Friday, September 4, 2009

The Supreme Court Revisits Corporations as Persons

The Supreme Court will be hearing a very important case the 9th this month. They are going to revisit an old case. Why? Because The Right wants them to do so? No, because Roberts and Scalia want to do so.

At issue is whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. Re-arguments in the Supreme Court are rare, and the justices’ decision to call for one here may have been prompted by lingering questions about just how far campaign finance laws, including McCain-Feingold, may go in regulating campaign spending by corporations.

Supreme Court to Revisit ‘Hillary’ Documentary by Adam Liptak, August 29, 2009

The words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;
( ).

I found this on, in a case from 1886 Santa Clara County V Southern Pacific Railroad Company corporations Chief Justice Morrison R. Waite announced:
"The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

Now I know that there is a term "Legal Person" supposedly different than "natural person". But, I believe we have seen the lines blurring. I feel corporations, the boards, will keep attempting to blur those lines as it suits them to do so for personal gain,and personal political agendas, whether for profit or because they know they are more capable than the peon classes. Such as Insurance companies deciding what care you should receive, when you should receive it, and where you should receive it. (Oh but isn't that what the claim is against government run health care?)
Basically remember the first amendment is the free speech, religion, press, petition the government, and assembly amendment. The fifth amendment is, among other things, due process, double jeopardy, and compensation for properties seized for the public good.
According to other sources I read in the last few days, before this case The John Marshall Court had previously declared a corporation was a person. Since the Court likes to use precedent, when it suits a particular Court, maybe this is one precedent that needs revisited or thrown out. I believe it was really to do with business across state lines as well as state charters and taxation.
There are arguments that state the Court did not actually say the part about corporations being “persons” that the Court reporter actually inserted in a head note the part about corporations are persons therefore equal under the law to persons.
Since then Corporations have often sought their “persons” rights in various cases. The attempts result from some financial, profit, motive. In the case of a licensing issue in VA. And a N.Y. Insurance company, Paul vs. VA, the State Supreme Court basically said Insurance did not fall Interstate Commerce so often used by Congress to legislate. I believe that lasted until 1944. Insurance companies prefer to be under federal regs that lets them sell from and in state to state without meeting the state requirements imposed. How interesting is that? One moment corporate America is yelling about too much Federal regulation yet, when it suits them they want to be under Federal regulation. States rights or no states rights which shall it be? Strong, “invasive” Federal Government or States Rights?
Now I wonder when a corporation will also get the “right to keep and bare arms” as in the second Amendment. How would that play out? As individuals already have the “right to carry” would the corporation now buy the weapons. How will they apply for permits? Who will be the one checked? Or will all of the Corporation and its stockholders and employees have to apply? What if an employee would not normally get a permit? I wonder too why a corporation as a person cannot have its own religion and therefore a tax-exempt status. By the way did you know that some corporations and universities now own patents to some of your genes. Yep they really do.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Title 35 section 101.
Will we change the way corporations are taxed? As a person shouldn't they be taxed as individuals as well as a separate person. Believe it or not there are discussions about the very taxation problems.

