Privileges, Immunities, and Incorporation

   Posted by: Robert    in Law

I have recently been spending some time thinking about some of the arguments being made in the Chicago handgun case, McDonald v. City of Chicago, currently before the Supreme Court.  At issue in that case is whether it is constitutional for states and local governments to ban the possession of handguns, in light of last year’s ruling n DC v. Heller.  The case naturally hinges on the question of incorporation, a doctrine created and selectively applied by the Supreme Court to bind portions of the Bill of Rights against the states through the Due Process Clause of the 14th Amendment.  Legal conservatives, like those bringing McDonald, have long complained that the Due Process Clause, properly understood, contains no such doctrine.  To supplement the shortfall, they have brought before the Supreme Court an argument that the 2nd Amendment is incorporated by the Privileges and Immunities Clause of the 14th Amendment.  I do not think this is so.

The history of the Privileges and Immunities Clause in the 14th Amendment is best understood by reference to the Slaughterhouse Cases which gave the clause its first judicial interpretation.  The Slaughterhouse Cases involved a challenge to a state law in which Louisiana established a state-wide slaughterhouse corporation and prohibited the slaughter of animals in any facility not operated by that corporation.  The law was challenged broadly on 14th Amendment grounds, including the Privileges and Immunities Clause.

Critics contend that the Slaughterhouse Cases effectively “gutted” the Privileges and Immunities Clause and now hope to use that Clause as a vehicle for a new, “conservative” foundation for incorporation.  But would a flawed doctrine by any other line of constitutional authority not smell as sweet to the activists who seek to promote the rule of judges over the text of the Constitution?  Are the advocates in McDonald prepared to argue that years of complaining about the constitutional fallacy of “substantive due process” is really no more interesting than a semantic disagreement; that the judicial authority they have decried has been there the whole time, just under a different name?

A simple reading of the text and reference to the parallel P&I provision of the original Constitution reveals that the language of the Privileges and Immunities Clause cannot support incorporation.  In Slaughterhouse, the Supreme Court noted that “[The original P&I Clause’s] sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”  In other words, a state cannot discriminate against the citizens of another state.

The 14th Amendment takes the same language and adds only the slightest change.  Whereas the original P&I Clause referred to the “Citizens of the several States” (US Const. Article 4, Section 1), the new clause referred to the “citizens of the United States.” (US Const. Amdt. 14, Section 1)  This second clause comes immediately after a blanket grant of US citizenship to “all persons born or naturalized in the United States” and of state citizenship to “the state wherein they reside.”  Anyone residing in a state, or who otherwise has state citizenship, is covered by the original P&I Clause.  However, the 14th Amendment created a class of people (admittedly more hypothetical than real) who may be citizens of the United States, having been “born or naturalized” here, but do not “reside” in any state, and therefore hold no state citizenship.  The 14th Amendment P&I Clause extends coverage to those people as well.

Nowhere can I recall having heard an argument that the privileges and immunities granted by any state are automatically incorporated against the rest through the original Privileges and Immunities Clause.  Such an understanding of the P&I Clause would surely have seemed bizarre to the founders, and is strange to us today.  The minor linguistic changes between the original and the 14th Amendment P&I clauses are certainly not significant enough to invite the creation of an incorporation doctrine.

As the Supreme Court considered in the Slaughterhouse Cases (with emphasis added):

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the 78 plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

I am equally convinced, and believe that the P&I argument in McDonald must fail.

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