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.

Tags: 1st Amendment, constitution, court opinions