Arguments for and Against Corporations as Persons

According to proponents, in a capitalistic society the government is not a regulator of corporations but has a duty to protect the rights of corporations. They may also argue that forming a corporation is an inalienable right. On the one hand the corporation is made up of individuals with the rights of the individuals. (Opponents argue that the corporation gets rights of an individual and the individual has rights thus now the individuals involved are no longer individuals but get the rights of two people.) On the other hand it is argued that the investors are only liable to the extent of their investment. That the stockholders should not be held responsible for decisions they do not make but that are made for them by the boards, CEO, managers, and employees. That is awfully close to saying the voters should not be held responsible for the decisions made for them by their elected officials. If that were true, the voter should pay no more than the initial investment. The voters are held responsible for paying the bills and paying for the wars decided for them in an ongoing fashion. The soldier is certainly held responsible by the use of his or her very life. Now I begin to see how some could use these arguments as a way to avoid paying taxes.
Other proponents of corporations as “legal persons” do say that the corporation is only entitled to parts of the 1st and 5th amendments. They only mention the right to speak on Commercial Matters, the right to privacy of trade secrets and internal corporate decisions, the right to be paid for government confiscated properties, and the right to do business without undue regulation. Who decides? Judges and lawyers. Let us hope they are fair and uninfluenced. If that is true then why the revisit to a case from the 90's.
Other proponents of corporations and their place in a capitalistic society believe that in regulations come stagnation. That regulation is the block to creativity and drive in the business sector. Yet I am sure of stories of large corporations buying small businesses that would offer competition only to keep the new ideas from seeing further light of day. I give you the purchase and dismantling of public transportation systems by a certain auto-manufacturer by any means. Now many urban areas are struggling to come up with the funding and the votes to build systems that is pretty much an expanded versions of the same system again. I think corporations themselves often times stifle creativity and drive.
When speaking or writing against corporations as “persons” one is reminded that a corporation is given infinite life, reside in more than one country, and though officers may, corporations cannot go to jail. Also it is argued that corporations are not mentioned in the Constitution. Some corporations use their rights to deny rights to others. (Insurance companies?)
So much to learn so much to take in and understand. I believe I will put these issues on my “keep researching” list for future reference. I have a feeling by the time I begin to get the full scope, pros and cons, everything or nothing will change. Depending on what corporations want. Sorry, I really feel our capitalistic society has gone a little far.
If you know of some great or not so great information on campaign reform or corporations as persons let us all in on it. Though I doubt anything will be done especially under the Robert's Court.
And this my friends is why I voted for a Democrat-The Supreme Court. We are stuck with Bush appointees for years, Chief Justice Roberts is only 54. Justices stay pretty much for life but hopefully keeping a few not-so-liberal-liberals on the court will help. Sotamayor, to me, is another of Obama's pragmatisms. If this President gets to appoint another Justice, I hope he puts a “lefty” up but then he has been warned by the Right that he will not get far with that. The Right will control whether they are in the majority or the minority.


  1. You have done a lot of good work here.. This makes me think so I like it. This is an area that I have not ever been introduced to before that I can remember anyway. I have my opinions of corporations and the many tricks that they use, but thinking of them as a person, well, I think that is wrong. Aren't they more of a collective or horde? I'm still trying to wrap my mind around this. later

  2. Thomas,
    Thanks for the comment again.
    Also you are I think, reading Ayn Rand. She is mentioned some as a person who very much supported corps as people as capitalism in its pure sense.
    It is a very tangled and contorted subject legally. As I reviewed cases and writings I could see the need for the "commercial" readings of the 1st and 5th amendments but think the "commercial" is blurring to the point of the ridiculous now.
    Funny thing is Bill Moyers' Journal did a whole show last night about it.
    Two of the lawyers were on and try to follow them. Very interesting. Just Google and it is probably on-line or will be soon. Our PBS station re runs the show on Sunday morning.
    Worth watching.
    The other problem I see is we have an activist court for sure. This time where are the Repubs that like to yell about legislating from the bench.
    I keep trying to read the cases or at least their summaries. Hard stuff. But, I will keep working on it.
    By the way, if you invest a mark on a ballot for an administration that won are you responsible but the guy that didn't vote for them is not. Or the guy that didn't vote at all, what are his rights to refuse to pay for the Governments decisions. There are two or three cases right now by soldiers refusing to go to "our wars" based on the legality of the war or the legality of Obama, foreign born, being Commander in Chief.
    Investment liability carried to the extreme among other things?
    I can see many off the wall problems with revising cases already decided concerning corporations and natural people. Think not?
    That is why I mention the soldier and the legality of Obama. Such ridiculous things happen.

  3. RE "Now I wonder when a corporation will also get the “right to keep and bare arms” as in the second Amendment. How would that play out?"

    Maybe it would work out about like it did back in the early 1900's when Henry Ford's goons in MI and several similar mining company goon squads in WV and CO slaughtered men, women and children that were protesting or striking.

    Sounds nuts right? But not so long ago, so did many things we have seen go on in the last few years here in the USA.

  4. Now there is a fine part of our collective history I had not thought of in years.
    People are not paying much attention to this issue. I wish they would.
    there was the lower court ruling recently about 527 groups too. In that one Justice Roberts was quoted by the judge as he ruled. Basically he said that we shouldn't get carried away with these campaign laws.
    The problem here is the courts are using free speech as an excuse to legislate from the bench.
    All of my politically, governmental, aware life I figure the Court was the great arbitrator when the other two branches got too far one way or the other.
    Now I am not so sure.